The Brady Flap - A Courtroom Altercation Between the Federal Judge and USA Prosecutors in the U.S. v. Theodore F. Stevens case, D.C. 08-002131
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Examples of Brady material include, (a) prosecutor agreement for leniency or agreement not to prosecute a witness in exchange for the witness's testimony, (b) exculpatory evidence known only to police or investigators (Jencks is further delimited to material in possession of prosecutors). Brady material is considered suppressed only if on defendant request and resulting Court order for the material it has agreed meets Brady rules, the prosecutors then fail to produce it.
Giglio v. U.S., 405 U.S. 150 (1972), no 70-29, reinforces the specific application of Brady material rules. Justice Burger authored this Supreme majority opinion where the application of 1963 Brady rules involved the credibility of testimony of a key witness, stating " without it there could have been no indictment and no evidence to carry the case to the jury. " In Giglio the prosecutors failed to disclose the existence and extent of a leniency deal with their key witness, and, while this fact was not on its own an exculpatory event for the defendant, the Court determined its materiality. The decision's opinion quoted Brady directly: "Thereafter Brady v. Maryland, 373 U.S., at 87 , held that suppression of material evidence justifies a new trial "irrespective of the good faith or bad faith of the prosecution."
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. "Prosecutors say they've made some honest mistakes, and the defense calls those mistakes misconduct." -- |  |
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Wall Street Journal Blogs, NY -
Ted Stevens. (AP Photo/Jose Luis Magana) Momentarily, US District Judge Emmet Sullivan is going to bang the gavel and resume the circus that has become the ...
For guidance, we called up Ropes & Gray attorney Michael McGovern, a former SDNY prosecutor. “Viewing it in isolation,” said McGovern (alluding to the earlier dispute over the disappearing witness), one can see why the judge might be upset. I don’t know what the basis was for redacting part of the witness’s prior statements. Usually, they are turned over lock, stock and barrel.
Makes sense to us, although earlier reports from today indicate that the prosecutor, Brenda Morris, and Judge Sullivan might differ on the issue of intent. When explaining away the government failure to hand the records over until last night, Morris reportedly blamed “human error.”
But Judge Sullivan reportedly said, “It strikes me that this was probably intentional. I find it unbelievable that this was just an error.”
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Judge Berates Prosecutors in Trial of Senator
But at the end of the day, Judge Emmet G. Sullivan of Federal District Court decided not to dismiss the charges or declare a mistrial, as had been urged by Mr. Stevens’s lawyers. The judge, though, severely admonished the department and its public integrity section, which is handling the prosecution.
“How does the court have confidence that the public integrity section has public integrity?” Judge Sullivan asked at the end of an extraordinary hearing he had called after dismissing the jurors for the day.
He ordered the government to turn over almost all its files to the defense, saying he no longer believed in the ability of prosecutors to make full disclosure on their own, as is customary.
The surprise development came after prosecutors late Wednesday night sent to the defense team a copy of an F.B.I. report of an agent’s interview with Bill Allen, an Alaska oil services executive who is the prosecution’s chief witness and has been on the stand this week. In addition to the judicial scolding of the government, the revelation produced a heated confrontation between the chief defense lawyer, Brendan Sullivan, and the chief prosecutor, Brenda Morris, outside the presence of the jury.Mr. Sullivan’s argument was that had he known of the agent’s report, it would have fundamentally altered his approach and would have figured in his opening statement. It could buttress the principal defense argument that Mr. Stevens had always fully intended to pay any bills for home renovation and thus did not conceal any gifts.
Ms. Morris, the chief prosecutor, apologized profusely in the morning for what she called “a serious mistake.” But by the afternoon hearing, she argued vigorously that the failure to disclose the document had no significant effect because the government had provided other reports saying the same thing.
Underlying the dispute is the 1963 Supreme Court ruling Brady v. Maryland, which requires prosecutors to give a defendant all information it holds that might materially help the defense.
“The government is the gatekeeper of information to the defense” was the way Judge Sullivan put it Thursday in berating Ms. Morris. “This is not a trial by any means.”
Ms. Morris said she was “trying to come before you as humbly as I can,” while insisting that “there is no harm here.”
Ms. Morris and Mr. Sullivan traded several turns at the lectern as the arguments swiftly escalated. Mr. Sullivan, who cited his years of practice nearly a dozen times, at one point seemed to question the good faith of the prosecution. Ms. Morris got up from her seat suddenly and challenged him.
It
was the prosecution’s second mistake in the trial. Judge Sulllivan had
earlier admonished the government for sending home to Alaska a witness
who might have helped the defense. The trial is to resume on Monday.
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Stevens Trial Suspended Over Possible Brady Violation
“It strikes me that this was probably intentional. I find it unbelievable that this was just an error,” [Judge Emmet] Sullivan said.
At one point, lead defense attorney Brendan Sullivan turned to Morris and fumed, “Dismiss it!”
Morris conceded Stevens' lawyers should have gotten the records sooner but declined to say who on her team made the error. She said the omission had caused no harm because Allen was still on the stand. His testimony was scheduled to resume today before Judge Sullivan postponed the trial. Stevens' lawyers have not begun their cross-examination.
Sullivan scheduled a hearing at 4:30 p.m. to determine how to proceed. The judge ordered each side to file briefs on the issue before the afternoon hearing.
No Mistrial for Senator Stevens
Posted Oct 3, 2008, 05:32 am CDT
By Edward A. Adams
A federal judge in Washington, D.C. Thursday refused to declare a mistrial in the corruption trial of Sen. Ted Stevens, R-Alaska, despite a finding that prosecutors failed to turn over potentially exculpatory information to the defense.
U.S. District Judge Emmet G. Sullivan took prosecutors to the woodshed, saying "the court has no confidence in the government's ability" to meet its obligations under Brady v. Maryland, according to the Washington Post. He ordered government lawyers to provide the defense with copies of all witness interviews.
Assistant U.S. Attorney Brenda Morris told the court yesterday that "we admit we made a gross error, your honor.… But there is no harm to the defendant."
"I want an answer," the judge told her. "How does the court have any confidence that the public integrity section has any integrity?"
http://www.abajournal.com/news/no_mistrial_for_senator_stevens/
A federal judge refused yesterday to dismiss charges against Alaska Sen. Ted Stevens (R), ruling that Stevens's corruption trial can proceed despite the prosecution's belated disclosure of information that could aid his defense.
After a surprise revelation Wednesday night that Justice Department lawyers had not disclosed the potentially exculpatory information, the ruling followed a hearing on the matter late yesterday.
"Although the court is persuaded there is a . . . violation, the court is not persuaded that dismissal of the indictment or mistrial is the appropriate remedy," said U.S. District Judge Emmet G. Sullivan. He added that the government's actions had broken his trust in the prosecutors and ordered them to give Stevens's attorneys copies of all witness interviews.
"The court has no confidence in the government's ability" to meet its obligations to ensure a fair trial, he said.
Stevens, 84, is charged with failing to disclose on Senate financial documents that an energy company executive who contributed to his campaigns also extensively renovated Stevens's Alaska home without charging him for all of the work.
The potentially exculpatory material involves remarks by the executive, Bill Allen, a key prosecution witness, to FBI agents that he believed Stevens would have paid for the renovations if Allen had billed him. Attorneys for the government did not disclose those remarks to the defense until late Wednesday.
The chief of now-defunct Veco is a longtime friend of Stevens's and had sought the senator's help with company projects. Stevens, one of the most powerful Republicans in the Senate is running for reelection to a seventh full term.
Sullivan said Allen's information is not entirely new -- prosecutors had previously summarized his views in a September letter to the defense -- and noted that the defense can stress it when Stevens's attorneys cross-examine Allen.
But [D.C. District Judge Emmet] Sullivan ruled that government prosecutors had violated a critical requirement that they turn over potentially helpful information to the defense. Prosecutors said they would report Sullivan's finding to the Justice Department's Office of Professional Responsibility, which could begin an investigation of the government legal team.
In court this morning, prosecutor Brenda Morris acknowledged that the information should have been provided earlier. "We admit we made a gross error, your honor," Morris said. ". . . But there is no harm to the defendant."
Stevens's defense attorneys repeatedly called for the court to dismiss the indictment against their client or declare a mistrial. They accused government prosecutors of behavior that constituted either a pattern of negligence or intentional sabotage of the defense.
"Our position is it's broken and can't be fixed, your honor," said defense attorney Robert Cary. "We've been in this trial for too long now on an uneven playing field."
Sullivan stressed that he remained "very disturbed" that government lawyers had blacked-out the statement from Allen when turning over evidence to the defense.
"I want an answer," the judge said to Morris. "How does the court have any confidence that the public integrity section has any integrity?"
It was the second time this week that Sullivan has criticized
prosecutors. On Monday, he said he was "flabbergasted" that the
government had allowed a potentially important witness to return to
Alaska even though he had been subpoenaed to testify. Defense attorneys
said the witness could have helped their case.
http://www.washingtonpost.com/wp-dyn/content/article/2008/10/02/AR2008100201492.html
WALL STREET JOURNAL LAW BLOG
Whatever Happened to That Key Witness in the Ted Stevens Trial?
Rocky Williams, a construction foreman who was involved in the renovations on Stevens’s home and who was supposed to be a witness for the prosecution, had, according to defense lawyers, returned to Alaska without explanation. But it seems there was an explanation, according to the government’s memorandum in opposition to the request for a mistrial. Williams, they say, was too sick to testify. From the government’s papers:
- True to form, defense counsel continues with their “win at all
cost” tactics. . .This time, defendant has gone too far, accusing the
government of Brady violations and of proffering misleading evidence at
trial. Nothing could be further from the truth . . .At the time when
Mr. Williams was subpoenaed, the government anticipated that he would
be one of the first witnesses in the government’s case-in-chief.
However, when Mr. Williams arrived in Washington, D.C. and met with
government counsel to prepare for his testimony, it was apparent to
counsel that Mr. Williams had serious, health-related issues that
warranted medical attention. . .Mr. Williams had lost a substantial
amount of weight, his abdomen was distended (and had been previously
drained of excess fluid), he appeared jaundiced, his face was gaunt, he
had substantially aged, he had chronic coughing spells, and he was
frequently short of breath. . . The government informed Mr. Williams
that he should return to Alaska to attend to his health and to meet
with his doctors.
As for the defense’s claim that Williams told them he spent much less time working on Stevens’s home than Veco’s accounting records indicate, undercutting the government’s argument that Veco spent $188,000 of its own money on Stevens’s house, the government responds: “[T]he issue is not whether the work was worth more than $188,000 or less. The key issue is whether it was worth more than the threshold amounts triggering disclosure on defendant’s financial disclosure forms.”
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above: USA redacted evidence, subject of Brady violations
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below: from defense counsel's motion to dismiss based on Brady violations
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.Rule 16, Rule 11, Brady ... in District Courts
- [PDF]
Brady v. Maryland Material in the United States District Courts ...
File Format: PDF/Adobe Acrobat - View as HTML
of evidence in federal criminal cases. The Notes of the Advisory Commit- ..... “ [i]f the United States has knowledge of Brady rule evidence and is unsure ...
www.uscourts.gov/rules/BradyFinal2007.pdf -
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BRADY__________________________
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The Brady court [Brady v. Maryland, 373 U.S. 83 (1963); 83 S. Ct. 1194; 10 L. Ed. 2d 215; 1963 U.S. LEXIS 1615] held that withholding evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but affirmed because the evidence was material to the level of punishment the defendant would be given.
Justice Douglas authored the majority opinion 45 years before the Senators Stevens trial (5 years before Stevens held Senate offices).
JENCKS__________________________
Jencks material is inculpatory evidence that is used in the course of a
federal criminal prosecution, and The Jencks Act, 18 U.S.C. § 3500, provides that the U.S. federal prosecutor be required to produce a verbatim statement or report made by a
government witness or non-defendant prospective witness only after the witness has testified. Jencks material is defined by the The Act to include other testimony-related documents and documents relied upon by
government witnesses at trial.
For example, investigative notes, memoranda, reports, summaries, letters or verbatim transcripts used by government agents to testify at trial. After prosecution witness testimony, the defendant can move to request Jencks material and the Court must grant that motion and order production of Jencks material, and if prosecutors fail to produce Jencks material acknowledged as such by the Court, often a mistrial or dismissal is granted. If defendants fail to move for Court order of Jencks material production, right to Jencks material may be lost on any later appeal.
Jencks was decided eight years before Brady.
FRCP R. 16 - Discovery and Inspection
http://www.law.cornell.edu/rules/frcrmp/Rule16.htm
FRCP R. 6 - Grand Juries (including Rule 6(e) on disclosure of Grand Jury testimony)
http://www.law.cornell.edu/rules/frcrmp/Rule6.htm
FRCP R. 11 - Pleas (including 11 (3) factual basis for plea)
http://www.law.cornell.edu/rules/frcrmp/Rule11.htm
FRCP R. 26.2 Producing A Witnesses' Statement
Rule 26.2 substantially incorporates the Jencks Act and clarifies for federal criminal and court procedural purposes any Jencks provisions not already articulated in Title 18 which describes the Jencks Act.
http://www.law.cornell.edu/rules/frcrmp/Rule26_2.htm
FRCP R. 26.3 Mistrial
http://www.law.cornell.edu/rules/frcrmp/Rule26_3.htm
FRCP R. 29 - Acquittal
http://www.law.cornell.edu/rules/frcrmp/Rule29.htm
Brady material may be contained within Jencks material. If so, then prosecutor compliance with Jencks satisfies Brady. If no, then the prosecutors must meet Brady material orders and the Court must treat those request separately.
Tape recordings of an interview between a government agent and a government witness is producible under the Jenck’s Act after the witness has testified, if the recording relates to the witness’ testimony. Because no Jencks material is be subject to subpoena, discovery or inspection until the witness has testified on direct examination in the trial of the case, defendants sometimes use Constitutional rights of Freedom of Information to obtain defense material without subpoena.
Typically, Courts hear aguments to support motions for production of Jencks and Brady material in camera and these arguments are not ofent the subject of jury hearing.
Senator Ted Stevens of Alaska who is charged with
concealing gifts and services from a once-close friend. photo: Jose Luis Magana/AP
 | US Prosecutor Brenda Morris (L) and Defense Counsel Brendan Sullivan (R) |
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. "Judge Sullivan asked whether the defense wanted a few extra days before continuing with the case, and he suggested that Stevens' lawyers could make a new opening statement to jurors. He even offered to tell the jury that the new opening was made necessarily by a government error." -- Alaska Daily News |  |
Fed. R. Evid. 404(b) and Fed. R. Evid. 404(b):
http://www.justice.gov/atr/cases/f0400/0495.htm
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NO MISTRIAL: Errors by prosecutors won't halt proceedings, judge rules
By ERIKA BOLSTAD and RICHARD MAUER
Anchorage Daily News (10/03/08 04:59:12)
WASHINGTON
-- Prosecutors seriously bungled their obligations on evidence and
witnesses but Sen. Ted Stevens' corruption trial will proceed as
planned, a federal judge ruled Thursday. The
case against the Alaska Republican had threatened to collapse earlier
in the day when his attorney demanded a mistrial or dismissal of
charges over the government's failure to turn over evidence favorable
to the senator. U.S.
District Judge Emmet Sullivan, who Thursday morning was furious with
prosecutors, said later in the day at a hearing that he was still angry
but "not persuaded" that the violations were serious enough to declare
a mistrial. The trial, which paused Thursday while the dispute over evidence was resolved, will resume Monday. Judge
Sullivan asked whether the defense wanted a few extra days before
continuing with the case, and he suggested that Stevens' lawyers could
make a new opening statement to jurors. He even offered to tell the
jury that the new opening was made necessarily by a government error. But
those ideas were rejected by Stevens' chief lawyer, Brendan Sullivan,
who argued that "the integrity of the proceeding has been breached." "Thank
you for asking, but we believe there should be a dismissal," Brendan
Sullivan said. "If not a dismissal, then a mistrial." The
chief prosecutor in the case apologized and called her team's oversight
a mistake, though she asserted that Stevens' rights weren't violated.
What was really happening, she said, was that the defense team was
looking for a weakness in the government's position and found one, said
Brenda Morris, who heads the Justice Department trying the case. "They're just trying to make a hole and seep into a crack," she said. "Don't you think they have good reason to do that?" asked the judge.
FBI FORM 302
It
was the second time in a week that Judge Sullivan has reprimanded the
prosecution team. He earlier became upset when the government sent a
key witness home to Alaska without testifying and without informing the
court or defense until the man left town. Prosecutors said the man,
Rocky Williams, a foreman on the project to expand Stevens' home in
Girdwood, was seriously ill. The
new dispute began Wednesday night when prosecutors handed over notes an
FBI agent took of an interview with the main prosecution witness, Bill
Allen, the former chief executive officer of Veco Corp. Stevens is
accused of not reporting more than $250,000 in free labor, materials
and gifts he received, most of it from Veco, from 1999 to 2006. The
agent's notes, on a document known as a Form 302, quoted Allen as
saying he thought that Stevens would have paid a bill had he sent him
one. Allen
is in the middle of his testimony, and he said Wednesday that he didn't
send Stevens a bill for tens of thousands of dollars in repairs and
remodeling even though the senator had asked for one at least twice in
2002. Allen testified that one of his good friends told him that
Stevens was just "covering his ass" in asking for the bills. "I
can't do my duty to defend my client if the government does not abide
by the instructions," Brendan Sullivan said Thursday. He said he would
have delivered a different opening statement last week had he known
what Allen had told the FBI agent. "This
can't be undone!" he thundered, speaking directly up to the judge from
a podium less than 10 feet away. Clutching his chest, he said, "My
heart's beating twice as fast as it should be for a 66-year-old man.
This can't happen in court." As he accused the prosecution of misconduct, Morris leapt to her feet and got within inches of him, her voiced raised as well. "He called me out," she told the judge as he tried to calm the situation. Walking back to the defense table, Brendan Sullivan said, "I called her up, not out." Morris
admitted that she violated the judge's orders in not turning over the
document, but not Stevens' rights. She said the defense was told that
Allen had said that very thing in a letter on Sept. 9. A copy of that letter, filed by the defense Thursday afternoon, said: "Allen
stated that he believed that defendant (Stevens) would not have paid
the actual costs incurred by VECO, even if Allen had sent the defendant
an invoice, because defendant would not have wanted to pay that high of
a bill. Allen stated that defendant probably would have paid a reduced
invoice if he had received one from Allen or VECO. Allen did not want
to give defendant a bill partly because he felt that VECO's costs were
higher than they needed to be, and partly because he simply did not
want defendant to have to pay." Morris said the letter was adequate information to the defense. "He's getting a fair trial, believe me. You're getting a great fair trial," Morris said. On Thursday morning, Judge Sullivan said he found the government's claims "unbelievable." "It strikes me this is probably intentional," he said. "This is the government's chief witness!" Before
the trial, he'd ordered prosecutors to turn over redacted versions of
302 forms. Morris said the prosecution found that particular 302 as it
was preparing for the next round of witnesses. The agent who wrote it
is scheduled to testify after Allen, and the prosecution would be
required to make the report available to the defense at that time.
'A GROSS ERROR'
In
its requirements to present material to the defense, the government
operates under several kinds of rules. In one, known as a "Brady" after
the Supreme Court decision that created it, the government is required
to turn over evidence before the trial that would be favorable to the
defendant. A different rule, known as "Jencks" from the statute that
created it, requires the prosecution to provide more detailed notes
from agents at the time they testify. In
addition, Judge Sullivan issued an order early in the case requiring
the government to provide more material to the defense than Brady
usually requires. Morris
said late Thursday that prosecutors had reported their own Brady
violation to the Justice Department's Office of Professional
Responsibility, which investigates allegations of misconduct by its
attorneys. She
said that when members of the prosecution team were preparing Jencks
material for the FBI agent, Michelle Pluta, they realized that they
should have given the document to the defense sooner under the judge's
order. "We
do realize this is a gross error," Morris said. "It wasn't done
intentionally by any stretch of the imagination. It was a human error." The
defense team on Thursday afternoon received all 100 of the 302 Forms
connected to the Stevens portion of the sweeping Alaska corruption
investigation. Most are just one page, Morris said, but some are as
long as 10 pages. It also received transcripts of all relevant grand
jury testimony.
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