Judge Easterly Lets The Facts Speak For Themselves In Damning the Government for Brady Violations

You suspect it happens all the time:  the prosecutor withholds exculpatory information from the defendant, thereby preventing the defendant from mounting an effective defense.  The problem is that, with the government in sole possession of all the information, you have no way of proving it.

And then there is Vaughn v. United States, 93 A.3d 1237 (D.C. 2014).

With an understated but hard-hitting opinion by Judge Catharine Easterly, this is undoubtedly the best Brady v. Maryland decision issued by the D.C. Court of Appeals in a long time.  Although a colleague has criticized Judge Easterly for not identifying either of the two Assistant U.S. Attorneys who were involved, “naming and shaming” was not the purpose of this opinion. (I am not so constrained. Courtview lists the two government attorneys of record as Reagan M. Taylor and Mary Chris Dobbie.  I was dismayed to hear that both Assistant U.S. Attorneys are still trying major felony cases for the government.) Nor does Judge Easterly denounce the government for doubling down on the unethical and ill-advised actions of its trial attorneys.   She simply lays out the facts in a methodical fashion, knowing that these facts speak for themselves.

Alonzo Vaughn and Carl Morton were both convicted of Aggravated Assault (D.C. Code § 22-404.01) and Assault on a Police Officer (D.C. Code § 22-405) after a jury found that they had been involved in a fight at the D.C. Jail.  None of the victims could identify either defendant.  Instead, the government’s case against both men relied on the testimony of two corrections officers who said they could identify Vaughn and Morton from a low-quality surveillance video of the incident.

What the government did not disclose was that one of the identifying witnesses – Angelo Childs – had a significant credibility issue that should have been revealed to the defense under Brady.  Specifically, the Office of Internal Affairs (OIA) for the Department of Corrections had concluded that Childs had filed a false report in connection with another assault at the jail.  Both defendants could have used this information to impeach Childs’ credibility.

The government did not turn this information over to the defendants.  Moreover, it also filed a motion in limine to preclude the defense from questioning Childs about any such misconduct.  Judge Easterly picks it up from there:

In that motion, the government provided a “summary” of the OIA Final Report that gave no indication that the OIA had investigated a potentially false allegation of an inmate assault by Officer Childs and others and determined that this allegation was false; the government also did not reveal Officer Childs’s resulting demotion.  Rather, the government’s summary focused exclusively on only a portion of the OIA Final Report that considered whether Officer Childs (1) had properly used a chemical agent on the accused inmate. . . and (2) had falsely indicated in a report that the inmate was unrestrained . . .

The difference between the government’s summary of the OIA investigation and the actual OIA Final Report almost certainly would have come to light had the government provided the trial court with the full copy.  It did not.  Along with its summary, the government submitted to the trial court ex parte what it said was the OIA Final Report, but in fact was only the first five pages of the ten-page report (and included none of the documents in the appendix, 76 pages in all).  The first five pages of the OIA Final Report contain “background” information, investigative notes, and a full reproduction of Officer Childs’s account of an inmate assault in his Incident Report without  any indication that that account was being questioned; the findings adverse to Officer Childs begin on the sixth page. 

As a result, the Court of Appeals found that that the government did not fulfill its due process disclosure obligations in this case and that its failure to provide the court and the defense with complete and accurate information thwarted the trial court’s ability to require strict compliance with Brady.  In language that is sure to find its way into many motions and appellate briefs, the court held that:

Prosecutors have a critical role in ensuring the fairness of criminal trials.  They are the representative of the sovereign, whose “interest . . . in a criminal prosecution is not that it shall win a case but that justice shall be done” . . . Prosecutors are thus obligated to play a dual role at trial; they must advocate for the government with “earnestness and vigor” . . . but they also have an obligation under Brady “to assist the defense in making its case” . . .

At least in the abstract, it is easy to articulate what constitutes “favorable” information subject to disclosure under Brady.  It is information “of a kind that would suggest to any prosecutor that the defense would want to know about it” because it helps the defense. . . The defense perspective controls . . .

. . .Brady does not authorize the government to engage in a game of hide-and-seek, or require the defense to “scavenge for hints of undisclosed Brady material” . . .

The goal of ensuring that our “adversary system of prosecution [does not] descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth” . . . is not achieved by last-minute information dumps.  Rather, where disclosure of Brady is concerned there is no time for strategic delay and “as soon as practicable” should be the approach . . . Certainly, Brady disclosures are required “well before the scheduled trial date” . . . Only in this way can we ensure “defense counsel [has] an opportunity to investigate the facts of the case and, with the help of the defendant, craft an appropriate defense”. . .

Brady does not tolerate the “government’s failure to turn over an easily turned rock” . . .

By now government prosecutors should know:  “Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction” . . .