Sent: Friday, October 12, 2001 7:54 AM
Subject: NYLawJ: 2d Cir. Restricts Prosecutors' "Brady" Burden
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2nd Circuit Restricts Prosecutors' "Brady" Burden

 Mark Hamblett
 New York Law Journal
 October 12, 2001

 Prosecutors do not have to turn over  exculpatory and impeachment materials to the  defense on demand, the 2nd U.S. Circuit Court  of Appeals has ruled.

 In a decision keenly awaited by prosecutors and  the defense bar, the 2nd Circuit said U.S.  Supreme Court precedent requires only that such  materials be  provided to the defense in time  for their use at trial.

 In United States v. Coppa, 01-3031, the court  overruled Eastern District of New York Senior  Judge I. Leo Glasser, who had found that the  U.S. Supreme Court in Brady v. Maryland, 373  U.S. 83 (1963), and its progeny require the  government to disclose materials immediately,  even if the defense requests them far in  advance of trial.

 The decision came on a petition for writ of  mandamus sought by prosecutors in Coppa, which  involved stock fraud and money laundering  allegations. Long before a trial date had been  set, Glasser ruled that the Brady Court's  admonition that a defendant's constitutional  rights are violated where the prosecution fails  to produce exculpatory evidence "on demand of  the accused" should be taken literally.

 Glasser's decision came on the heels of his  similar ruling in the case of United States v.  Shvarts, 90 F.Supp. 2d 219 (E.D.N.Y. 2000).  There the prosecution had agreed to turn over  all materials under Brady, but had refused to  provide any impeachment materials relating to  potential government witnesses, as required by  Giglio v. United States, 405 U.S. 150 (1972).  The prosecution argued Giglio required only  that the impeachment materials be disclosed in  time for trial.

 Although prosecutors did not challenge the  Shvarts ruling, they used the Coppa case to  challenge his interpretation of both Brady and  Giglio.

 Oral arguments on the petition were heard by  the 2nd Circuit in May. The New York Council of  Defense Lawyers and two other defense bar  organizations filed amicus curiae arguing that  the unwillingness of prosecutors to hand over  exculpatory and impeachment materials on demand  put defendants at a disadvantage.

 Second Circuit Judge Jose A. Cabranes said the  court is normally reluctant to entertain what  it called the "extraordinary remedy" of a  petition for a writ of mandamus. But the court  would entertain such a petition, he said, to  "cure a defective pretrial discovery order" if  there is a novel or significant question of law  at stake, a lack of adequate alternative  remedies and the court is presented with a  legal issue "whose resolution will aid in the  administration of justice."

 Cabranes said there was a "significant  divergence of views among district judges of  this Circuit concerning the correctness of the  District Court's ruling," and resolving it  would aid the administration of justice.

 And prosecutors, he said, had "no other means"  of protecting their interests other than by the  filing of the petition.

 Without mandamus, he said, "the Government  would either have to comply with the District  Court's scheduling order, or risk contempt for  failure to comply, exclusion of its witnesses,  or dismissal of the indictment."

 Moreover, he said, compliance with the order  would require the prosecution to "identify many  of its potential witnesses to the defense far  in advance of trial, which would run afoul of  the Jencks Act and Federal Rule of Criminal  Procedure 26.2. Both the Jencks Act, 18 U.S.C.  §3500, and Rule 26.2 say that no statement of a  government witness or a prospective government  witness is subject to discovery until that  witness has testified on direct examination.

 TIMING OF 'BRADY'

 Having decided to take the petition, the court  said the district court "erred with respect to  both the scope and the timing of the disclosure  required by the Constitution" as interpreted in  Brady.

 In the evolving case law following Brady,  Judge Cabranes said, the nature of the  prosecutor's duty to disclose has shifted from  "an evidentiary test of materiality that can be  applied rather easily to any item of evidence"  to a results-based test "that obliges a  prosecutor to make a prediction as to whether a  reasonable probability will exist that the  outcome would have been different if the  disclosure had been made."

 In this case, Cabranes said, the parties agreed  that Judge Glasser used the terms "Brady  material" and "Giglio material" to mean all  exculpatory and impeachment evidence, and that  Glasser had ordered disclosure of all  impeachment evidence in the government's  possession without regard to its materiality.

 "Neither the Supreme Court nor any Court of  Appeals has given the words in Brady, 'on  demand of the accused,' the temporal  significance attributed to these words by the  District Court," Judge Cabranes said.

 In fact, he said, the high court's use of that  phrase appears to signify "the importance that  the Supreme Court placed in the 1960s and 1970s  on whether a defendant had actually requested  exculpatory material."

 "In nearly four decades of jurisprudence, the  Supreme Court has never suggested that the  reference reflected a constitutional duty to  disclose Brady and Giglio material as soon  after indictment as such materials are  requested," he said.

 Senior Judge Jon O. Newman, and Judge Stefan R.  Underhill of the U.S. District Court for the  District of Connecticut, sitting by  designation, joined in the opinion.

 Eastern District U.S. Attorney Eric Corngold  represented the government. Jay Goldberg,  Andrew Weinstein, Jeffrey Lictman, Joseph Bondy  and Larry Bronson represented defendant Frank  Coppa. John H. Doyle III and Victor J. Rocco of  the New York Council of Defense Lawyers weighed  in as amicus curiae.