When I first passed the bar exam, I asked a legend of the Alameda County bench, Judge Stanley Golde (A.K.A. “The Maven”), to give me some advice on my future as a defense attorney.  Over several hours, he regaled me with war stories of how Al Davis asked him to keep Raider wide receiver, Warren Wells, “in the game” after Warren was charged with rape.  (The charges were reduced to aggravated assault.)  He smiled slyly when he spoke about Raider defensive end, John Matuszak, staying out all night and playing a game without any sleep.  “He got pulled over lots of times,” Stanley told me, “but I took care of it.”  He told me how he would spend an afternoon a week at the Bok Sen restaurant eating, drinking, and dealing dozens of criminal cases with Deputy District Attorney Gary Cummings.  But his most important insight into the Oakland culture came as I was walking to the chamber’s door. “Dan,” he said, “don’t ever lie to the DA unless it’s the last case you do in this county.”  That statement was both the heart of Alameda County’s unwritten “Jensen-Hooley” rule of ethics as well as the essence of how Brady v. Maryland used to be enforced.  It was a “fairness” concept.  You fought hard in the courtroom, but you didn’t cheat. Grace Slick once sang that, “a fair trial is no trial at all,” but if you go to trial, the prosecution has an obligation to pursue genuine justice and avoid wrongful convictions.

Brady was decided by the U.S. Supreme Court in 1958.   John Brady and Donald Boblit murdered an acquaintance.  Brady’s defense was that Boblit was the actual killer and the plan was only to steal a car and use it in a bank robbery.  Boblit confessed to this fact but the prosecution never disclosed this fact to Brady’s attorney.  In separate trials, both men were convicted and both were given the death penalty.  The Maryland Supreme Court reversed the death sentence and remanded for a new sentencing hearing.  It upheld the conviction itself as the confession of Boblit would not exonerate Brady in terms of guilt or innocence.   In a 7-2 decision, Justice William O. Douglas wrote the majority opinion affirming the state court’s partial reversal.  You can listen to the oral arguments on Brady here:

The problem with Brady is that the requirement applies not to exculpatory evidence, but only to exculpatory evidence that is material.  The court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland (1963) 373 U.S. 83, 87.

Brady was a post-conviction case.  Pretrial, the prosecution decides what is or is not “material” and if withheld evidence is later discovered, the prosecution determination is reviewed on appeal or habeas.  Nothing in Brady established a formal, pretrial disclosure process.

California has remedied aspects of this problem by enacting Penal Code section 1054.1(e), which requires the production of all exculpatory evidence without regard to materiality.  The distinction is quite important in the context of a pretrial remedy for delayed discovery.  

In People v. Gutierrez, a Contra Costa County Superior Court judge made a tough call when he dismissed charges against accused child predator Baldomero Gutierrez.  Gutierrez had been held to answer for committing lewd acts with his two foster daughters.  In a post preliminary hearing, the defense attorney found evidence showing that one of the girls had made unfounded accusations of molestations against her mother’s boyfriend in 1996 and 1999.  If this evidence were merely Penal Code §1054.1(e) evidence, it might be a “no harm, no foul situation.”  However, the judge in Gutierrez found the evidence “material,” hence elevating the violation from a statutory violation to a Brady-based constitutional violation.  This warranted dismissal.  The First District upheld the trial court judge’s ruling stating that the, “denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.”  (Citation omitted.) People v. Gutierrez (2013) 214 Cal.App.4th 343, 348-349. 

Brady can create conflicts between investigative agencies and prosecutors.  For example, in Kyles v. Whitley (1995) 514 U.S. 419  the prosecutor was imputed with the knowledge of exculpatory evidence in the hands of the investigating agencies.  The ruling in U.S. v. Aviles (1999) 170 F.3d 863 contained dicta indicating that a prosecutor might have an obligation to investigate whether an agency was withholding evidence. In practical terms, prosecutors rarely have the time or information to make such an inquiry.  If there is wrongdoing by the investigative agency, the prosecutor is often the victim. 

Recently, the Pittsburg, California police department was accused of covering up a criminal and internal affairs investigation of two police officers.  In exchange for the officers’  voluntary retirement, the criminal investigation vanished, and the Internal Affairs investigation was shelved just before a report with findings adverse to the officers was to be written.  While the Internal Affairs investigation is protected by the Pitchess discovery process, criminal investigations are not protected, and the information should have been disclosed in the ordinary course of discovery. Instead, the criminal file evaporated, and the Internal Affairs file was allegedly hidden in the police chief’s desk.  A lieutenant of the police department made this information public and even though the prosecutors learned about these files from the lieutenant’s disclosures, the Contra Costa County Public Defender’s Office had 15 criminal convictions set aside due to the Brady violations by the Pittsburg Police Department.    

While the holding in Brady and §1054.1(e) seem obvious at first glance, there are endless disputes about how to apply them.  Are revisions of an expert witness’ report exculpatory since differences between them may be impeaching?  Are juvenile convictions of a witness (which are usually sealed by the Juvenile Court) discoverable if the prosecutor happens to know what is in the sealed  juvenile file?  What about work product and attorney-client privilege?  If an alleged victim is represented by an attorney are the communications between that attorney and the prosecutor at all protected?  Some prosecutors believe “yes,” as they feel they represent the victim (although technically they represent the State and not the victim).  Roland v. Superior Court (2004) 124 Cal.App.4th 154 requires the disclosure of witness interviews, even if they are not documented in a formal report.  Should the prosecutor and his/her investigators be required to produce all e-mails, summaries of all phone calls, and trial preparation meetings with an alleged victim?

I ensure Brady compliance by serving subpoena duces tecum to witnesses seeking a broad range of materials.  I ask for e-mails and texts exchanged with prosecutors and their investigators, calendar records, or other documentation of meetings with prosecutors and victim-witness communications.  With expert witnesses, I prepare a subpoena asking for drafts of reports, billing records, advertisements for the witness’ services, board complaints, and e-mails/texts with the prosecution.  In this way, I force the prosecution to consider a broad universe of potential evidence, and I bypass the prosecutor and invoke the review and discretion of the Court.

The key to Brady is to enforce it pretrial because post trial review is usually futile.  Brady and 1054.1(e) should be a major focus of any complex case.