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By Robert G. Morvillo and Robert J. Anello
New York Law Journal©
June 5, 2001
One of the ironies of our American litigation system is that when parties fight over money in civil cases, they enjoy full, virtually unfettered, pretrial discovery, while a criminal defendant, whose liberty is at stake, and despite the presumption of innocence, is ordinarily deprived of any meaningful pretrial particularization of the evidence that will be used against him. Even when defendants are accorded discovery rights, much of the meaningful information provided is delayed until the eve of trial.[1]
This phenomena is particularly confounding in white-collar cases, where the danger to witnesses is usually minimal and other attempts to obstruct justice are deterred by enhanced penalties or additional prosecutions.
Prosecutors reap a huge tactical advantage by restricting the flow of facts to a defendant. Moreover, a prosecutor's incentive to withhold evidence, inhibiting a defendant's ability to prepare for trial, is at its strongest when the facts are favorable to the defendant.
Thus, in the Southern and Eastern Districts of New York, the prosecution's stock response to motions for production of exculpatory material under Brady v. Maryland,[2] is that it is aware of its disclosure obligations under Brady and will comply with them. Given the lack of consensus as to exactly what information constitutes Brady material and as to when production of such material can and should be required, it is surprising how readily many district courts accept these vague assurances by the prosecution that it will, in effect, do the right thing. Indeed, some courts have ruled that Brady material is not discovery material and need not automatically be furnished before trial.[3] The underlying assumption that even if Brady material is furnished closer to trial, the defendant will have adequate time and resources to exploit it, is naive and for the most part inaccurate.
'Brady' and 'Giglio'
The Supreme Court's 1963 decision in Brady held that the prosecution violates due process when it "withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.''[4] In Giglio v. United States,[5] the Supreme Court extended the prosecution's obligations under Brady to disclosure of impeachment evidence. There, it held that, where "the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady]." In at least two subsequent decisions, the Court has reaffirmed that Brady extends with equal force to impeachment and exculpatory evidence that may have an impact on the determination of guilt or punishment.[6]
Notwithstanding the clear pronouncements that impeachment material is to be accorded the same treatment as affirmative exculpatory material, when left unmandated by an explicit local rule, many prosecutors persist in withholding impeachment evidence from the defense for as long as possible. Invariably, prosecutors argue that Giglio material is more like Jencks material (government witness statements) which do not have to be furnished to the defense until trial. For years the defense bar, somewhat unsuccessfully, has opposed this interpretation of Giglio.
The question of when Giglio impeachment material must be disclosed recently has come to a head in this Circuit, following Eastern District Judge Leo Glasser's ruling in United States v. Shvarts,[7] that the government must provide Giglio material to the defense upon demand. While the local rules in a number of federal districts require production of impeachment material soon after indictment,[8] the local rules in the Southern and Eastern Districts of New York are silent as to when such material must be handed over to the defense. As discussed in greater detail below, prior to Judge Glasser's ruling in Shvarts, Southern and Eastern District courts routinely had permitted the prosecution to delay production of impeachment material until shortly before or even during trial. Following Shvarts, at least one other Eastern District judge and one judge from the Southern District have ordered production of Giglio material on a more accelerated schedule than that proposed by the prosecution.[9] Concerned about the ramifications of these rulings, the United States Attorney's Office for the Eastern District has petitioned the Second Circuit for a writ of mandamus seeking a reversal of the most recent order for the immediate production for Giglio material entered by Judge Glasser in United States v. Coppa.[10] A decision on that petition is pending.
The Jencks Act
The prosecution's position on Giglio material, primarily tactical, is better understood in the context of the Jencks Act. This Act was passed in 1957 in response to the controversy following the Supreme Court's holding in Jencks v. United States,[11] that a defendant was entitled to access to the statements of government witnesses without a showing of likely inconsistency between their prior statements and their trial testimony. At a time when relatively few white-collar cases existed, through the Jencks Act, Congress sought to allay concerns over witness safety and witness tampering by delaying disclosure of prior witness statements until after their direct trial testimony.
Recognizing that such belated disclosure may not permit the defendant to take adequate advantage of impeachment opportunities presented by a witness's prior statement, the Jencks Act permits the court to recess a trial where necessary so that the defendant may examine the statement and prepare for its effective use at trial. As a practical matter, in order to avoid mid-trial delays, prosecutors in this circuit, under the prodding of the district courts, generally provide Jencks Act material shortly before a witness testifies.
Although the overlap between Giglio and Jencks material is not complete, many courts, including the majority of those in Southern and Eastern Districts, have accepted the government's treatment of all Giglio material as akin to Jencks Act material, and have permitted the prosecution to delay its production until shortly before the witness testifies.[12] These decisions start with the understanding that due process requires that the defendant be provided Brady material with sufficient time to make effective use of it at trial. They further reason that the determination of how much time the defense needs to make effective use of favorable evidence depends upon the nature of the evidence in question, and that impeachment evidence can be used effectively with far less lead time than direct exculpatory evidence.
The 'Velasquez' Case
For example, in United States v. Velasquez,[13] Southern District Judge John F. Keenan noted that while exculpatory information often becomes part of a defendant's direct case and may require additional time to develop, "impeachment material has a more narrow, specific use - to attack the credibility of a witness on cross-examination [which requires] no extended pre-trial investigation and preparation.''[14] These cases generally conclude that Giglio material may be used effectively with little or no lead time. Because the courts generally are not familiar with the contents or extent of the material, they are unable to make a fact specific analysis that, at least in theory, recognizes the possibility that disclosure during, or on the eve of trial may be too late for some defendants to make effective use of the information.[15] Most judges have concluded summarily that Giglio material need not be disclosed before trial.[16]
As noted above, Judge Leo Glasser has taken a different approach to this issue. In two cases, Judge Glasser has found that due process requires the immediate production of impeachment material as a general rule, absent a showing by the government that such disclosure posed a serious threat to the life or safety of a prospective witness. Focusing on the language in Brady that ties the government's disclosure obligation to the "demand of an accused," Judge Glasser concluded that the due process obligation arose upon demand and rejected the government's proposal to give material impeachment evidence "sufficiently in advance of a witness's testimony so as to be of use to the defendant.''[17]
Since Judge Glasser's decision in Shvarts, two other courts have agreed that Giglio material should be provided earlier than Jencks material. Most recently, in United States v. Salvatore Avellino,[18] Eastern District Judge Dennis R. Hurley endorsed the concept of different production schedules for impeachment and direct exculpatory evidence, but found, in that case, that no basis existed for delaying production of Giglio material with respect to cooperating witnesses who had testified in prior proceedings. Similarly, in United States v. Lino,[19] Southern District Judge William H. Pauley, after recognizing that certain categories of impeachment evidence may be less probative or take less time to develop than others, ordered immediate production of statements of any witnesses the government anticipated calling in its case-in-chief. Quoting Grant v. Alldredge,[20] Judge Pauley reasoned that the "heart of the Brady obligation rests on timely disclosure to allow sufficient time for 'full exploration and exploitation by the defense.'"[21] It is this more generous view of the defense's need for impeachment material that distinguishes Judge Pauley's approach in Lino from that followed by the majority of other district courts declining to order pretrial production of Giglio material. If all that is required to satisfy due process is that the defendant be able to make some use of the impeachment material, that standard could be satisfied with little if any advanced review. But, if "full exploration and exploitation" is the operative standard, a defendant has a stronger argument for early production of impeachment material.
Although both Judge Pauley and Judge Hurley cited Judge Glasser's opinion in Shvarts with approval, they adopted a more restrictive position than did Judge Glasser. All three judges found that where Giglio material falls within the scope of the Jencks Act, the constitutional requirements of Brady trump the statutory dictates of Jencks. But Judges Pauley and Hurley merely found that in the appropriate circumstances, pretrial disclosure of Giglio material could be required.
The Opposite Position
In seeking a writ of mandamus overturning Judge Glasser's order in Coppa, the government has staked out the opposite extreme. It argues that Brady is a disclosure rather than a discovery rule and was not intended to "assist defendants in planning their trial strategy or assessing their litigation risks." The government not only relies on the line of cases observing that impeachment material may be used effectively without pretrial disclosure,[22] it also argues that the Jencks Act provides the exclusive vehicle for discovery of witness statements and assails Judge Glasser's orders for pretrial production of Giglio material as an evisceration of that statute.[23] While some courts in other jurisdictions have found that Jencks controls in instances where there is an overlap with Brady,[24] most courts finding a direct conflict have concluded that the constitutional dictates of Brady trump the statutory requirements of the Jencks Act.[25]
Although the Second Circuit previously has not addressed this specific question, it will not be writing on a completely blank slate. In a different context, relating to the need to produce material concerning favorable treatment of a witness' relative, the Court of Appeals has observed that "[i]t is well established that upon request by a defendant, the Government has a duty to turn over all material exculpatory evidence in its possession, including material impeachment evidence.''[26] More significantly, the court in United States v. Carmine Avellino[27] unequivocally held that the "government's obligation to make [Brady] disclosures is pertinent not only to an accused's preparation for trial, but also to his determination of whether or not to plead guilty.''[28] In his decision in United States v. Salvatore Avellino, Judge Hurley relied, in part, on this "dual relevance" of impeachment material in rejecting the argument that Jencks controls the timing for release of Giglio material. Otherwise, he reasoned, impeachment material "could be withheld during plea negotiations with impunity, a result at odds with [United States v. Carmine] Avellino.''[29]
In most cases the government controls the facts. During its investigation, using subpoena power, the grand jury, search warrants, wire taps, its unlimited economic resources and its power to bargain by offering immunity and lesser charges, it painstakingly assembles evidence sometimes over many years. Throughout this period, the putative defendant has none of these fact gathering tools and therefore generally is deprived of the ability to obtain important information. Once the indictment, the timing of which is controlled exclusively by the government, is filed the defendant is faced with time pressures and still very little legal process to obtain facts. The prosecution is now ready and the defendant is in reality just beginning. The defendant therefore must rely on the prosecution to furnish information in a timely fashion. However, most prosecutors understand that they enjoy great tactical advantage by keeping the defense in the dark for as long as possible. Most prosecutors also understand the exceedingly heavy burden on the defendant to establish prejudice from any government failures to comply with Brady and/or Giglio obligations.[30]
Conclusion
Hopefully, the Court of Appeals will consider this imbalance in access to the facts in determining the appropriate time to apprise defendants of vitally important favorable information. In the face of the Sentencing Guidelines, withheld Giglio material may induce guilty pleas from defendants who, armed with it, would seek trial.[31]
Robert G. Morvillo and Robert J. Anello are partners at Morvillo,
Abramowitz, Grand, Iason & Silberberg PC in Manhattan.
Judith L. Mogul, an attorney, assisted in the preparation of
this article.
FootNotes:
[1] 18 U.S.C. §3500.
[2] 373 U.S. 83 (1963).
[3] See, e.g., United States v. Walton, 217 F.3d 443, 450 (7th Cir. 2000); United States ex rel Lucas v. Regan, 503 F.2d 1, 3 n.1.
[4] 373 U.S. at 87.
[5] 405 U.S. 150 (1972).
[6] See United States v. Bagley, 473 U.S. 667 (1985)("impeachment evidence, as well as exculpatory evidence falls within the Brady rule;" Kyles v. Whitley, 514 U.S. 419 (1995) ("the Court [has] disavowed any difference between exculpatory and impeachment evidence for Brady purposes.").
[7] 90 F. Supp. 2d 219 (E.D.N.Y. 2000).
[8] See, e.g., United States District Court for the District of Connecticut, Local Rules of Criminal Procedure, Standing Order on Discovery (A)(10), requiring the government to produce Giglio information within 10 days of arraignment; United States District Court for the District of Alabama, Local Rule 16.13, requiring disclosure of Brady and Giglio material" at arraignment, or on a date otherwise set by the Court for good cause shown.''
[9] United States v. Avellino, 129 F. Supp 2d 214 (E.D.N.Y. 2001)(Hurley, J.); United States v. Lino, 00 CR. 632, 2001 WL 8356 (S.D.N.Y. Dec 29, 2000)(Pauley, J.).
[10] No. 01-3031,Petition for Writ of Mandamus, filed April 30, 2001, with respect to order entered by Eastern District Judge Glasser on February 2, 2001 in CR-00-196 (E.D.N.Y.).
[11] 353 U.S. 657 (1957).
[12] See, e.g., United States v. Coriaty, 99 Cr. 1251, 2000 WL 1099920 (S.D.N.Y. Aug. 7, 2000)("The standard practice in the Second Circuit is that information bearing on a witness' credibility be disclosed at the same time as other 18 U.S.C. § 3500 [Jencks Act] material."); United States v. Jacques Dessange, 99 CR. 1182, 2000 WL 280050 (S.D.N.Y. Mar. 14, 2000)(Cote, J.)( citing with approval customary practice of producing Giglio and Jencks Act material together, reasoning that production of Giglio material "on demand" was tantamount to requiring the government to provide a witness list to the defense).
[13] No. S9 96 CR. 126, 1997 WL 414132 (S.D.N.Y. Jul 23, 2997).
[14] See also United States v. Griffith, 99 Cr. 786, 2000 WL 1253265 (S.D.N.Y. Sept. 5, 2000), quoting United States v. Frank, 11 F. Supp. 2d 322 (S.D.N.Y. 1998)("the very nature of Giglio material dictates a different timetable for its effective use.")
[15] See e.g. Griffith, supra, citing, James v. Kelly, 648 F. Supp. 397 (E.D.N.Y. 1986)..
[16] See, e.g., United States v. Rueb, No. 00 CR. 91, 2001 WL 96177 (S.D.N.Y. Feb. 5, 2001)(Sweet, J.); United States v. Trippe, No. 00 Cr. 585, 2001, WL 434849 (S.D.N.Y. Apr. 27, 2001 (Kram, J.).
[17] 90 F. Supp.2d. At 224.
[18] 129 F. Supp. 2d 214 (E.D.N.Y. 2001).
[19] 00 CR. 632, 2001 WL 8356 (S.D.N.Y. Dec 29, 2000).
[20] 498 F.2d 376, 382 (2d Cir. 1974).
[21] 2001 WL 8356 at *14.
[22] Petition for Mandamus, 01-3031, at 14-15.
[23] Id. at 19-22.
[24] See, e.g., United States v. Presser, 844 F.2d 1275 (6th Cir. 1988).
[25] See, e.g., United States v. Coppa, CR-00-196 (E.D.N.Y,) (Glasser, J.); United States v. Shvarts, 90 F. Supp.2d 219, (E.D.N.Y. 2000)(Glasser, J.); United States v. Lino, 00 CR 632, 2001 WL 8356 (S.D.N.Y. Dec. 29, 2001)(Pauley, J.) See also United States v. Trie, 21 F. Supp. 2d 7 (D.D.C. 1998); United States v. Beckford, 962 F. Supp. 780 (E.D. Va 1997); United States v. McVeigh, 923 F. Supp. 1310 (D. Colo. 1996).
[26] United States v. Leung, 40 F.3d 577, 582 (2d Cir. 1994).
[27] 136 F.3d 249, 255 (2d Cir. 1998).
[28] Id. at 255. Recently, the Ninth Circuit in United States v. Ruiz, 241 F.3d 1157 (9th Cir. 2001) held that the federal prosecutor's practice of requiring defendants to waive their right to impeachment material as a condition of obtaining the benefits of a "fast-track" plea agreement was unconstitutional inasmuch as such plea agreements could not be knowing and voluntary.
[29] United States v. Avellino, supra n.28.
[30] United States v. Agurs, 427 U.S. 97 (1976).
[31] United States v. Ruiz, supra.
Date Received: June 01, 2001