It has been said that the defense attorney is frequently the most ignorant person in the room. The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene. The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses. The defendant knows what happened because s/he was presumably present when the relevant events transpired. Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority. Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government. Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction. The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment. In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.
The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”). The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals. Their direct appeals were rejected. In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.
Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material. As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding. Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome. To reach these conclusions, the missing evidence must be evaluated in the context of the entire record.
In affirming the lower court’s rejection of petitioners’ claims, the Supreme Court observed that the evidence at issue was was either too little, too weak, or too distant from the main evidentiary points to satisfy the foregoing standards. In this regard, it was noteworthy that almost every witness to the underlying events agreed that Fuller was murdered by a large group of individuals, and the withheld items of evidence would not have led to a different result. Thus, although the first prong of the Brady test (that the withheld material was favorable to the defense) was satisfied, the second prong (that the evidence was material), was not.
The defendants also alleged that there was undisclosed impeachment evidence. As to this material, the Court observed that it was cumulative of other impeachment evidence that petitioners had and used at trial, and therefore could not serve as a basis to undermine confidence in the verdict.
While Turner reminds us that there are limits on the ability to assert viable Brady claims, defense counsel should remember that there frequently are other ways to challenge the nature and extent of a prosecutor’s discovery production. This is particularly true in jurisdictions such as New Jersey, that have relatively liberal discovery rules.
James S. Friedman is a criminal defense attorney who represents individuals charged with criminal offenses in the Superior Court of New Jersey, the United States District Courts in New Jersey and New York City, and all New Jersey municipal courts.