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Confidential evidence need only be favorable

For a defendant to obtain disclosure of a cooperating co-defendant’s statements to a psychologist, he need only show the evidence is favorable to the defense, U.S. District Judge Lynn Adelman held on April 12. He need not show it is also material.

The government charged Elton Carter, Eric Walker and Nicholas Alston with the armed robbery of a Milwaukee post office. Walker and Alston pleaded guilty and agreed to testify against Carter.

Prior to trial, Carter moved for an in camera review of Alston’s mental health records, including the report completed by a psychologist appointed by the court after Alston’s lawyer contested his competency.

Judge Adelman reviewed the report and found it contained one statement constituting impeachment material. Although the government contested disclosure, Adelman released the statement.

Carter was acquitted, and Adelman issued a written decision on the motion for publication in the official reports.

Standard

Disclosure of exculpatory evidence generally is governed by Brady v. Maryland, 373 U.S. 83 (1973). Brady was extended to disclosure of confidential medical records that may contain exculpatory or impeachment evidence by the U.S. Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

In Ritchie, the court held that a defendant’s due process rights are violated if the government fails to disclose evidence that is favorable to the defense and material to an issue in the trial.

In U.S. v. Reyes, 270 F.3d 1158, 1167 (7th Cir. 2001), the Seventh Circuit held that evidence is “favorable” if it “is either exculpatory in nature or tends to impeach a prosecution witness.”

Evidence is “material” if there is reasonable probability that disclosure would have changed the result of the trial. U.S. v. Williams, 272 F.3d 845, 864 (7th Cir. 2001).

Appellate Review

What the court held

Case: U.S. v. Elton Carter, 03-CR-220.

Issue: For a defendant to obtain disclosure of a cooperating co-defendant’s statements to a psychologist, must he show that the evidence is both favorable and material to the defense?

Holding: No. He need only show that it is favorable; the materiality requirement is only relevant at the appellate level, in deciding whether a court’s erroneous refusal to disclose evidence was prejudicial to the defendant.

Counsel: Carol Craft, Karine Moreno-Taxman, Milwaukee for plaintiff; Mark D. Richards for defendant.

However, Adelman concluded that the standard was designed for appellate review, and was unworkable at the trial level, citing a California district court case, U.S. v. Sudikoff, 36 F.Supp.2d 1196 (C.D.Cal.1999).

Adelman reasoned, “This standard was developed in the context of appellate consideration of the effect of nondisclosure. Specifically, the materiality prong presumes that the trial has already occurred and requires the court to determine whether the result could have been different had the evidence been disclosed. But a court deciding whether material should be disclosed prior to trial does not have the luxury of the reviewing the trial record.”

Adelman quoted extensively from Sudikoff, in which that court analogized the materiality prong to the prejudice element of a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

Adelman quoted, “it is clear that Brady’s materiality standard determines prejudice from admittedly improper conduct. It should not be considered as approving all conduct that does not fail its test. Just as unreasonably deficient assistance of counsel is improper even if does not meet the prejudice prong of Strickland and result in a Sixth Amendment violation, so suppression of exculpatory evidence is improper even if it does not satisfy the materiality standard of Brady and result in a due process violation. Though an error may be harmless it is still error.

“Therefore, post-trial standards and cases applying them are not helpful for determining the government’s disclosure obligations.” Sudikoff, 36 F.Supp.2d at 1198-99.

Adelman agreed with the Sudikoff court that, “prior to trial, the standard should simply be whether the evidence is favorable to the accused, i.e. whether it relates to guilt or punishment and tends to bolster the defendant’s case or impeachment prosecution witnesses. The materiality component should be dropped (cite omitted).”

Further quoting Sudikoff, Adelman added, “In the pretrial context it would be inappropriate to suppress evidence because it seems insufficient to alter a jury’s verdict.” Id., at 1199.

Adelman concluded, “the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial. The judge cannot know what possible effect certain evidence will have on a trial not yet held. In most cases, the judge will have only a vague approximation of what the proof will be; thus, he cannot meaningfully evaluate how the addition of other evidence would alter the trial.”

Application

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Case Analysis

Applying the standard to Carter’s case, Adelman concluded that disclosure of the evidence was required. Because the statement to the psychologist was inconsistent with other statements he made both before and after the competency evaluation, it was useful to impeaching Alston’s credibility.

Adelman concluded, “Under the circumstances of the present case, the statement was particularly useful. First, the testimony of the co-defendants was a major component of the government’s case against Carter; no physical evidence nor any eye witnesses linked Carter to the crime. Therefore, impeaching the credibility of the cooperating co-defendants was crucial to Carter’s defense.”

In addition, the statement during the competency exam was Alston’s only statement denying involvement in the crime after the confession. Although earlier denials could be explained as reluctance to confess, denial of involvement after the confession inculpating the others could be seen as more significantly undermining his credibility than the earlier statements.

Balancing the need for disclosure against Alston’s privacy interests, Adelman concluded that disclosure of the statement was proper, despite its confidentiality.

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David Ziemer can be reached by email.

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