Sunday, November 7, 2010
False Accounting: Supreme Court Of Virginia Finds Brady Violation Based Upon Nondisclosed Material Impeachment Evidence
Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. And, as is clear from the recent opinion of the Supreme Court of Virginia in Bly v. Commonwealth, 2010 WL 4347936 (Va. 2010), when the prosecution fails to disclose impeachment evidence about the key witness for the prosecution, the defendant will be entitled to a new trial.
In Bly, Lindsay Bly was convicted of possession with intent to distribute an imitation controlled substance and possession with intent to distribute methamphetamine. These convictions were the result of a series of drug "buys" allegedly conducted between Bly and Robert Hoyle, a paid confidential informant.
After he was convicted, Bly filed a motion for a new trial, claiming, inter alia, that the chief investigator of the drug task force had been aware, more than four months before Bly's trial, that Hoyle had been giving the task force false accounts of his purchases of controlled substances.
Attached as an exhibit to Bly's motion was a copy of a letter from the Commonwealth's Attorney for Rockbridge County and the City of Lexington to another lawyer in a different case, written in response to a discovery motion. That letter acknowledged that Hoyle had claimed that he made drug "buys" from one Jeff Breeden on two dates, resulting in Breeden's indictment and arrest, but it was later found that Breeden had been incarcerated on both of those dates and could not have made the sales as Hoyle claimed. The Commonwealth's Attorney's letter further acknowledged that on another occasion when Hoyle reported making a drug purchase from a suspect in Buena Vista, another member of the task force reported that he thought he had seen the suspect in a different location at the same time. Consequently, the suspect was not charged. The Commonwealth's Attorney's letter stated that from January through July of 2004 Hoyle made 83 controlled "buys" for the task force, for which he was paid a total of $4,281.70, plus $1,301.40 for his court appearances. Hoyle had a criminal record and had been found with a smoking device but was not charged with possession of marijuana in exchange for his services to the task force. Hoyle was only paid if he made a "buy" and turned contraband over to the task force.
According to Bly, this evidence was material exculpatory evidence within the holding of Brady v. Maryland because there was no visual surveillance, visual or audio recording, fingerprint evidence, recovery of marked money, or other evidence to support Hoyle's account of his purchases from Bly.
The circuit court denied Bly's motion, and, while the Court of Appeals of Virginia initially reversed, upon an en banc rehearing, it affirmed the judgment of the circuit court. In reversing, the Supreme Court of Virginia cited to its prior opinion in Workman v. Commonwealth, 636 S.E.2d 368 (Va. 2006), in which it found that non-disclosed evidence is often "material" under Brady when the defendant could have used the evidence to discredit the entire police investigation. It then found that
In its analysis, the Court of Appeals incorrectly assumed that the circuit court, having been the trier of fact, would have convicted Bly based on the other evidence in the case even if Hoyle's testimony were entirely excluded. When determining whether to grant a new trial because of a Brady violation, the court must take into consideration the use the defense may properly make of the non-disclosed information. As we observed in Workman, in the Brady context such non-disclosed evidence may be, and often is, used to discredit an entire police investigation....The non-disclosed evidence "may not have been admissible for the truth of the matter asserted, but it was admissible for a different reason[:] to discredit the police investigation."...The Court of Appeals' assumption overlooks the risk that impeachment of Hoyle, in discrediting the police investigation itself, might well have tainted the remaining evidence in Bly's case.
Therefore, the Virginia Supremes concluded that
The non-disclosed evidence here, as in Workman, could clearly have led to evidence admissible at trial for impeachment purposes. It was withheld by the Commonwealth and Bly was thereby prejudiced. The result was such as to impair confidence in the outcome of the trial....For these reasons, we will reverse the judgment appealed from and remand the case to the Court of Appeals with instruction to further remand the same to the circuit court for a new trial consistent with this opinion if the Commonwealth be so advised.