Monday, February 29, 2016
A Proposed Test for How the Court Should Assess the Misleading Disclosure Brady Claim in Adnan's Case
There are three ways that the State can commit a Brady violation:
1. The State completely fails to disclose material exculpatory evidence to the defense. See Brady v. Maryland.
2. The State makes a misleading disclosure of material exculpatory evidence. See Ware v. State, 702 A.2d 699 (Md. 1997) ("If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well.")
3. The State makes an untimely disclosure of material exculpatory evidence. See infra.
In Adnan's case, Justin Brown is claiming that the State made a misleading disclosure of the AT&T cover sheet, with that cover sheet constituting material exculpatory evidence. As the Court of Appeals of Maryland noted in Ware, misleading disclosures of material exculpatory evidence will seldom, if ever, be excusable. That said, the Ware court neither fleshed out the definition of a misleading response/disclosure nor gave any indication of when such a response/disclosure might be excusable under Brady. In this post, I will argue that Maryland courts should use the same criterion for determining category 2 (misleading disclosure) violations that they use for determining category 3 (late disclosure) violations.
In United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 532 (4th Cir.), four defendants were charged in connection with bid rigging a sewer construction project in Lancaster County, South Carolina. After they were convicted, they appealed, claiming, inter alia, that
they were denied due process of law because the government did not disclose evidence provided by the engineer who originally estimated the cost of the Lancaster County sewer project. On cross-examination, the engineer testified that he deliberately under-estimated the project's cost and expected the bids to exceed his estimate. Prior to his testimony, the defendants were unaware of the information. They argue that the testimony was exculpatory because it illustrates that their bids were not excessively high and, therefore, should have been disclosed under Brady.
In rejecting this argument, the Fourth Circuit concluded that
Even if we assume that the engineer's testimony is exculpatory, its belated disclosure does not constitute reversible error. No due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial....In this case, the exculpatory information was put before the jury during cross-examination of the very first trial witness. The information was available for use in the defendant's cross-examination of all further government witnesses as well as in the defendants' case in chief. The disclosure of this exculpatory evidence, at trial, does not rise to the level of a constitutional violation.
Given that Maryland is part of the Fourth Circuit, it's unsurprising that the Court of Special Appeals of Maryland cited to Smith Grading in its recent opinion in Paiz v. State. It's also unsurprising that (1) the State cited Smith Grading in its brief opposing Adnan's direct appeal on the Benaroya disclosure; and (2) the Court of Special Appeals cited Smith Grading in its own opinion denying Adnan relief.
In other cases, however, courts have applied the same test used in Smith Grading to grant defendants Brady relief based on late disclosures. For instance, in Hamric v. Bailey, Bonnie June Hamric, was found guilty of second degree murder for shooting Glenn E. Winters. At trial, after the start of jury deliberations, the defense learned of a report regarding the victim's clothes after a laboratory examination that contradicted the State's narrative. After Hamric was convicted, she appealed, claiming that this late disclosure constituted a Brady violation. The Fourth Circuit agreed,
conclud[ing] that disclosure of the undisclosed evidence after the jury had retired was too late to overcome the requirements of Brady. If it is incumbent on the State to disclose evidence favorable to an accused, manifestly, that disclosure to be effective must be made at a time when the disclosure would be of value to the accused. Possibly the jury's deliberations could be interrupted for the purpose of taking additional testimony, but the potential prejudicial effect to an accused of such an extraordinary procedure persuades us that Brady, to be given vitality, must be interpreted to require disclosure, at least, before the taking of the accused's evidence is complete.
These cases, then, seem to set forth a pretty clear test for determining whether a late disclosure constitutes a Brady violation. If, as in Smith Grading, the late disclosure does not prevent defense counsel from making effective use of the evidence at trial, there is no Brady violation. If, as in Hamric, the late disclosure does prevent defense counsel from making effective use of the evidence at trial, there is a Brady violation.
The thesis of this post is that this same test should apply to determine whether there was a sufficiently misleading disclosure to create a Brady violation. If a disclosure would not prevent a reasonable* attorney from making effective use of the evidence at trial, the disclosure was not misleading enough to constitute a Brady violation. If, however, a disclosure would prevent a reasonable attorney from making effective use of the evidence at trial, the disclosure was misleading enough to constitute a Brady violation.
So, what does this mean in terms of Adnan's case? When Justin Brown claimed that Cristina Gutierrez was ineffective in failing to use the AT&T cover sheet to challenge the cell tower evidence at trial, the Deputy Attorney General responded that (1) Exhibit #31 was not a Subscriber Activity Report; (2) the cover sheet did not apply to Exhibit #31; and (3) Gutierrez would have risked looking foolish and disingenuous if she had tried to use the cover sheet at trial. In other words, the Deputy Attorney General argued that a reasonable attorney would not have tried to use the cover sheet at trial based upon the State's disclosures. As such, the factual predicate for a Brady claim based upon a misleading disclosure has been established.
*You'll note that I added the word "reasonable." I did this to synch this Brady rule with the test for ineffective assistance of counsel.