EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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. 



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You note that the Ware court didn't fully define a misleading response/disclosure. Is it possible that Judge Welch will seek to do so with his ruling? If so, would this be important precedent? And what might this mean about how controversial and, perhaps in turn, how time-consuming this process of ruling and appeals might be?

Posted by: VanishingPoint | Feb 29, 2016 8:32:20 AM

Did you not mention the page describing the report as a "subscriber activity report" being withheld because it is not relevant to your argument?

Posted by: Rebecca Watson | Feb 29, 2016 9:23:18 AM

Not germane to this post, but I was wondering two issues as regards the Adnan case:
1. Was any effort made by the defense team then or recently to contact more members of Adnan's track team as regards the afternoon timeline ? Surely, there must have been at least 20 members ? I don't recall this being discussed in any of the podcasts.
2. In a new trial, if there is one, can the defense use tapes of Jay's police interviews where you hear the tapping on the table by the interrogator(s) to get Jay back on the
timeline the prosecution wanted ? I thought this was pretty devastating to the State when I heard it demonstrated in a podcast I heard.

Posted by: Alan | Feb 29, 2016 9:48:13 AM

I’m confused by this post. Why is the defense claiming the state made a misleading disclosure of material exculpatory evidence rather than a failure to disclose? It seems odd that Justin Brown would claim Gutierrez was ineffective in failing to use the At&T cover sheet when she never had it to use. If the cover sheet was never provided to the defense, that seems an obvious failure to disclose. Is the defense unable to make this argument because the State claims that the cover sheet was actually available to Gutierrez had she sought it out? The fact that the State provided ‘cropped’ copies of the Subscriber Activity Report (by whatever name you want to call it - since it seems clear that all the relevant reports they refer to have the exact same information) seems a misleading disclosure. Why can’t the defense make both claims - a failure to disclose as well as a misleading disclosure? Also, I’m having trouble understanding the following: “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. Are you saying that since the copies the State provided were problematic, that this supports this particular Brady claim? Or are they considering exhibit 31 to have been misleading because it did not include the cover sheet? Confused. Can you spell this out a little more clearly for me?

Posted by: Jennifer | Mar 1, 2016 7:47:19 AM

VanishingPoint: This would be a great chance to flesh out the Ware test, and this would be an important opinion.

Rebecca: It is relevant. I just forgot to include it.

Alan: (1) Several were contacted by the current PI, and they indicated that they were not contacted back in 1999. (2) Yes.

Jennifer: Gutierrez did have the cover sheet. It just wasn’t included in Exhibit #31, which also didn’t have the page indicating it was a Subscriber Activity Report.

Posted by: Colin Miller | Mar 2, 2016 4:01:27 PM

Thank you Colin Miller. I honestly thought I remembered that C. Gutierrez did not have the cover sheet - but after your response, I went back through some posts here and there and clearly remembered then that it was Susan who had made the discovery of the cover sheet’s disclaimer. I know that Abe Waranowitz never got the cover sheet - somehow it all got confused in my memory - which just reinforces how untrustworthy memories can be. Heaven help the jurors who try to keep all of this straight - especially if they are unable to take notes along the way. I followed all of Serial, Undisclosed, Truth and Justice, your posts, Susan’s posts, Amelia McDonnel-Parry’s posts and though I had a handle on everything....and still I got things wrong. Thanks for your response - I love that you always respond to comments on your blog - and that you are patient with those of us who are so interested in, but have no professional association with, the workings and failings of the legal system.

Posted by: Jennifer | Mar 4, 2016 4:43:28 AM

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