One of the touchstones of the criminal defense practice is receiving so-called “Brady” material from the prosecutor. The term comes from the case Brady v. Maryland, 373 U.S. 83 (1963), in which the Supreme Court of the United States held that a defendant is entitled to evidence that would tend to exculpate him, because withholding such evidence is a denial of Due Process.
Thirty years after Brady, the Supreme Court of the United States issued an opinion in Kyles v. Whitley, 514 U.S. 419 (1995), which imposed a “duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437.
Last week, in the Ninth Circuit Court of Appeals, the Court issued an opinion reiterating the importance of providing the defendant with evidence which is favorable. An man in Portland, Oregon was convicted of being a felon in possession of a firearm, convicted largely on the testimony of a particular woman. What the defendant didn’t know, and what the defendant’s attorney didn’t know, is that this woman
has a lengthy history of run-ins with the Portland police that suggests that she has little regard for truth and honesty. In addition to being convicted of theft, she has been arrested multiple times for shoplifting and police records show at least one act of “theft by deception.” She has also been convicted several times for fraudulently using false registration tags on her vehicle — a violation she continued to commit after each conviction, stopping only when a frustrated police officer finally scraped the false tags off of her license plates himself.
United Statesv. Price, No. 05-30323 (9th Cir. 2009).
The reason why the defendant and his attorney did not know about the informant’s history, is because the prosecutor never disclosed the information, despite a request from the defendant’s attorney for “any evidence that any prospective Government witness has engaged in any criminal act, whether or not resulting in conviction.” Id. The Ninth Circuit allows that the prosecutor may not have known about the string of alleged criminal activity by the informant, but the Court insisted that regardless of what he personally knew, he nonetheless, under Kyles, had a duty to learn. Id.
How, then, did the defendant and his attorney find out about the informant’s history? Because immediately after testifying in the defendant’s trial, she claimed that she was threatened by the defendant’s brother, who was then prosecuted for witness intimidation. (The same AUSA prosecuted the brother.) It was during that prosecution that her records came fully to light.
