Tuesday, August 22nd, 2006

Prosecutor Cannot Avoid Brady Obligation by Claiming that He Did Not Believe Witness’s Exculpatory Statement

Disimone v. Phillips, Docket No. 05-6893-pr (2d Cir. Aug. 22, 2006) (Miner, Calabresi, Restani): In this decision, the Circuit (1) reverses the district court’s grant of habeas based on insufficiency of the evidence (on the ground that Disimone failed to raise an insufficiency claim to the state appellate courts and cannot demonstrate cause and prejudice for the procedural default), but (2) remands for further fact finding on Disimone’s Brady claim (specifically, whether defense counsel knew or had reason to know of a witness’s exculpatory statement), which the district court summarily rejected in light of its grant of habeas on insufficiency. Judge Calabresi’s opinion discusses many distinct issues, but this Blog will focus on its fine discussion of the prosecutor’s failure to abide by his obligations under Brady.

The essential facts are these. The victim was stabbed to death during a late-night fight outside a Yonkers nightclub involving numerous participants. Forensic evidence showed that he was stabbed 13 times — including once through the heart and once through the lung — and that each wound contributed to his death.

No eyewitness testified. The State’s principal witness was an ex-associate of Disimone, who testified in exchange for leniency in an unrelated murder case. That witness said that he saw Disimone run from the scene of the crime with a knife in hand and that Disimone admitted stabbing the victim. The State also introduced forensic evidence showing that blood on Disimone’s clothing matched that of the victim.

Despite numerous requests, the prosecutor refused — until very late in the trial — to turn over evidence that one Nick Djonovic had told a relative that (1) he twice stabbed the victim, including once in the chest; and (2) Disimone thereafter stood over the victim and stabbed him as well. When defense counsel finally received this evidence near the close of the State’s case, he sought a continuance (which was denied) and then a mistrial (also denied). Disimone was convicted and state courts affirmed his conviction.

On federal habeas, he argued inter alia that his right to receive material exculpatory evidence was violated by the prosecutor’s failure to disclose timely Djonovic’s statement. Disimone claimed that, among other things, Djonovic’s confession could have been used to persuade the jury that whatever Disimone’s role was in the fight, he was “not responsible for causing [the victim’s] death.” Op. 25. This was supported by the fact that the medical examiner “could not tell the order of the stab wounds but said that if the stab to the heart were the first one,” it would have been sufficient to kill the victim. Id.

On these facts, the Circuit largely agreed with Disimone that the prosecutor violated his obligations under Brady, and remanded solely for further fact-finding concerning whether defense counsel somehow knew or should have known about Djonovic’s statement independently. Op. 27-28.

Importantly, the Circuit rejected the State’s claim that Djonovic’s statement was not exculpatory because it did not find him credible. The prosecutor explained to the trial judge, for instance, that he was not required to turn over the statement because “the information contained in that affidavit was thoroughly investigated by my office and negated on several counts . . . [as] basically a lie.” Op. 21. As a result, he claimed, Djonovic’s statement did not qualify as Brady material: “[T]here may be situations in which a prosecutor, in his discretion, may fairly keep to himself knowledge of available testimony [apparently exculpating the defendant], which he views as mistaken or false.” Id.

Sound familiar? We here at the FDNY have heard the same lame excuse from win-at-all-costs AUSAs. Hopefully, defense counsel will no longer have to put up with such nonsense, as the Circuit flatly rejected it: “If there were any questions about the reliability of the exculpatory information, it was the prerogative of the defendant and his counsel — and not of the prosecution — to exercise judgment in determining whether the defendant should make use of it.” Op. 23. Judge Calabresi then approvingly quotes a district court opinion stating the same: “If the evidence is favorable to the accused, then it must be disclosed, even if the prosecution believes the evidence is not thoroughly reliable.” Id. (emphasis added). “To allow otherwise,” the Circuit concludes, “would be to appoint the fox as henhouse guard.” Id.

A terrific line, and one that all defense counsel should be ready to spring on an ethically challenged prosecutor.

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