Earlier this week, in People v. Garrett, New York's Court of Appeals (the highest court in the state for you non-New Yorkers), ruled that prosecutors are under no duty to disclose lawsuits for civil rights violations by investigating officers as Brady material. It's not a stunning or game changing ruling. It's more of a just another brick in the wall sort of decision.
In 1998, Mark Garrett was picked up on a parole warrant and questioned about the murder of a young woman by detectives, including Vinccent O'Leary. During the course of questioning, Garrett confessed to the killing. He was later tried and convicted, with his confession one of the cornerstones of the prosecution's case.
During the pretrial litigation, Garrett served a request for all Brady material. He then moved to suppress his confession, claiming that O'Leary and another detective had coerced his confession through intense physical and psychological abuse. During the hearing, defense counsel asked another detective if he and O'Leary were "involved the James Halverson homicide case," which "was a case involving a false confession." An objection to this liine of questioning was sustained and the suppression motion ultimately was denied. Following his conviction, Garrett was sentenced to 25 years to life.
In 2009, Garrett moved to set aside the conviction on the grounds that the prosecution had violated Brady by failing to disclose the existence of a civil lawsuit that had been brought against O'Leary in the United States District Court for the Eastern District of New York. In that case -- which was filed in 1998, more than a month prior to Garrett's arrest -- the plaintiff claimed that O'Leary had coerced him into a confession by repeatedly hitting him in the head with a telephone book while he was handcuffed and physically forcing him to sign aconfession. The civil case was eventually settled in March 2001, after Garrtt had been sentenced.
Garrett argued that he would have used the allegations in the existing lawsuit to impeach O'Leary. The prosecution denied any knowledge of the civil suit prior to 2001. The motion to vacate the conviction was denied at the trial level but reversed on appeal by the Appellate Division for the Second Department, which had determined that there was a "reasonable probability" that the details of the suit would have "changed the outcome" of the trial if disclosed.
The Court of Appeals reversed, finding that, in sum, it was neither necessary nor practicable to require prosecutors to discovery and produce all prior or existing litigation over unrelated allegations of civil rights violations. More precisely, the Court ruled that to apply Brady as Garrett suggested, would "impose an unacceptable burden upon prosecutors that is likely not outweighed by the potential benefit defendants would enjoy from the information ultimately disclosed on account of the People's efforts." The Court further disagreed with the Appellate Division, holding that there was "no reasonable probability" that disclosing the lawsuit against O'Leary would have changed the result of Garrett's trial.
The Court of Appeals' reluctance to require prosecutors to investigate the existence of any prior or existing litigation does not seem facially unreasonable. That is, until you think about it a bit. Speaking generally, a police officer's knowledge of exculpatory evidence is imputed to prosecutors for Brady purposes, regardless of whether the prosecution has actual knowledge of the evidence. Thus, if collateral litigation were deemed Brady material, then prosecutors would have constructive knowledge of these actions, and a duty to disclose. This would essentially require prosecutors to inquire of their witnesses, and perhaps check various databases.
I get that courts are loathe to do anything that expands the scope of Brady. The defense's request here would not really be an expansion as much as a wide reading of an existing right, but, that's apparently close enough from the Court of Appeals' perspective.
More importantly, as Chief Judge Jonathan Lippman argues in a concurring opinion, the Court should have found that O'Leary's knowledge of the civil suit was imputed to the prosecution.
This is a key point: the Court of Appeals essentially held, in relevant part, that the officer's knowledge of the allegations in the unrelated lawsuits, or the existence of the suit itself, is not imputed to the prosecutors. What this means is that prosecutors who don't actually know about other lawsuits are not considered to "know" whatever it is the police officers know, unless the prosecutors come to have actual knowledge. It doesn't take a rocket scientist to understand that the Court is endorsing, if not outright suggesting that ADAs and cops maintain a don't ask/don't tell policy.
There are two immediate take-aways from this decision, beyond the obvious evidence of the judiciary's continued, hurried retreat from the basic principles of fairness and due process that underlay Brady v. Maryland (which is a topic for another day).
One is that collateral litigation, no matter how strikingly similar the allegations, will likely remain just that; collateral. Two, it is imperative that criminal defense lawyers search databases like PACER for evidence of civil litigation. Allegations made to local bodies (in New York City it would be the NYPD's IAB or the Civilian Complaint Review Board) will remain hidden, unless the info is subpoenaed, but existing lawsuits can be found.
Meanwhile, the outer edges of Brady continue to roll back, one depressing case at a time.
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