Once upon a time, in 1963, there was a case, Brady v. Maryland, 373 U.S. 83, in which the prosecution was required to disclose, in criminal cases (like mine?) every bit of information that was:
1) material,
2) relevant to guilt or punishment,
3) favorable to the accused,
4) within the actual or constructive knowledge or possession of anyone acting on behalf of the state.
Prior to this case it had been the habit of prosecutors, when required to produce all evidence during discovery in a case, to hide bits and pieces that might suggest, or even prove, the defendant's innocence. A court order to reveal everything had made no difference. Prosecutors were playing a game of win or lose, and they weren't showing their cards when it looked as though they might lose. So much for seeking truth. So much for the government endeavoring to protect its citizenry.
The Brady case was important because, along with Kyles v. Whitley, 514, U.S. 419 in 1995 and Strickler v. Greene, 527, U.S. 263 in 1999, it set a precedent for requiring the prosecution to hand over all information, including discovery that might help the defendant and harm the prosecutor's case, to the defendant's counsel prior to trial.
There arose in my mind the following questions, as I researched this precedent:
Why would the government, which is, after all, comprised of the voting citizens of this country, wish to act against its own membership? Isn't that a little like cutting off the hand that feeds you?
And:
Why would the prosecutors for the government, whose paid job it is to find the truth, wish to conceal and even distort information vital to getting at the truth in a case? Isn't that like turning in your own children, who may have done nothing wrong, by hiding information that might prove their innocence?
The only real answer is that it is in the government's interest to attack its constituents, as though they were the enemy, rather than to defend and protect them when they need it most.
How have we managed, in this country, to foster a judiciary whose prosecutorial agents have an avid interest--using immoral means, such as hiding evidence, making up lies, coaching witnesses, and conducting secret, one-sided trials--in destroying people who are innocent, people who go to work every day to pay taxes that end up, in part, as those very agents' paychecks?
When is the government required, thanks to Brady, to turn over all its evidence in a case?
Certainly, it must do so once a conviction is made, or when a defendant is going to trial--but what about when a case has been under investigation for two and a half years, like mine, and the evidence is local and easily obtainable (meaning, it shouldn't have taken two and a half years), or has been confiscated in an all-out raid?
At what point can I file a Brady motion?
I asked my lawyers.
They thought about it, and said that maybe, if I have reason to believe that false information was given to the prosecutors, I could file a motion, a la Brady, asking a judge to force the government to open the affidavits in my case, because I believe the reasons given for carrying out the raid on my clinic were faulty.
In addition, and more specifically related to Brady, I would ask for any evidence obtained by the prosecutors post-raid that might, in fact, point to my innocence. This is evidence that, prior to Brady, was kept hidden in many criminal cases, perhaps because it might have made the government prosecutors look incompetent.
There is one type of material that government prosecutors have tried to keep hidden, in the past, pre-Brady, and that's evidence that might be used to impeach a state witness, or otherwise cast doubt on a prosecution case. Impeachment evidence must be turned over even if it has nothing to do with the defendant's guilt or innocence.
This is called "exculpatory evidence," and there are five types of such evidence:
1. Evidence that the criminal act never occurred;
2. Evidence that the criminal act occurred, but the defendant didn't do it;
3. Evidence that the criminal act occurred and the defendant did it, but it wasn't legally a crime;
4. Evidence that the criminal act occurred, the defendant did it, but it wasn't the crime being apprehended.
5. Evidence the criminal act occurred, the defendant committed it, but wasn't legally responsible.
Not only are all the above considered examples of Brady material, but so is any material that is not consistent with the prosecutor's theory of the case.
Moreover, in 1995 Kyles v. Whitley established that evidence must also be disclosed by the prosecution even if it attacks the reliability, thoroughness, and good faith of the police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against prosecutorial attacks.
This means that if I were able to file a Brady motion I could force the prosecutors to divulge information that might show they didn't have enough evidence to justify a raid on my office, information that might even prove my innocence, or impeach (i.e., ruin, or making a laughingstock of) their (so-called) case against me.
"Let's do it!" I said. "Let's file a Brady motion!"
"Whoa!" my lawyers said.
"They don't have anything on me, so let's force them to show their cards. They're bluffing!"
"Yes, but you haven't been indicted."
"So?"
"The Brady case established the requirement for a prosecution to show all evidence after an arrest, and sometimes after sentencing. You haven't even been indicted."
"You act as though I should hope for an indictment, so I can force the evidence to come out."
"Not at all. You don't want to be indicted, rest assured of that."
"Can I force the prosecutors to show cause via Brady prior to an indictment?"
"That's debatable."
"I may not have been indicted, but I've been punished, and my professional life is a mess."
"You're still practicing medicine, aren't you?"
"Yes," I said.
"And you have enough patients?"
"We're busier than ever."
"So, what's the problem?"
"I can't hire another doctor. No one will come near me. Would you want to work for someone who is 'under investigation by the federal government,' or 'might be convicted of fraud'? Nobody wants to get entangled with someone like that. And my office set-up assumes multiple providers, including two more doctors. I can't do it alone--which is why I'm closing."
"That makes sense," they said, shaking their heads, "but it's a real shame."
"So, what about a Brady motion?"
They spoke among themselves about other cases, and said a Brady motion might irritate the prosecutors, who could puff up their porcupine skin costumes and stick me in other ways.
"It's probably best to lay low," they concurred. "You always take a risk when you go after the government."
"I'm disappointed," I said.
"That's our best advice," they answered. "Sorry."
"What do you think should happen from hereon in?"
"Let's let the prosecutors save face by allowing the statutes to run out."
"Right," I said. "That's boring."
"Boring is good," they told me. "Leave it alone."
I shook their hands, thanked them, and walked out to my car.
The meter had run out while I was in the lawyers' den.
I scanned the street--no police and, thank goodness, no parking ticket.
I felt lucky, somehow.
1) material,
2) relevant to guilt or punishment,
3) favorable to the accused,
4) within the actual or constructive knowledge or possession of anyone acting on behalf of the state.
Prior to this case it had been the habit of prosecutors, when required to produce all evidence during discovery in a case, to hide bits and pieces that might suggest, or even prove, the defendant's innocence. A court order to reveal everything had made no difference. Prosecutors were playing a game of win or lose, and they weren't showing their cards when it looked as though they might lose. So much for seeking truth. So much for the government endeavoring to protect its citizenry.
The Brady case was important because, along with Kyles v. Whitley, 514, U.S. 419 in 1995 and Strickler v. Greene, 527, U.S. 263 in 1999, it set a precedent for requiring the prosecution to hand over all information, including discovery that might help the defendant and harm the prosecutor's case, to the defendant's counsel prior to trial.
There arose in my mind the following questions, as I researched this precedent:
Why would the government, which is, after all, comprised of the voting citizens of this country, wish to act against its own membership? Isn't that a little like cutting off the hand that feeds you?
And:
Why would the prosecutors for the government, whose paid job it is to find the truth, wish to conceal and even distort information vital to getting at the truth in a case? Isn't that like turning in your own children, who may have done nothing wrong, by hiding information that might prove their innocence?
The only real answer is that it is in the government's interest to attack its constituents, as though they were the enemy, rather than to defend and protect them when they need it most.
How have we managed, in this country, to foster a judiciary whose prosecutorial agents have an avid interest--using immoral means, such as hiding evidence, making up lies, coaching witnesses, and conducting secret, one-sided trials--in destroying people who are innocent, people who go to work every day to pay taxes that end up, in part, as those very agents' paychecks?
When is the government required, thanks to Brady, to turn over all its evidence in a case?
Certainly, it must do so once a conviction is made, or when a defendant is going to trial--but what about when a case has been under investigation for two and a half years, like mine, and the evidence is local and easily obtainable (meaning, it shouldn't have taken two and a half years), or has been confiscated in an all-out raid?
At what point can I file a Brady motion?
I asked my lawyers.
They thought about it, and said that maybe, if I have reason to believe that false information was given to the prosecutors, I could file a motion, a la Brady, asking a judge to force the government to open the affidavits in my case, because I believe the reasons given for carrying out the raid on my clinic were faulty.
In addition, and more specifically related to Brady, I would ask for any evidence obtained by the prosecutors post-raid that might, in fact, point to my innocence. This is evidence that, prior to Brady, was kept hidden in many criminal cases, perhaps because it might have made the government prosecutors look incompetent.
There is one type of material that government prosecutors have tried to keep hidden, in the past, pre-Brady, and that's evidence that might be used to impeach a state witness, or otherwise cast doubt on a prosecution case. Impeachment evidence must be turned over even if it has nothing to do with the defendant's guilt or innocence.
This is called "exculpatory evidence," and there are five types of such evidence:
1. Evidence that the criminal act never occurred;
2. Evidence that the criminal act occurred, but the defendant didn't do it;
3. Evidence that the criminal act occurred and the defendant did it, but it wasn't legally a crime;
4. Evidence that the criminal act occurred, the defendant did it, but it wasn't the crime being apprehended.
5. Evidence the criminal act occurred, the defendant committed it, but wasn't legally responsible.
Not only are all the above considered examples of Brady material, but so is any material that is not consistent with the prosecutor's theory of the case.
Moreover, in 1995 Kyles v. Whitley established that evidence must also be disclosed by the prosecution even if it attacks the reliability, thoroughness, and good faith of the police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against prosecutorial attacks.
This means that if I were able to file a Brady motion I could force the prosecutors to divulge information that might show they didn't have enough evidence to justify a raid on my office, information that might even prove my innocence, or impeach (i.e., ruin, or making a laughingstock of) their (so-called) case against me.
"Let's do it!" I said. "Let's file a Brady motion!"
"Whoa!" my lawyers said.
"They don't have anything on me, so let's force them to show their cards. They're bluffing!"
"Yes, but you haven't been indicted."
"So?"
"The Brady case established the requirement for a prosecution to show all evidence after an arrest, and sometimes after sentencing. You haven't even been indicted."
"You act as though I should hope for an indictment, so I can force the evidence to come out."
"Not at all. You don't want to be indicted, rest assured of that."
"Can I force the prosecutors to show cause via Brady prior to an indictment?"
"That's debatable."
"I may not have been indicted, but I've been punished, and my professional life is a mess."
"You're still practicing medicine, aren't you?"
"Yes," I said.
"And you have enough patients?"
"We're busier than ever."
"So, what's the problem?"
"I can't hire another doctor. No one will come near me. Would you want to work for someone who is 'under investigation by the federal government,' or 'might be convicted of fraud'? Nobody wants to get entangled with someone like that. And my office set-up assumes multiple providers, including two more doctors. I can't do it alone--which is why I'm closing."
"That makes sense," they said, shaking their heads, "but it's a real shame."
"So, what about a Brady motion?"
They spoke among themselves about other cases, and said a Brady motion might irritate the prosecutors, who could puff up their porcupine skin costumes and stick me in other ways.
"It's probably best to lay low," they concurred. "You always take a risk when you go after the government."
"I'm disappointed," I said.
"That's our best advice," they answered. "Sorry."
"What do you think should happen from hereon in?"
"Let's let the prosecutors save face by allowing the statutes to run out."
"Right," I said. "That's boring."
"Boring is good," they told me. "Leave it alone."
I shook their hands, thanked them, and walked out to my car.
The meter had run out while I was in the lawyers' den.
I scanned the street--no police and, thank goodness, no parking ticket.
I felt lucky, somehow.
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