The conviction and sentence of a man in California were recently vacated when it was discovered that the government had improperly withheld exculpatory material from his defense team at trial. We read a lot of stories about the failures of Brady v. Maryland and the seeming inability — or lack of desire — of courts to free defendants or to sanction prosecutors who flagrantly violate the law. It is nice to report a win for a defendant as a change of pace–not to mention a win for an “unpopular” defendant who was accused of conspiracy to bomb federal property.
In Brady, the Supreme Court held that due process requires prosecutors to disclose to defendants any exculpatory evidence (evidence that is “favorable to the accused”) that could affect a conviction or sentence.
This seems like a simple rule. In reality, it is not.
Only prosecutors know what is in their files and only the prosecutor in charge of securing the conviction in the case is tasked with determining what is “exculpatory” and what is not. Some USAOs have “open file” policies and others do not, leaving even more discretion in the hands of the government to pick and choose what documents and information to disclose to the defense under Brady.
Plus, there are few examples of prosecutors being disciplined for violating Brady, so it seems—at times—that they can act with impunity.
Judge Alex Kozinski of the Ninth Circuit wrote in a dissent a few years ago, that
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
A 2013 New York Times editorial noted:
The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.
Mr. McDavid’s Trial and Conviction
In early 2006, a college student named Eric McDavid was arrested on charges of conspiracy to bomb federal property. Mr. McDavid formed the conspiracy during the latter half of 2005 and was joined by a woman and two other men. The conspiracy targeted a number of structures in the Sacramento, CA area, including the Nimbus Dam, several cell phone towers, and the Institute of Forest Genetics center run by the United States Forest Service.
While two of his co-defendants pleaded guilty, Mr. McDavid fought his charges. At trial, he offered an entrapment defense. The woman who worked with them (referred to only as “Anna” in court documents) was an FBI informant. Mr. McDavid tried to argue that he had had no propensity to commit the crime. Instead, Anna coerced him by manipulating their sexual relationship at the recommendation of the FBI. Needless to say, Anna’s credibility was a key issue for the defense.
Nevertheless, Mr. McDavid was convicted and sentenced and, in 2011, lost an appeal before the Ninth Circuit.
Fighting After Losing the Appeal
After his appeal Mr. McDavid continued to fight.
First, he made a number of FOIA requests for the FBI information. The request asked the FBI to produce documents “which pertain to me, Eric Mr. McDavid … going back to 2000[.]” In response, the government sent him 2449 pages of information, many of which were redacted and most of which hadn’t been disclosed during discovery. In addition, the FBI withheld 868 pages that it maintained were “exempt from disclosure[.]”
Then, using the information from his FOIA request, Mr. McDavid filed a 28 U.S.C. § 2255 (habeas) motion seeking collateral review of his conviction and sentence. Mr. McDavid’s motion argued that the government failed to fulfill its obligations under Brady by withholding potentially exculpatory evidence from Mr. McDavid before his criminal trial.
The Information That The Government Failed To Disclose
Mr. McDavid’s habeas motion described three primary pieces of evidence that were not turned over under Brady.
First, the government did not disclose that an FBI agent had asked for a polygraph test by Anna but no such test was ever administered. Mr. McDavid stated that his lawyers had no knowledge of the initial order for the test or the subsequent failure to follow through. Had Mr. McDavid’s lawyers known about the FBI’s concerns about Anna’s truthfulness, the motion contended, they would have had a better shot of impeaching both her and her handlers.
Second, the government did not disclose the existence and contents of at least 51 reports that Anna generated while working with the FBI. Using the contents of the FOIA report, Mr. McDavid learned that these reports were sent from FBI Miami to FBI Sacramento and marked for “possible use” in the government’s case against him. Of these 51 reports, the government’s opposition brief admits, 16 directly mention Mr. McDavid. However, Mr. McDavid’s attorneys only received 5 of the reports in discovery.
Third, the government did not disclose correspondence between Mr. McDavid and Anna. Though no emails or notes were produced before trial, FOIA documents revealed that the government had at least ten emails and one handwritten message that Mr. McDavid had sent to Anna. Neither the contents of the messages nor the documents themselves were included in the FOIA response. However, the response contained a record that the emails and letter were sent to the FBI Behavioral Analysis Unit. Those documents, Mr. McDavid’s motion stated, could also have been instrumental in attacking Anna’s credibility.
The Procedure to Raise Brady Violations
Mr. McDavid’s path to victory was a long one. Following his conviction, appeal, FOIA request, and initial § 2255 motion, Mr. McDavid faced nearly three full years of motion practice. After receiving the § 2255 motion, the government filed a motion in opposition along with a declaration by Anna’s FBI handler. The handler’s declaration described the contents of the undisclosed documents and information. In its declaration and motions, the government stated that it had never been required to produce the information Mr. McDavid demanded because, among a few other reasons, the reports were “benign” or “contained no derogatory information” about Mr. McDavid.
In February of 2013, Mr. McDavid filed a reply arguing that those documents would have been vital to his entrapment defense. The reply went on to state that reports such as one in which Anna stated that Mr. McDavid was “not of interest to the FBI” and “non-threatening” could have been used to defeat the government’s position that he had a propensity for criminality.
Over the next several months, Mr. McDavid filed two supplemental memoranda in which he elaborated on his points and refuted the government’s arguments. Mr. McDavid also filed an amended memorandum in support of his discovery claims and a motion for discovery at the court’s request.
Once Mr. McDavid submitted his motion for discovery, things began to move more swiftly. The government disclosed a number of documents it had previously withheld and the court set a briefing schedule and status conference. Within a month, the government disclosed even more documents that had not been produced in underlying criminal proceedings. Three days later, the government and Mr. McDavid appeared before the presiding judge with a final settlement.
Ultimately, the court vacated Mr. McDavid’s conviction and sentence. While the parties were still in dispute over some of the individual claims, both sides wanted to put an end to the litigation. There was no disagreement that the court should grant relief under § 2255 and, as a result, the court decided to forego the evidentiary hearing and issued no recommendation (both of which are usually required by Rule 8(b) of the § 2255 rules).
The settlement agreement recommended the judge sentence him to time served followed by two years of supervised release. Mr. McDavid was released from jail on January 8th of this year.
Some Tips to Get Brady Material
A complete post to cover how to request Brady material is beyond my scope today, but here are a few basic tips:
- Ask for disclosure of this material early and often. This means pre-trial, during trial and before closing and sentencing. Make your record.
- Propound specific requests such as material relevant to the witnesses in the case or particular issues (as well as a broad request to be sure the government cannot avoid complete disclosure)
- Ask the government to search specific places for relevant material, such as police reports and other agencies (for example, if the case arose from an OIG investigation, be sure that the investigating agency’s files are searched).
- Get the government’s response to your requests in writing or on the record.
- Do not hesitate to make follow up requests during your pre-trial investigation.
- There are, of course, post-conviction remedies through habeas proceedings if you discover evidence after your client has been sentenced.
Mr. McDavid’s case is an example of the most important rule: Never give up.