Legal News

Here?s a Story, of a Rule Called Brady?

By Dan Slater

Momentarily, U.S. District Judge Emmet Sullivan is going to bang the gavel and resume the circus that has become the corruption trial of Alaska Senator Ted Stevens. At issue: Will potentially exculpatory FBI records that could have aided in Stevens’ defense (a.k.a. Brady material) but were withheld by the prosecution lead to a dismissal of the indictment, a mistrial or neither?

For guidance, we called up Ropes & Gray attorney Michael McGovern, a former SDNY prosecutor. “Viewing it in isolation,” said McGovern (alluding to the earlier dispute over the disappearing witness), one can see why the judge might be upset. I don’t know what the basis was for redacting part of the witness’s prior statements. Usually, they are turned over lock, stock and barrel. But apparently the government redacted out what’s referred to as Brady material – potentially exculpatory material. There are two types of Brady material: There’s pure Brady — for example, an affirmative statement by a witness saying Stevens is innocent. And then there’s Brady impeachment material, which doesn’t directly show his innocence, but tends to undercut the credibility of a government witness. Here, the redacted evidence seems to be more like Brady impeachment than pure Brady.”

But McGovern thinks the chance of Judge Sullivan declaring a mistrial is slim. “But to the larger question of what the judge is going to do, unless he finds there was purposeful prosecutorial misconduct to gain a tactical advantage — as opposed to sloppy government work — then he’s unlikely to toss the indictment,” McGovern told the Law Blog. “The fact that the disclosure is happening now, as opposed to a week or so before trial, should not make a material difference, except that defense counsel did not get to mention it in his opening statement to the jury. On the other hand, [former VECO CEO Bill] Allen has yet to go on cross. And since he’s already locked in on his direct, [Brendan] Sullivan can have a field day.”

Makes sense to us, although earlier reports from today indicate that the prosecutor, Brenda Morris, and Judge Sullivan might differ on the issue of intent. When explaining away the government failure to hand the records over until last night, Morris reportedly blamed “human error.”

But Judge Sullivan reportedly said, “It strikes me that this was probably intentional. I find it unbelievable that this was just an error.”

Full post as published by Law Blog - WSJ.com on October 02, 2008 (boomark / email).