One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland,  373 U.S. 83(1963).  This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s  co-defendant that Brady did not kill the victim, the other guy did it.  The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith.  Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment  demands that the prosecutor give it up.

Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse.  Lawyers, by our very natures, are competitive people.  We want to win.  Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person.  But, here’s the crazy part of the “rule” as it has been modified over the years.  The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc).  Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over.  Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.

The problems with the Brady rule are not something dreamed up by yours truly.  I have had multiple cases over the years where through dumb luck or perseverance we found exculpatory evidence which the prosecutor had in his files all along (yet he once more forgot to let me know about it).  Another question is sometimes asked: what does the Judge do when it is proven that the prosecutor broke the law by not turning over evidence that shows the Defendant did not do the crime?  In 99% of the cases, NOTHING.  There are a few high-profile matters where the prosecutors got into trouble, but the vast majority suffer no adverse consequences by hiding the ball from defense counsel.

Another rule comes from the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972).  The Court said that the prosecutor’s failure to let everyone know that a witness had been promised not to be prosecuted in exchange for his testimony was a failure to fulfill the duty to present all material evidence to the jury, thus violating due process.  This is the rule even if the prosecutor’s hiding of the “deal” with the witness was done out of negligence and wasn’t intentional.  We often use the term Giglio material when talking about any deals that witnesses in a criminal case may have entered into with the government.

Now, the reality of the Giglio rule.  I’m working on an older case where shortly before trial the AUSA sent a “target letter” to a person they really wanted to use as a witness against my client.  The guy had previously declined to say anything.   So, prosecutors sent him a target letter, which tells that person (and his or her lawyer) that the government is seriously considering bringing a federal criminal case.  Amazingly,  the target wakes up,  smells the coffee, and conveniently “remembers” a conversation with my client from ten years earlier!  The prosecutors claim they are following the law by telling defense counsel about the target letter, but we all know the real deal was worked out between the AUSA and the target’s lawyer, nothing in writing that would have to be turned over, but when the target amazingly recalls the decade-old “talk” with my client, no criminal case is ever brought.  It’s enough to make me sick sometimes.

I need to get back to reviewing then discovery materials in this case I’m working on.  I’ll write more in a few days about some other ways that reality is different than the rules in a criminal case.

So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States.  The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun.  The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison.  Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm.  Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed.  In kind of a surprising move, the Supreme Court finally accepted the case for review.

In their filings, the feds say that the separate sovereigns doctrine should remain unchanged. They point out that the actual words in the double jeopardy clause bar successive prosecution and punishment for the same “offense”, not for the same conduct. When the Constitution uses the term “offence,” goes the feds’ argument, the double jeopardy clause is referring to the violation of a law. Therefore, focusing on how the same conduct can violate two different sovereigns’ laws, the feds claim this means that it therefore constitutes two different offenses, which can then be punished and prosecuted separately. The feds blame it on James Madison and the other brilliant individuals who put our Constitution together, arguing that if the Framers had wanted the double jeopardy clause to apply more broadly, they would have used the term “conduct” or “acts” rather than “offence.”

Very able counsel for Mr. G. look at the words in the Constitution very differently.  For starters, they point out how nothing in the text says anything at all about any exception.  They essentially are saying “what confusion is there when the Framers said ‘thou shalt not go after a guy twice for the same offense’?”   Mr. G.’s team stress that the text of the clause bars prosecution of the “same offence,” without suggesting that two prosecutions for the same offense would be acceptable as long as they are prosecuted by two separate sovereigns. Instead, Mr G.’s lawyers noted that Congress previously considered but rejected an exception that would have allowed the federal government to prosecute a defendant even after he’d been convicted for the same offense under state law.

Mr. Gamble also raises some additional arguments, pointing out that the  separate sovereigns doctrine is inconsistent with the purpose of the double jeopardy clause. This dumb rule “hardly serves the deeply rooted principles of finality and fairness the Clause was designed to protect,” especially when it would still require two trials and could potentially lead to double punishments.

Another argument by Mr. G. points out that when the Supreme Court adopted this dual sovereignty rule, the Court apparently  believed that duplicative prosecutions by state and federal governments would be “exceedingly rare.”  The dual sovereignty rule was created on those “old days” when federal criminal law was very limited. However, as anyone foolish enough to read this blog knows, federal criminal law has expanded significantly during the past half-century.  As Mr. G. observes, that expansion is “far beyond what the judicial framers of the separate-sovereigns exception could have possibly imagined.” Based on that half-decade expansion, “nearly every crime can be charged both in state court and in federal court.”

Fairness should be the bedrock principle for any decent criminal justice system.  Letting a prosecutor take a second bite at the apple for the exact same crime is the opposite of fairness.  As I mentioned when taking about the first time I encountered this rule, if “we cheated ’em fair and square the first time”,  in fairness the other side should not get the chance for a second whack at the Defendant.

What happened in Overton and Turner is truly disturbing.  A middle-aged woman was brutally murdered in a “bad” neighborhood of Washington, DC in 1984.  Seven men went to trial, were found guilty, and have spent the last three decades in prison after being convicted.  The prosecution’s theory at trial was that the victim died at the hands of a gang attack that was witnessed by several individuals.  Years after the convictions, the Defendants (and their ever-vigilant attorneys) discovered a raft of helpful and exculpatory evidence that the prosecutors and police officials had withheld.  1) The police and lead prosecutor got statements from witnesses who implicated another person, McMillan, as being on the scene and acting suspiciously.  McMillan later attacked other middle-aged women and was convicted for those crimes that had disturbing similarities to the case in question. 2) The prosecution’s theory always was that the crime was a group attack, even though the prosecutor had suppressed evidence from other witnesses that only one or two perpetrators could have been in the area where the victim was attacked. 3) The witnesses called by the prosecutors at trial had lots of problems that the prosecutors decided to keep from the defense, issues such as one was high on PCP when she identified suspects, that same witness asked her friend (another witness) to lie, another witness was physically threatened by the police when she did not say what they wanted her to say.  All of this withheld evidence likely would have been helpful to the defense. Oh, I forgot to mention, the jury acquitted two Defendants who heard from these same prosecution witnesses, and needed 40-50 votes before it could convict two of the others.

The legal issue in these cases is whether the withheld evidence was “material”.  Under the Brady rule, a Defendant does not get a new trial when the prosecutor suppresses evidence unless that evidence was important enough so that it would have impacted the jury.  The exceptionally talented lawyers representing the Defendants contend that the lower courts used an improperly harsh “materiality” standard, and that the case should be sent back for further proceedings.

Cases like this keep me up at night.  Like most lawyers in my business, I have seen situations where prosecutors hold back on exculpatory information.  I recall one case where an otherwise very honest and honorable prosecutor knew about yet failed to tell me that his main witness had been caught telling an identical lie to what she said about my client.  Only by dumb luck did I discover the information shortly before trial.  My client was acquitted, but nothing ever happened to this prosecutor.  Hopefully, the Supreme Court will send the message when it decides these two cases in the near future.

The supervised release revocation statute is at 18 U.S.C. § 3583(e)(3). It permits a district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release” upon a finding “by a preponderance of the evidence that the defendant violated a condition of supervised release.”

In 2000, in Apprendi v. New Jersey, the Supreme Court held that, other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In 2004, the Supreme Court explained in Blakely v. Washington that the “statutory maximum” is the maximum sentence a judge may impose based upon the facts reflected in the jury verdict or admitted by the defendant.

The Eleventh Circuit distinguished the revocation of supervised release from Apprendi and Blakely. The Court reasoned that the defendant was already convicted of the underlying offenses and was granted only conditional liberty, depending upon his obeying the limits of his supervised release. In holding that a violation of supervised release need only be proven to a judge by a preponderance of the evidence, the Court joined six other circuits.

The Cunningham opinion is available here.