Editor’s note: This is a guest blog post by David Deitch, a Washington, D.C.-based litigator and the author of the White Collar Criminal Defense Blog. He can be reached at firstname.lastname@example.org.
According to the D.C. Court of Appeals, when it comes to Brady disclosures, late is not necessarily better than never.
In Miller v. United States, decided on March 3, 2011, the court overturned a conviction for assault with intent to commit murder while armed and other related offenses based upon a finding that the government had committed a Brady violation by waiting until trial to disclose information favorable to the defense. The case should serve as a warning to prosecutors who routinely delay Brady disclosures until the latest possible moment.
The issue in Miller related to the question of which hand the gunman used when he shot the victim. The defendant was right-handed. At trial, Timothy Taylor testified that the assailant had shot the victim with his right hand. On cross-examination, however, Taylor admitted that a year earlier, he had twice told the grand jury that the gunman used his left hand.
Taylor’s grand jury testimony – including the suggestion that the gunman may have been left-handed – was provided to the defense for the first time during the trial as part of the government’s Jencks disclosures (of prior testimony of a witness). This information was particularly significant because police had arrested two people near the shooting in a truck that smelled strongly of gunpowder. It was not until the defense had rested and the judge had already begun instructing the jury that defense counsel realized that, during a videotaped police interview, one of these people signed the card acknowledging his understanding of his rights with his left hand. The trial court did not permit the defense to reopen – stating that the government’s disclosure was “better late than never” – and Miller was convicted.
In reversing Miller’s conviction, the Court of Appeals emphasized that the lateness of the government’s disclosure had deprived the defense of the chance to make effective use of the information. The court observed that some commentators believe that “[p]rosecutorial resort to a strategy of ‘delay and conquer’ . . . [is] not . . . uncommon” but warned that such an approach “is not acceptable.” The question of when the government must make Brady disclosures is a fact-specific inquiry, but Miller makes clear that the courts will not tolerate an unjustified decision by the government to delay the disclosure of Brady information.
The reversal was handed down in a 2-1 ruling of the court panel. Interestingly, one of the judges in the majority, Judge Vanessa Ruiz, went so far as to write a separate concurring statement, contending that the trial court should conduct an inquiry as to whether the government lawyers complied with professional ethics rules in making the disclosure as they did and in describing their Brady disclosures to the court. However, Senior Judge Frank Schwelb, the other judge in the majority, did not agree with Ruiz’ recommendation, so no such inquiry will be conducted. Still, the fact that one appellate judge held this view indicates again how seriously this court regards Brady violations.
Federal Criminal Procedure