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When Prosecutors violate the Brady rule, trials can be overturned.

The New Jersey Appellate Division has now taken this matter even further and declared that a Brady rule violation can even cause a criminal case to be completely dismissed with prejudice.

The Brady rule, named after Brady v. Maryland, requires prosecutors to disclose material, exculpatory information in the government's possession to the defense. Brady material, or the evidence the prosecutor is required to disclose under this rule, includes any information favorable to the accused which may reduce a defendant's potential sentence, go against the credibility of an unfavorable witness, or otherwise allow a jury to infer against the defendant’s guilt. 

Initially, the Brady rule was only applicable if the defendant made a pretrial request for specific information which the prosecution denied. In United States v. Bagley, however, the Supreme Court eliminated this request requirement and stated that the prosecution has a constitutional duty to disclose all material, favorable information in their possession to defendants regardless of whether it is requested. This duty is breached regardless of whether that information is withheld intentionally or unintentionally. 

If a Brady rule violation is discovered during trial, the court can either declare a mistrial or prohibit the prosecution from using unfavorable evidence which could be discredited by the withheld information. Because the Brady rule inherently involves a lack of information on the side of the defense, however, violations of the Brady rule are typically only discovered after the defendant is already convicted. As a result, the most common outcome of a Brady rule violation is overturning that conviction. Additionally, if the prosecution withheld Brady material intentionally or knowingly, they may be subject to sanctions.

In a decision just released, the New Jersey Appellate Division went a step further and completely dismissed the case with prejudice.

On July 8, 2021, Washington Township Police Officer Kyle Fisler met with the alleged victim, A.B., who reported that her then husband, D.A.B, had strangled her the previous night.

She specifically stated that she just wanted to get more information about filing an incident report, and that she did not want to press charges, have her husband arrested, or file for a restraining order. Instead, she wished to document the incident "if she needed to proceed in the future."

According to the police report, A.B. described to the police an argument she had with her husband the previous night. She reported that he had pinned her down on the bed and choked her three times. She further alleged that he "banged her head on the door and threw her to the ground." She said that she couldn’t breathe and "could not stop coughing and throwing up after the incident."

Based on A.B.'s allegations and her apparent injury, Officer Fisler issued a summons charge against the husband that same day charging him with third-degree aggravated assault, and the disorderly persons offense of simple assault. Thereafter, he was charged by a grand jury under an indictment charging him with third-degree aggravated assault. He was arraigned and entered a not-guilty plea. From April to October 2022, plea negotiations occurred. Meanwhile, the parties finalized their divorce, and they are no longer residing together. 

At some point, the husband's defense counsel learned that at some point after the arraignment, A.B.’s attorney sent a letter to the Prosecutors asserting that A.B. "will decline to cooperate in any prosecution of defendant;" and that A.B. "will assert her Fifth Amendment Privilege" if called upon to testify in his criminal trial.

However, when the defense counsel asked the Prosecutors if they had received any correspondence from the wife's attorney, they responded "no."

The defense counsel filed a motion to dismiss the indictment for prosecutorial misconduct and/or willful violation of the State’s discovery obligations.

The prosecutors argued back that they did not believe the actual physical correspondence was exculpatory or Brady material, therefore, it did not need to be turned over to counsel.

The Gloucester County trial judge granted the motion and dismissed the indictment with prejudice, reasoning:

This was a counseled representation from the victim that she wished to assert her rights under the Fifth Amendment of the Constitution. Whether it is pertinent to Defendant’s case is not for the State’s analysis. It is for the Defense to determine, once they have received that discovery, whether it is relevant to the case that they are representing the Defendant on . . . Asserting the Fifth Amendment means it is -- she is withdrawing the information. That does -- That essentially hinders the ability of the State to be able to present proofs [at trial] of what happened.

The court further observed that, without A.B.’s testimony, her previous statements to law enforcement inculpating defendant would be inadmissible hearsay. The court remarked, "I don’t understand why the State would continue to withhold that information from the Defense, so that they can make their adjustments to how they’re going to proceed in their case. It’s clearly a Brady violation."

Next, in considering, the appropriate remedy for the violation, the court expressly found the State’s conduct "purposeful." The Court noted: Not only was it misleading to say, well, yeah, she [A.B.] said all along she didn’t want to prosecute . . . [I]t is the obligation of the attorney[s] that represent the State of New Jersey to analyze what they have and to give it to the other side so they can analyze it and decide how to proceed . . . You cannot do that. You cannot withhold information from a Defendant that the victim is going to assert their Fifth Amendment privilege at trial and not testify against him.

The Prosecutor appealed this decision.

In a written ruling, Appellate Division Judges Sabatino and Chase were not the persuaded in the slightest, and they affirmed the trial court's ruling, finding that "the record amply supports the court's determination that the State misled defense counsel about the victim's willingness to testify. Additionally, the trial court did not abuse its discretion in ordering dismissal as a sanction for the State's purposeful violation of Brady v. Maryland, in failing to disclose potentially exculpatory material information."

The judges wrote:

Discovery must be turned over by the State so that defense counsel "may intelligently advise as to the defense and properly prepare for trial." State v. Cook.

The letter is clearly material. Its existence would certainly affect defendant’s decision about whether to go to trial. The letter made clear that, should the case proceed to trial, the Prosecutors potentially would have virtually no evidence with which to satisfy its burden of proof. Defendant’s strategy, both at trial and during pretrial plea negotiations, would undoubtedly be materially altered by the victim’s unwillingness to testify.

The Prosecutors' conduct also violated the principles of Brady. The letter was favorable to the accused, either as exculpatory or impeachment evidence. The letter concerned the non-availability and non-cooperation of the sole witness to the alleged criminal act. If A.B. did not testify at trial, then the Prosecutors would likely be unable to introduce her earlier statement to the police into evidence, due to both hearsay restrictions and the Confrontation Clause. See State v. Williams, holding that a prior signed statement by a witness could not be admitted as a prior inconsistent statement where the witness refused to testify and therefore could not be cross-examined.

The timing of the Prosecutors eventual admission of the existence of the letter was also highly problematic. It could reasonably support an inference that the Prosecutors made a strategic decision to elicit defendant's acceptance of a plea offer before defendant’s attorney learned of the victim’s correspondence.

For these many reasons, the trial court correctly determined that the Prosecutors conduct here amounted to a violation of both discovery principles and the Brady doctrine.

The Prosecutors misconduct was "purposeful" and "misleading." They knowingly withheld discoverable evidence that would materially affect defendant’s pretrial preparation and position in plea negotiations. The record supports the court's perception that the Prosecutors withheld the information about the victim's unwillingness to testify intentionally, and not inadvertently.

When, as here, the Prosecutors fails to adhere to the Rules of Court, in a manner that can give it an unfair advantage in plea negotiations, the integrity of the criminal justice system is compromised. The improper conduct exhibited in this case justifies a strong judicial sanction.

Dismissal of the indictment is the only adequate remedy in this case. Additionally, it is necessary to deter similar future misconduct by the Prosecutors. 

"We anticipate the sanction will deter others from engaging in similar conduct in the future," the Appellate Division judges concluded.

The winning attorney is Robert M. Perry Esq. of Rosenberg, Perry & Associates, LLC.

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Anonymous said...

Based on reading this I would question why the case against Osher E isn’t being tossed on the same grounds
Just wondering their was evidence held back from the defense in his case as well??

Anonymous said...

@Anon 11:04

Perfectly said!!

Justice NOW!