Monday, May 15, 2006

CA: trial prosecutor's flagrant Brady violation entitles People to another bite at the apple

People v Williams, __ NY3d __
[available here]

Defendant Ronald Williams was arrested for selling and possessing drugs, and prior to his trial he moved to suppress "prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause." (People v Williams, __ NY3d __.) The People called only one witness at the suppression hearing--Detective Anthony Gordon. Gordon testified that he saw defendant exchange money with a man then under surveillance for dealing drugs. (Id at __.) At the time of Gordon's testimony, the prosecutor knew that Gordon was under investigation for perjury, with allegations that in another drug case Gordon "had admitted to an assistant district attorney that he did not see the defendant in that case remove a bag that contained crack from a stairway in a building in East Harlem even though he testified before a grand jury that he had." (Id. at __ [G.B. SMITH, J., dissenting.) The prosecutor did not inform the court of the perjury investigation; instead, the "People called no other witnesses, and relied on Gordon's testimony in opposing the suppression motion. The court denied the motion." (Id. at __.)

After the People rested their case at trial, defense counsel "asked that Gordon be made available as a defense witness," and it was at this point, for the first time, that the People told the Court about the perjury investigation involving Gordon. (Id at __.) Defense counsel immediately asked that the pretrial suppression motion be granted based on the failure of the prosecutor to disclose that the only witness at suppression was being investigated for perjury; the court chose a somewhat different remedy:

Instead, the court conducted a new hearing, at which it received Gordon's pre-trial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon's hearing testimony and the testimony he gave as a defense witness at trail. The Court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.

(Id. at __.)

Judge R.S. Smith wrote the four Judge majority, and affirmed the defendant's conviction. Despite recognizing that the misconduct of the prosecutor was "serious" and concluding that "[t]here was no excuse for the People's failure to make the hearing judge aware of the perjury investigation of Gordon . . . at the same time that the People were asking the hearing judge to rely on Gordon's testimony to deny suppression", the majority concluded the trial court's chose of remedy was not an abuse of discretion. In so holding, the majority struck a familiar refrain:

[N]ot every significant misjudgment by the prosecution entitles the defendant to a windfall. [...] Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. [...] The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.

(Id. at __.)

Or stated another way: because there was probable cause for defendant's arrest (and overwhelming evidence of his guilt), the defendant should not be entitled to any relief that is going to result in the suppression of the evidence found pursuant to the arrest, even where deliberate prosecutorial misconduct is involved. He did it, after all.

Judge G.B. Smith wrote for the three dissenting Judges:

At a Mapp hearing to suppress physical evidence, the prosecution permitted a police officer to testify without revealing that the officer was under investigation for perjury. Moreover, the testimony of that officer before the grand jury was false and his truthful testimony would not have established probable cause for an arrest. The failure of the prosecution to reveal Brady material should have led to the suppression of evidence taken from defendant at the time of his arrest. No reopened or new suppression hearing should have been permitted. [...]

Suppression is warranted because of the untimely disclosure alone, regardless of the offer and acceptance of a re-opened suppression hearing. The prejudice to defendant could not be undone, especially give that Sergeant Washington had already testified at trial to the events of April 12, 2001, and a re-opened suppression hearing would merely give him the opportunity to reiterate his previous testimony. [...]

Previously, this court has denied the prosecution a second bite at the apple when all the evidence was available at the time of the first hearing, and defendant would be prejudiced if the prosecution were allowed a second attempt at trial or a pre-trial proceeding. The prosecution is afforded only one 'full and fair opportunity' to present the evidence against defendant. Thus, if defendant is allowed nothing more than a de novo suppression hearing, the prosecution is given a second bite at the apple, which only further prejudices the defendant and rewards the prosecution for its failure to disclose material information.

(Id. at __ [G.B. SMITH, J., dissenting].)

The majority and dissent highlight two different notions of "justice" found in criminal law. The majority's decision focuses the narrow "justice" of the specific case; did the defendant do it? If yes, then justice is served by a result that protects the guilty verdict. The dissent's decision, on the other hand, is concerned with systemic justice--was the system fair? If not, then the outcome for the individual defendant does not matter, because it was not the product of a just system.

The Court of Appeals seems to be tracking towards the majority's view--a very results-oriented, individual "justice" approach, where the factual guilt of the defendant is the overwhelming consideration and almost any error along the way will be excused. This can only be bad for the systemic integrity of the criminal justice system, because any number of errors and procedural injustices are excused (and therefore encouraged to repeat) to preserve an end-result (guilt) that the reviewing Judges believe appropriate.

The nice thing about the dissent's approach is that, by insisting on procedural integrity, most of the time individual justice will be done, too. The occasional case like Williams--where if the dissenters had carried the day a drug dealer would walk free to reinforce the integrity of the system by punishing the prosecution for its deliberate misconduct--is the price of having a system that takes its procedural fairness seriously. This seems to be a price appellate courts in this state are less and less willing to pay.