Thursday, November 06, 2008

When Prosecutors Hide Evidence


The Cool Justice Report
Nov. 6, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

What happens when the prosecution intentionally withholds critical evidence and a defendant is convicted?

In 1963, the United States Supreme Court mandated that prosecutors had a duty to disclose, upon request, all material evidence favorable to a criminal defendant, irrespective of a prosecutor's good faith or bad faith. The court refers to this as exculpatory evidence, which is either relevant to negate a defendant's guilt or mitigate punishment.

Brady v. Maryland held that the suppression of favorable evidence violates an accused's right to due process of law, even when it is "known only to police investigators and not to the prosecutor."

This ruling figures prominently in two recent public corruption cases.

In the trial of recently convicted Alaska Senator, Ted Stevens, the judge sanctioned prosecutors for withholding exculpatory evidence. Courts have wide latitude fashioning remedies for Brady violations. During the Stevens' trial the court chastised the prosecutor in front of the jury and excluded much of the withheld evidence. On appeal Stevens now complains that the court should have gone farther in its sanctions.

The Second Circuit Court of Appeals in New York recently reversed the conviction of Charles Spadoni, a defendant in the bribery and racketeering case of former Connecticut State Treasurer Paul Silvester and Triumph Capital Group. Spadoni, a politically active lawyer and friend of Silvester, was convicted of racketeering, racketeering conspiracy, bribery, wire fraud and obstruction of justice.

The Connecticut Treasurer's Office managed billions of dollars in state pension funds, and the Treasurer had discretion to invest these funds. At the time Silvester joined the Treasurer's Office, Triumph Capital Group, Inc. was managing some of the state pension fund's investments. Spadoni was hired as Triumph's general counsel, through Silvester's influence.

When a Brady violation is discovered after the verdict a defendant can file a motion for a new trial. Judges will conduct a hearing, even taking evidence, to determine if there has been a violation.

A judge will not grant this motion unless convinced that "the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Spadoni filed the motion, claiming that the government unconstitutionally suppressed material evidence. The Court of Appeals agreed and reversed the case for a new trial on all but the obstruction of justice count.

Not all Brady violations require conviction reversals. There must be a showing that the evidence is material; that is, "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Often, defense counsel is not alerted to the existence of potential Brady material until after the trial. Many times it is mere serendipity that the existence of this withheld information becomes apparent.

Courts have determined that a defendant has a duty to attempt to identify potentially exculpatory information. The burden, to determine if the evidence is potentially exculpatory, however, rests solely on the prosecution. Courts are reluctant to grant requests by defense attorneys to conduct inspection of the prosecution's file, referring to these requests as "fishing expeditions."

The instances of an appellate court reversing such a conviction for this reason are rare. The Appeals Court found that the government suppressed notes from a proffer session with a central government witness that could have impeached that witness' testimony that directly bore on Spadoni's intent.

Brady, and these later cases, demonstrate that courts will strictly police prosecutors when there is a failure to produce exculpatory evidence, even if a conviction must be sacrificed. The integrity and fundamental fairness of the trial process is paramount to the government's ability to gain a conviction.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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  • 1 comment:


    In my erstwhile experience as a member of the criminal defense bar, in NY state courts, most judges will twist themselves into pretzels to deny meritorious defense motions, particularly when they're targeting prosecutorial misconduct. And so will appellate courts.