Criminal

Brady Duty of Prosecutor to Disclose Mitigating Exculpatory Evidence Part 2

The ABA came out with a policy on Brady and why should you care! You know there some large organization of four hundred thousand lawyers and they meet all over the place and they’ve come to San Antonio but you know, we hardly commute with them much. Well, reason is important. And the reason you should embrace and use ABA policy whenever you can is because its prosecutors and judges and police officers and professors and defense lawyers, that agreed from all over the country. So when they come out with policy that they all agree on it has a tremendous impact and here they agreed that the prosecution has and governments should be encouraged to make this rule, rule of law everywhere that the prosecution should seek from its agents and make client timely disclosure to the defense before trial of all information that’s known to the prosecution that tends to negate the guilt of the accused. Mitigate the offense charged or the sentence or impeach the witnesses. So this is the definition that all those groups have agreed upon, you said to explain to your prosecutors and their agents and investigators what should be revealed to you and when.

More importantly, the second resolved indicates that all those groups agree that disclosure to the defense should be made of these matters prior to any plea agreement. So you don’t have to wait for January of 2014 and Texas larr rule to kick in, you can use this policy that explains this you know, across the country prosecutors and judges and defense lawyers and police officers agree this profaneness this is what will occur. And I’m reminding you that you know I told you Ogres recognized that this would be appropriate as well and that’s a 1976 case, from the Supreme Court.

Why do I mention that? Well, the Supreme Court came out last year with 2 cases that recognized that we have to be effective in plea negotiations. That means picking up the file and making a quick judgment call about the plea before the prosecutor tells you about problems with their case or things that might help you or that might mitigate punishment or sentence, that something you shouldn’t be doing anymore. Both you and the prosecutor have a duty to look further than the face of the file before you enter into a plea. And the prosecutor has a duty to reveal that Brady to you. Now, before 2014 before the new law goes effect in Texas to tell you that favorable information so your client can make a knowing involuntary plea, and one with the effective assistance of counsel. So again, even now in the plea situation you can suggest to a prosecutor; unless you want to do this again let’s do it like the first time.

How do you determine that Brady might exist when you don’t know about it? How did these lawyers in Morton end up making such an awesome record? That they didn’t get something they didn’t know existed? Well, here’s some clues. If the experts’ conclusion in a case is 100% certain or they use some jargon from their field that is kind of undefined and vague, you know. One example I had in a recent case was,” well I can tell you where the cell phone use which tower because of the line of sight” and I’m like,” my cellphone works in elevator what are you telling about the line of sight?” “Well you know” “it works in my office. What does that mean?” You know I couldn’t get a straight answer out of the guy! When one of these two things happens you’re not getting the favorable evidence that undermines and impeaches the witness. I would like to use a funny example from the “My cousin Vinny” film. Could you play the video?

Male 1: is that a drip right here?
Female 3: yeah!
Male 1: When was the last time you used the bathroom?
Female 3: so?
Male 1: well did you use the faucet?
Female 3: yeah!
Male 1: why didn’t you turn it off?
Female 3: I did turn it off!
Male 1: well if you turned it off why am I listening to it?
Female 3: did it ever occur to you it could be turned off and drip at the same time?
Male 1: no! Because if you turned it off it wouldn’t drip!
Female 3: maybe it’s broken!
Male 1: is that what you saying that it’s broken?
Female 3: yeah, that’s it. It’s broken!
Male 1: you sure?
Female 3: I’m positive.
Male 1: maybe you didn’t twisted hard enough.
Female 3: I twisted it just right.
Male 1: how could you be so sure?
Female 3: if you would look in the manual, you will see that this particular model faucet requires a range of 10 to 16 foot pounds of torque. I routinely twist maximum allowable torque.
Male 1: how could you be so sure you used 16 foot pounds of torque?
Female 3: because, I used a craftsman model 1019 laboratory edition signature series torque range. The kind used by Caltec high energy physicists and NASA engineers.
Male 1: well in that case, how could you be sure that’s accurate?
Female 3: because a split second before the torque range was applied to the faucet handle, it had been calibrated by top members of the state and federal department of weights and measures to be dead on balls accurate! Here’s the certificate of validation.
Male 1: dead on balls accurate?
Female 3: it’s an industry term.

so, you know it’s funny but we’ve all encountered it. We have the expert witness on the stand and they’re using “line of sight”, something that doesn’t make any sense. Turns out the fellow is an expert in repairing cell towers and didn’t have any idea about how the signals went from one place to another and how cell towers use really worked in the like and we’ll see how that turns on appeal. But if someone’s telling you, you know that they just know a 100% down to the address where someone is using a cell tower or you know they know 100% that it’s your client because there’s some DNA transfer but they can explain how it got there. Whatever the heck it might be, there’s a 100% chance there’s Brady evidence you’re not getting. Or if they use these vague industry terms, there’s something behind that curtain that undermines what the expert is saying to you. It’s not a 100%.

In the Willingham case, some of the evidence that was offered during the trial was that, there was crazed glass that was caused by accelerance being used and it turns out, the science was; that cold water, that firefighters used. But that fire caused crazed glass. Or one of the, the fire Marshall testified,” the fire speaks to me and tells me the truth” Honest to God this was his testimony. You know if you hear nonsense like that, you know we always hear it when we’re under the gun in a tuff trial, a Capital Murder trial where 3 little babies were killed. Or innocence child sexual assault case and it just seems terrible. You know step back and take time to listen and ask yourself you know, “what am I missing here?” If this is the testimony and they’re 100% sure, there’s something they’re not telling you.

Francisco Hernandez

Author Francisco Hernandez

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