Alonzo R. Vaughn & Carl S. Morton v. United States, Nos. 11-CF-228 & 11-CF-363 (decided July 3, 2014)
The Players: Judges Glickman, Easterly, and Pryor. Opinion by Judge Easterly. Cory L. Carlyle for Mr. Vaughn. Amanda R. Grier and Saul M. Pilchen for Mr.
Morton. Trial judge: Robert E. Morin. Trial prosecutors: Mary Chris Dobbie and Reagan
M. Taylor.
Quick take:
This is an important Brady opinion
that, while quite lengthy, deserves a careful read. Here are some highlights of important principles the opinion addresses:
- Timing of Brady disclosures: The goal of Brady “is not achieved by last-minute information dumps. Rather, where disclosure of Brady is concerned, there is no time for strategic delay and ‘as soon as practicable’ should be the approach.” “Brady disclosures are required well before the scheduled trial date…” Specifically, in this case where the government knew about the information at least two months before trial, disclosing it one week before trial was not timely.
- Burying Brady in other disclosures and not identifying it as Brady: “Brady does not authorize the government to engage in a game of hide-and-seek, or require the defense to scavenge for hints of undisclosed Brady material.” In this case, the government argued that it had not suppressed the favorable information because it had disclosed it – or at least partially disclosed it – in a pre-trial motion. The Court disagreed with the government in part because the government had not explicitly identified the information as Brady material.
- Brady “summaries” instead of source documents: “Even if it is theoretically possible for the government to fulfill its disclosure obligations under Brady by means of summaries of preexisting documents, such summaries must be sufficiently specific and complete…. [W]e consider the required level of detail from the perspective of the defense; where source documents exist, the government must summarize … them with every detail that might have been relevant to defense counsel’s preparation as counsel viewed the case. This may be challenging for the government, which presumably is not privy to defense counsel’s thoughts and theories pretrial. Accordingly, the government withholds source documents at its peril.”
- Duty to Search for Brady information: The government has a duty to search branches of government closely aligned with the prosecution and “[f]or such an important witness [one of two witnesses to identify the defendants] the government should have had the systems in place to ensure that it was alerted immediately about impeaching information.”
- Prosecutors’ assessments of favorability, part 1: When a prosecutor is confronted with facially exculpatory evidence (in this case a report that concluded a key witness had made false statements) she cannot suppress it simply because she can explain it away (in this case the prosecutor apparently disagreed with the report’s conclusions that the witness had made false statements).
- Prosecutors’ assessments of favorability, part 2: “The defense perspective controls” the determination of whether evidence is favorable or not for Brady purposes, the question is whether the information is “of a kind that would suggest to any prosecutor that the defense would want to know about it because it helps the defense.”
- Materiality: Impeachment evidence, showing a key witness’s track record for untruthfulness and willingness to make false reports in a context similar to the case at hand, which could provide fodder for additional questions on cross-examination, is material for Brady purposes.
- Prosecutors’ assessments of materiality: “The materiality assessment this court conducts on appellate review is necessarily different from the materiality assessment the government can make pretrial when assessing its Brady obligations, and we reiterate that prior to trial, the government must disclose information that is ‘arguably’ material.”
The Facts: The defendants were convicted of aggravated assault and
assault on a law enforcement officer in connection with an incident at the D.C.
Jail in which a group of men attacked a fellow inmate and a corrections
officer, Sergeant White. The victims
could not identify Morton or Vaughn, but multiple security cameras had captured
footage of the incident. While the
recordings were low quality, two other corrections officers testified that they
could identify Morton and Vaughn from the footage. Unbeknownst to the defendants, one of the
witnesses, Officer Childs, had a significant credibility issue.
Six months before the attack on Sergeant White, Officer
Childs had filed a report accusing a different inmate of assault, thereby
justifying Childs’ use of a chemical agent against the inmate. Childs’ claim was investigated by the
Department of Corrections (DOC) Office of Internal Affairs (OIA). The DOC OIA final report determined that
video footage of Childs’ use of the chemical agent did not show the alleged
inmate assault. The final report
resulted in Childs’ demotion from Lieutenant to Sergeant.
The OIA Officer who wrote the final report on Childs also
assisted in the investigation of the Sergeant White assault. That officer stated in a post-trial affidavit
that he informed the United States Attorney’s Office, two months before Vaughn
and Morton’s trial, about the OIA report and Childs’ demotion.
The prosecution, however, did not disclose the
information from the OIA Officer or the report before the trial. Instead, only one week before trial, the
government filed a motion to preclude the defense from questioning Childs about
the misconduct in the OIA report. In the
motion the government provided a “summary” of the report that gave no
indication that the OIA had investigated a potentially false allegation of an
inmate assault by Childs and had in fact determined the allegation was false,
nor did the summary reveal Childs’ resulting demotion. The summary instead focused on a portion of
the report finding that Childs’ properly used the chemical agent (the
prosecutor even quoted a portion of Childs’ incident report that was
discredited in the final OIA report to claim that the inmate had been acting aggressively). The government did disclose that the final
report concluded that Childs’ had inaccurately stated that the inmate was
unrestrained, but portrayed the report’s conclusion with skepticism because
Childs had only “suggested” the inmate was unrestrained.
The government did not provide the trial judge with a
full copy of the report; instead – ex parte – the government provided what it
said was the final report but was only the first five pages of the ten page
report, leaving out the findings adverse to Childs, which began on the sixth
page. When the trial judge asked if he
had the complete report because what he had stopped at page 5, the trial
prosecutors did not alert the judge that his copy was incomplete and one of the
prosecutors said “‘yeah, mine is five pages long[.]’” The trial court denied defense counsel’s
requests for disclosure of the actual report rather than the government’s
summary.
Based on the government’s objections, the defense was
limited to asking Childs only if he had submitted a false report and if he had
been disciplined for submitting a false report.
Childs answered “no” to both questions and the defense had no means of
challenging these responses. The
defendants were convicted.
After the trial, the trial court ordered disclosure of
the actual report in response to a defense motion for a new trial. The trial court, however, denied the motion
for a new trial, concluding that there had never been a finding that Childs had
made a false report, that Childs’ demotion was informal, and that therefore the
information from the DOC OIA would not impugn Childs’ credibility.
Holdings:
Favorability: The OIA determination of false reporting “was clearly
impeaching, and was the sort of information in which any competent defense
lawyer would have been intensely interested.” The favorability of the report “does not turn on its
ultimate truth or the government’s assessments thereof. The government could not withhold this
information because it did not trust [the report’s] conclusions … or because it
did believe its witness, Officer Childs, who professed innocence of false
reporting …”
Suppression: The motion in limine the government filed one week before
trial seeking to foreclose cross-examination of Officer Childs about the
chemical spray incident was not a Brady
disclosure. The government did not cite Brady or indicate that the information
was favorable. “Brady does not authorize the government to engage in a game of
hide-and-seek, or require the defense to scavenge for hints of undisclosed Brady material.”
The motion was not timely. The government knew about the OIA report two
months before trial, but disclosed nothing about it until a week before trial,
and then withheld the actual report and other important information until after
the trial. The goal of Brady “is not achieved by last-minute
information dumps. Rather, where
disclosure of Brady is concerned,
there is no time for strategic delay and ‘as soon as practicable’ should be the
approach.” Furthermore, “Brady disclosures are required well
before the scheduled trial date…. Only
in this way can we ensure defense counsel has an opportunity to investigate the
facts of the case and, with the help of the defendant, craft an appropriate
defense.”
In fact, the government had an obligation to disclose before it learned about the report: it
had an obligation to disclose that Childs was under investigation by the DOC
OIA. Even if it had been a Brady disclosure, the belatedness of the
motion is not excused by the fact that the government did not learn of the
investigation until a few months before trial.
The government has a duty to search branches of government closely
aligned with the prosecution and “[f]or such an important witness … the
government should have had the systems in place to ensure that it was alerted
immediately about impeaching information.”
Furthermore, the motion was neither accurate nor
complete. “Even if it is theoretically
possible for the government to fulfill its disclosure obligations under Brady by means of summaries of
preexisting documents, such summaries must be sufficiently specific and complete….
[W]e consider the required level of detail from the perspective of the defense;
where source documents exist, the government must summarize … them with every
detail that might have been relevant to defense counsel’s preparation as
counsel viewed the case. This may be
challenging for the government, which presumably is not privy to defense
counsel’s thoughts and theories pretrial.
Accordingly, the government withholds source documents at its
peril.” The motion here “did not come
close to satisfying our standards ….”
The motion presented as true that which the OIA had determined false –
Childs’ claim that the inmate acted aggressively – and used the false story as a
backdrop to portray the investigation as merely an inquiry into excessive force
and sloppy report-writing. It also
omitted the disciplinary consequences.
“In the absence of a timely, accurate, complete, or
usable disclosure,” the Court concluded the favorable information was
suppressed.
Materiality: The information “was powerfully impeaching,” it
established Childs’ track record of untruthfulness and “established that he was
willing to make false reports implicating inmates in assaults on law enforcement
agents – the precise context of this case.”
“[A]t the very least, defense counsel would have had a firm foundation
to press for much more leeway in cross-examining Officer Childs.” The Court could envision “a series of
permissible, pointed questions by defense counsel that would have seriously
damaged Officer Childs’s credibility in the eyes of the jury – whether he
answered them truthfully or tried to avoid giving a truthful answer.”
Morton’s convictions reversed and remanded for new
trial. Vaughn’s convictions were not
reversed on Brady grounds because his
post-trial litigation position – in the form of an affidavit – admitted that he
was the person identified by Childs on the video.
Of Note:
- The court also reversed Mr. Vaughan's aggravated assault conviction on the ground that the trial court's jury instruction on aiding and abetting was plainly erroneous because it “inappropriately combined the standards for aggravated assault and felony assault, instructing the jury that it could find the defendant guilty of aggravated assault if it found the defendant had the lesser mens rea for felony assault.” Vaughn’s participation was very limited, so there is at least a reasonable probability that the jury relied on the lesser mens rea to convict him of aiding and abetting the aggravated assault. JA
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