Brady and Third Party Records / Databases (8/20/11)

In United States v. Gray, 648 F.3d 562 (7th Cir. 2011) (opinion here), Judge Posner rejects a defendant's argument that the Government had a Brady obligation to have a third party extract data from its databases that might potentially have helped the defendant. While the third party, EDS (a data service company), had the data in its databases, EDS would have had to create a program to extra the data and then run the program on its databases. Judge Posner held that Brady did not impose the obligation on the Government to extract the data from the third party that might be helpful to the defendant. He reasoned (several case citations and quotation marks omitted for readability):

If a prosecutor possesses exculpatory evidence that had it been disclosed to the defense might have induced a reasonable jury to acquit, failure to provide it to the defense would be a reversible error. Brady v. Maryland, 373 U.S. 83 (1963). The rule has been expanded to take in investigators and other members of the "prosecutorial team" broadly understood. Otherwise investigators assisting in a prosecution could conceal from the prosecutors exculpatory evidence that the investigation had revealed and then the evidence would never be revealed to the defense. But EDS was not a part of the prosecutorial team. It had been hired as we said to process and pay bills submitted to Indiana Medicaid. It was not a private detective agency hired by the state agency to assist state and federal prosecutors in prosecuting Medicaid fraud. Medicaid fraud investigators were part of the prosecutorial team, but EDS was not. Because it does the billing for Indiana Medicaid, the company has records that can be useful as evidence in fraud prosecutions. But the defense had the same access to those records as the prosecutors did, and so there was no suppression of evidence.

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The Mass Document Dump and the Prosecutors' Brady Obligations (2/11/11)

In United States v. Ohle, 2011 U.S. Dist. LEXIS 12581 (SD NY 2011), the defendants moved for a new trial, complaining that the prosecutors violated their Brady obligations. Prior to trial, the prosecutors turned over to the defendants a massive quantity of documents that the Government had obtained from Jenkins & Gilchrist (J&G). The format for the turn over of documents was a Concordance database, in which the documents were viewable and searchable. The prosecutors thought that all J&G documents were in the database. After trial, at the Fatico sentencing hearing, the prosecutors admitted that the turn over did not include approximately 110 boxes. The principal question presented was whether the 110 boxes contained Brady material that should have been disclosed contained Brady material that should have been disclosed, but a related question was whether a mass document disclosure without specifically identifying the Brady material was appropriate. The court, Jed Rakoff, rejected the claim, finding no Brady violation.

I address only the larger issue of the ground rules for the prosecutors' obligations when making mass document disclosures, often referred to as an open file policy. In large white collar cases, including large tax crimes cases (such as Ohle and the KPMG related criminal cases), the turnover of massive quantities of documents is common. The Court had an interesting discussion of the ground rules that apply. I quote (footnote omitted):
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Federal Prosecutors Feeling the Heat

Persons practicing in the White Collar Crime area, including the federal tax crime area, have viewed with great interest the recent mutiple missteps by federal prosecutors in major criminal prosecutions. In the tax area, we were treated to the KPMG prosecution where the Government forced KPMG to quit paying attorneys fees and suffered the dismissal of 13 defendants when the Judge called foul. It was bad enough that the Government had engaged in that sort of extortion, but worse when the prosecutors dissembled about it in trying to get the judge to avoid looking into the sordid conduct. Happenings of the same genre -- convict at any cost -- seem to keep surfacing. E.g., the whole Senator Stevens prosecution involving the prosecutors' Brady disclosure violations among other footfaults. Today's Wall Street Journal has an interesting article here on the abuses in the disclosure area and how to mitigate them.