It is suggested that most lawyers and perhaps judges should subscribe to the Annual Review of Criminal Procedure contained in the Georgetown Law Journal. This includes every case decided by the Courts of Appeal each year. It details how said courts have handled the Brady obligation. As well, the Library of Congress prepares an extraordinary treatise, available from the Superintendent of Documents entitled "The Constitution of the United States of America: Analysis and Interpretation." This contains every case since the founding of our nation, including the Brady obligation and its progeny. The experience of this author with Brady issues is explained somewhat in the book The Courtroom is My Theater (Post Hill Press 2018). See also www.JayGoldberg.com.

What prompts this article is the absolutely brilliant decision by District Judge Allison J. Nathan (U.S.D.J., S.D.N.Y.) in the case of United States v. Ali Sadr Hashemi Nejad, 18-cr-224 (AJN), decided June 9, 2020, and the judge's earlier decision in United States v. Pizarro, 17-cr-151 (AJN). These cases demonstrate quite clearly that the judge, in our opinion, "gets it" with respect to the obligation imposed on the government by Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.

The court did not rely on the government's sometimes, lame representation that it is "aware" of its obligation. This has characterized the sad approach by a number of judges who, in our opinion, seem somewhat oblivious to the fact that as Justice William Brennan wrote: the trial of a criminal case is likened to combat (see the respected writer Joel Cohen's article in the New York Law Journal on July 9, 2020).

Much to my dismay, Cohen seems somewhat pleased that some judges have standing rules, and is satisfied that the government's representation is enough, and this has been so for years.

The compelling decisions and orders of District Judge Nathan make it crystal clear that there cannot be adherence to the rule of the Brady obligation simply by the judge taking the word of the government with respect to the government's Brady obligation.

In a luncheon meeting with then Chief Judge Thomas P. Griesa, who served as Chief Judge of the U.S. District Court for the Southern District of New York from 1993 to 2000, and senior judge from 2000 to 2017, he commented that we were fortunate to live during the "golden age" of interesting trial work, this being 1970-1990. We thank him, but the period did not reflect "happy times," because many judges did not engage in searching inquiries with respect to Brady.

The opinion and order in United States v. Flynn, 17-cr-232, decided June 24, 2020, can be read for other principles leading to the order directed to Judge Sullivan (U.S.D.J., D. DC). According to J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit, New York Times, June 30, 2020, there is a remark in the court's opinion that can be read that the government withheld "exculpatory evidence" from Flynn

We choose not to discuss the opinions and orders of District Judge Nathan, for it is must reading, absolutely critical reading for those concerned with the obligation of prosecutors and how to require adherence to the rule and obligation of Brady.

Generally, those released after a conviction has been reversed for serious Brady violations, are people of color (innocenceproject.org). New York's release of wrongly convicted defendants has reportedly cost state taxpayers over $50 million due to violations of Brady. How terribly sad this is.

Our press in every case was so common that the respected criminal defense attorney, Gerald L. Shargel, pinned the moniker on me—whether true or not—as "Mr. Brady." For in every case, I had, where appropriate, argued that the court must monitor the government's behavior. I hardly ever succeeded in getting past the government's representation, except for one ground-breaking option by U.S. District Judge Marvin E. Frankel in United States v. Agone, 203 F.Supp. 1258 (S.D.N.Y. 1969), where he, like Judge Nathan, issued a sweeping discovery order, with monitoring being the order of the day. This so apparently outraged the U.S. Attorney that he came to the courtroom and spread on the record his view that the court had overstepped its bounds in questioning the integrity of the U.S. Attorney's Office. Assistants can be counted on without further inquiry to satisfy the obligations imposed by Brady. Judge Frankel adhered to his opinion and order, much to the apparent dismay of the government.

In a Robing Room Conference, with the respected District Judge Edmund Palmieri (U.S.D.J., S.D.N.Y.), following the opinion and order of Judge Frankel, he told me: I consider your Brady motion to be frivolous, you have to understand how well regarded Assistants are in the Southern District. They are interested in a verdict that reflects the truth. I will not adhere to Judge Frankel's opinion and order in Agone.

Despite the hostile attitude of district court judges, we pressed on with multiple motions and writings. See "Brady and the Unfulfilled Promise of an Even Playing Field," New York Law Journal (Dec. 13, 2013); "Defendants' 'Informational Disadvantage' Continues in Federal Criminal Cases," New York Law Journal (August 20, 2012). We wrote articles published in the New York State Association of Criminal Defense Lawyers and The Champion, a publication of the National Association of Criminal Defense lawyers.

For some time, as long as a half century ago in May 1963, courts promised that the government and defense would, as far as possible, engage on a level playing field.

With it all, on no lesser authority than our scholarly Second Court of Appeals, the court as far back as 2005 recognized there is an informational gap that exists between the defense and the prosecution. See United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005); United States v. Jackson, 345 F.3d 59 (2d Cir. 2003). But these opinions and orders were not reflective of how necessary it was for a court to monitor the government's behavior.

We are fortunate to have at this time extraordinarily able members of the Court of Appeals and the district court benches. Action can be taken, and must be taken, lest our criminal justice system be thought by the public to be fraught with miscarriages of justice.

Certainly the criminal defense bar, with the passage of time since the holding in Brady should be able to look back (and of course this includes district court judges) on what has occurred and conclude that the promises made as to equality between counsel in terms of information and adherence to Brady and its progeny reflect the true principles behind this cases.

In the U.S. District Court for the District of Massachusetts, the court commissioned a detailed study of problems presented by what appeared to be endemic violations of the Brady rule. It perceived the violations to be such miscarriages of justice that there was a need for courts to remedy the apparent violations It articulated what should be done to remedy the failings that had occurred and would likely continue to occur in the absence of a standing rule of Court. See the report of the Boston Bar Association Task Force entitled "Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System (http://www.bostonbar.org/prs/reports/BBA-Getting_It_Right).

For a then comprehensive review of how district court judges are to act to ensure that Brady and its progeny have been adhered to, see "Brady v. Maryland Material in the United States District Courts: Rules, Orders and Policies. Hooper and Thorpe, "Brady v. Maryland Material in the United States District Courts: Rules Orders, and Policies—Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States," Federal Judicial Center (http://www.fjc.gov/public/pdf.nsf/lookup/bradyma2.pdf/$file/bradyma2.pdf).

It is time enough to face reality. It is time for all district court judges to not simply count on the government to adhere to its obligations in representations made to courts that it will adhere to its obligations.

The approach taken by District Judge Nathan should be the "order of the day" to ensure that justice is done in a criminal case.

 

Jay Goldberg was acting U.S. Attorney for the Northwest District of Indiana, Special Attorney and Counselor to the U.S. Department of Justice, and assistant district attorney New York County. This article reflects his experiences. Alex S. Huot is an associate attorney at the Law Offices of Bobbi C. Sternheim.