The Brady Rule – what kind of people are prosecutors anyway?

By on Sep 2, 2019

The Brady Rule (or Rules) is the result of a U.S. Supreme Court ruling in the case of Brady v. Maryland (373 U.S. 83) in 1963. It held that the prosecution must disclose all exculpatory evidence to the defense counsel in criminal proceedings.

SO, and this seems so obvious, if the prosecution has come into evidence that proves the defendant NOT GUILTY and they withhold that evidence from the defense and continue with the prosecution there would seem a much bigger problem than withholding evidence. WHAT type of morally bankrupt, characterless schmucks continue to prosecute innocent men or women? Something has gone drastically wrong somewhere with not only our DOJ but even more so apparently with the type of people they hire. Just take a look at this motion by Syndney Powll in the FLynn case –


United States v. FLYNN

Motion to Compel Document #109

District Court, District of Columbia

7Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence.”). But the government learned nothing from the excoriating action this Court took in Stevens. In the related cases of Kottand Kohring, shortly thereafter, theprosecutorstried again to avoid any consequences for their egregious misconduct—claiming the same violations they committed in Stevenswere not “material” to those defendants. The Ninth Circuit vehemently disagreed.Judge Betty Fletcher wrote a blistering concurring decision. She called out the government’s “reckless disregard” for the rights of the defendantsandwould have dismissed the indictment because the prosecutors’ “unrepentant attitude indicates that no lesser remedial action would be effective.” Kohring, 637 F.3d at913. Judge Fletcher wrote that only the extreme remedy of dismissal would “impress upon the government the reprehensible nature of its acts and omissions.” Id. at 914.Yet, the government’s conduct has only worsened. Itsabuse of power has spread and deepened. The recent reports of the Inspector General demonstrate thatconstitutional, ethical,and legal violations infectedthe FBI, the Department of Justice and perhaps other agencies.8Even if the government deems the evidence it is withholding to beinculpatory, it is imperative that new counsel for Mr. Flynn be able to see the allegedly inculpatory information to evaluate the government’s allegations against him andto determine how to proceed.98SeeU.S. Dept. of Justice,Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018), Flynn may also have other defenses that prior counsel did not explore. Although it is obvious that the government’s discretion to pursue a prosecution is broad, it is not without constraint. United Statesv. Armstrong, 517 U.S. 456, 464 (1996). It has often been repeated that “it is unconstitutional to administer the law with an evil eye and an unequal hand so as practically to make unjust and illegal discrimination between persons in similar circumstances.” United Statesv. Napper, 574 F.Supp.1521,1523(D.D.C. 1983) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)). Selective prosecution requires that a defendant show (1) he was Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 7 of 19

10539 F. Supp. 2d 259, 262 (D.D.C. 2008) (citing Evans v. Williams, 206 F.3d 1292, 1294-95 (D.C. Cir. 2000)). Indeed, this Court utilized a contempt order against the government to compel it to produce documents responsive to the Court’s earlier order. See In re Contempt Finding in United States v. Stevens, 744 F. Supp. 2d 253 (D.D.C. 2010) (aff’d by United States v. Stevens, 663 F.3d 1270 (D.C. Cir. 2011)).The “moving party for a civil contempt finding. . . bears the initial burden of demonstrating by clear and convincing evidence that: (1) there was a clear and unambiguous court order in place; (2) that order required certain conduct by [the nonmoving party]; and (3) [the nonmoving party]failed to comply with that order.” United States v. Latney’s Funeral Home, Inc., 41 F. Supp. 3d 24, 29-30 (D.D.C. 2014). “In the context of civil contempt, the clear and convincing standard requires a quantum of proof adequate to demonstrate a reasonable certainty that a violation occurred.” Phillips v. Mabus, 894 F. Supp. 2d 71, 91 (D.D.C. 2012).“Once the court determines that the movant has made the above three-part showing, the burden shifts to the [non-moving party] to justify the noncompliance.” Int’l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F. Supp. 2d 35, 38 (D.D.C. 2010). The alleged contemnor must justify its noncompliance “categorically and in detail.” 40. The court “need not find that [the] failure to comply with the orders was willful or intentional because the party’s intent is irrelevant when making a civil contempt determination.” Latney’s Funeral Home, Inc., 41 F. Supp. 3d at 30 (citing SEC v. Bilzerian, 112 F. Supp. 2d12, 16 (D.D.C. 2000)).This Court’s Order could not be moreclear. It specifically required the government to: “produce to defendant in a timely manner any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment. This government responsibility Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 10 of 19

15Even though the investigation exoneratedMr. Lovinger of these charges a full month before Mr. Lovinger’s hearing, the government did not reveal to Mr. Lovinger’s attorneys that this investigation occurred.17Even worse, the declassified version of the NCIS left out a crucial “not”. It read that the investigation “did yield any classified or sensitive information,”18when the truth was the investigation “did notyield any classified or sensitive information.”19The declassified version omitted the word “not.”20Accordingly, the government must be compelled to produce the actual 302s, text messages, notes, and all actual documents the defense has requested—and we must see them unredacted. Summaries are not evidence. Thus, disclosure via a summary cannot satisfy Brady.21Even in ideal circumstances, summaries present unnecessary risks of mistake and“A review of the contents of S/LOVINGER’s NIPR and SIPR Joint Service Provider (JSP) accounts was conducted and did not reveal any potential CI concerns. *** An interview of former ONA contractor [redacted] ClIV, did not yield any information of concern. A review of the case by NCISHQ and NCISRA Washington, DC determined all logical investigative steps have been completed and the investigation could be closed. ONA was apprised of the status of the investigation. As this investigation has not disclosed indicators S/LOVINGER leaked sensitive information to members of the media and all logical investigative steps were completed, this case is now closed.” Naval Criminal Investigative Service, Records Management Division, Lovinger, Adam, added).20Id. at p. 2 (“[redacted] conducted a key word search of the hard drive maintained in S/LOVINGER’s USG-issued Dell “0ptiPlex 9020” computer tower, which did yield any classified or sensitive information.”)21“Evidence” need not be admissible to fall within Brady; it is enough that it “could lead to admissible evidence” or “be an effective tool in disciplining witnesses during cross-examination.” United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (collecting cases). Likewise, favorable evidence is not exempt from disclosure simply because it is in some way a “summary” of facts, e.g., contemporaneous notes of a witness interview. Rather, Bradyrequires the Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 15 of 19

16misrepresentation. They pose the same cognitive-bias problems that arise whenever the government is afforded discretion over what it discloses to defendants. In fact, they compound the problem in several ways. The prosecutor must ask himselfnot only whichitems to disclose, but which aspects of those items to describe—adding anotherfilter between favorable evidence and the defendantand amplifying the risk that favorable evidence will be suppressed. Written summaries require characterization of the evidencethat a prosecutor—even the most well-intentioned—has no business making. The prosecutor assumes the role not merely of compiler, but of editor.22Summaries license the prosecutor to put hisor herown spin on evidence.Even “[s]ubtleshifts in tone” can have a significant impact on how a document is interpreted. United States v. Omni Int’l Corp., 634 F. Supp. 1414, 1425 (D. Md. 1986). “Minor modifications today could be become significant alterations tomorrow, based on the judgment ofthe reviser.” Id. at 1426. As this Court noted in Stevens:“[t]he use of summaries is an opportunity for mischief and mistake.” Tr. of Mot. Hr’g 9, United States v. Stevens, No. 08-231 (D.D.C. Apr. 7, 2009) (dismissing indictment against former Senator Ted Stevens for Bradyviolations). Summaries present prosecutors with dangerous opportunities—and temptations—to selectively cull and frame the “favorable” evidence they choose to disclose.Accordingly, the government must be compelled to provide the actual documents, notes, 302s, and A-1 files the defense has requestedand any other actual documents, notes, emails, texts or other materials that are exculpatory or might lead to exculpatory evidence.government to give defendants the same raw material that prosecutors possess—whatever its form—rather than reprocessing that material into summariesprepared for the purpose of disclosure.22The insufficiency and myriad problems of using summaries is the subject of excellent briefing by Amicus in support of the Petition for Writ Of Certiorari in Brown v. United States, available at Case 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 16 of 19

17VIII. ConclusionSunlight is the best disinfectant, and no court can dojustice until it knows the truth. To restore any measure of trust and credibility in our law enforcement institutions, the government must be held to the highest standards. See, e.g., United States. v. Harvey, 791 F.3d 294, 300 (4th Cir. 1986) (citation omitted). “[C]oncerns for the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government”demand it. Id.For these reasons, Mr. Flynn requests that this Court(i)issue an order to show cause why the government should not be held in contemptbecause of their violation of this Court’s Standing Orderand their legal and ethical duties to produce exculpatory and impeachment evidence to the defense; (ii) thereafterfind the prosecutors in contempt of this Court’s Bradyorder;(iii) issue an order to them and to the Department of Justice to preserve all evidence, emails, notes, documents, texts, cell phones—including those of the Special Counsel team—and (iv) order the Departmentof Justiceto produce all evidence the defense requests in our accompanying Motion and any and all other Bradyinformation in the government’s possession.Dated: August 30, 2019Respectfully submitted,/s/ Sidney PowellSidney PowellMolly McCannSidney Powell, P.C. 2911 Turtle Creek Blvd., Suite 300Dallas, Texas 75219Tel: 214-707-1775sidney@federalappeals.comAdmitted Pro Hac Vicemolly@federalappeals.comCase 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 17 of 19

18Admitted Pro Hac Vice/s/ Jesse R. BinnallJesse R. BinnallLindsay R. McKassonHarvey & Binnall, PLLC717 King Street, Suite 300Alexandria, VA 22314Tel: (703) 888-1943Fax: (703) lmckasson@harveybinnall.comAdmitted Pro Hac ViceW. William HodesThe William Hodes Law Firm3658 Conservation TrailThe Villages, Florida 32162Tel: (352) 399-0531Fax: (352) 240-3489Admitted Pro Hac ViceCase 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 18 of 19

19CERTIFICATE OF SERVICEI hereby certify that on Friday, August 30, 2019, I filed acopyof the above and foregoing in the office of the Clerk via the CM/ECF system, which will provide notice to all counsel of record. Jessie K. Liu, U.S. Attorney for the District of ColumbiaBrandon L. Van Grack, Special Assistant U.S. AttorneyDeborah Curtis, Assistant U.S. AttorneyJocelyn Ballantine, Assistant U.S. Attorney555 4thStreet, NEWWashington, D.C. 20530/s/ Sidney PowellSidney Powell, P.C. 2911 Turtle Creek Blvd., Suite 300Dallas, Texas 75219Tel: 214-707-1775sidney@federalappeals.comAdmitted Pro Hac ViceCase 1:17-cr-00232-EGS Document 109 Filed 08/30/19 Page 19 of 19