Last week, the North Carolina Sheriff’s Association released a 31-page Report on Law Enforcement Professionalism recommending numerous law enforcement reforms. The report, created by a working group formed after the killing of George Floyd and the public outcry for policing reform that followed, is part of “an effort to create a law enforcement profession that will not tolerate racism and excessive force by law enforcement, and that will hold North Carolina law enforcement to a high standard.” (Report at 5.) Changes are recommended for officer certification and de-certification, training, agency accreditation, use of force policy and data collection, and recruiting and retention. The document, which, among other things, contains the most comprehensive description of the training and education requirements for law enforcement officers I’ve ever seen, is worth reading in its entirety. This post focuses only on one aspect of the report: recommendations that would enable hiring authorities, certifying commissions and state prosecutors to learn of misconduct by officers, including untruthfulness, that would impair the officer’s credibility as a witness in criminal prosecutions and which must be disclosed to the defense.
Tag Archives: brady
My colleagues and I usually spend the waning weeks of May slogging through months of appellate opinions, determining which cases merit discussion at upcoming summer conferences. This year, of course, there are no live summer conferences.
Yet we are still slogging. We are delivering a virtual criminal case update for district court judges this week and will be offering similar on-line instruction to other court officials and advocates in the weeks to come.
In the seven months since the fall conferences, our appellate courts have addressed a number of significant — and, in some instances, novel — issues related to the investigation and prosecution of impaired driving offenses. Even though you can find summaries of all recent appellate decisions here on the blog, I thought readers might appreciate a post aggregating recent DWI-specific holdings.
Destruction of evidence. When the State destroys or fails to preserve material, exculpatory evidence, it violates a defendant’s right to due process. State v. Taylor, 362 N.C. 514 (2008); see also NC Defender Manual Vol. 1, Pretrial (2d ed. 2013), at 7. Thus, when the State destroyed a poster displayed in the district attorney’s office that displayed two pictures of the defendant, the first with the caption “Before he sued the D.A.’s office,” and the second, depicting the defendant with injuries and captioned, “After he sued the D.A.’s office,” dismissal of assault charges based on a due process violation was proper. State v. Williams, 362 N.C. 628 (2008). When, on the other hand, the State destroys or fails to preserve evidence that is only potentially useful to the defendant, the defendant must demonstrate that the State acted in bad faith to establish a constitutional violation. Taylor, 362 N.C. at 525. I speculated here about how this two-part analysis might apply to the destruction of dash-cam video in an impaired driving case. The court in State v. Taylor, ___, N.C. App. ___, 836 S.E.2d 658 (2019) (same last name, entirely different case), addressed that issue head-on.
State v. Taylor, ___, N.C. App. ___, 836 S.E.2d 658 (2019). The defendant in Taylor was charged with misdemeanor impaired driving in November 2016, and was indicted for habitual impaired driving in December 2017. The defendant’s attorney requested disclosure of video footage from the vehicle of the highway patrol trooper who stopped the defendant. The State informed the attorney that the footage had been purged from the highway patrol’s system. Video of such stops is maintained only for 90 days absent a specific request from the district attorney’s office. The defendant thereafter moved to dismiss the charges, and the trial court granted the motion, concluding that the footage was material and exculpatory and that the State’s failure to provide it flagrantly violated the defendant’s constitutional rights and caused irreparable prejudice to the defense. The State appealed, and the court of appeals, over a dissent, vacated the trial court’s order and remanded for a determination of bad faith. The appellate court reasoned that the dash camera footage was only potentially useful to the defendant since there was no record of what it may have shown. Thus, the defendant was required to establish bad faith on the part of the State to show a constitutional violation. A dissenting judge would have reversed the trial court’s order on the basis that the evidence presented could not support a finding of bad faith. The dissent noted that the defendant cross-examined the trooper, and the trooper’s testimony tended to show that he simply misunderstood the patrol’s video preservation policy.
State v. Hoque, ___ N.C. App. ___, 837 S.E.2d 464 (2020). The defendant in Hoque moved to suppress evidence of the withdrawal of his blood pursuant to a search warrant based in part on the officers’ failure to record the event on their body-worn cameras as required by agency policy. The trial court denied the motion and the defendant appealed, arguing that the failure to record the encounter pursuant to departmental policy denied him due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The court of appeals rejected the defendant’s argument on two grounds. First, the court held that there was no Brady violation because the State did not fail to disclose the body-camera video. The evidence was not suppressed; it never existed. Second, the court concluded that the defendant could not show that video footage of the blood draw would have been favorable to him. Instead, it may have corroborated the officers’ testimony. In addition, the court noted that the violation of departmental policy did not on these facts amount to a denial of defendant’s due process rights.
Use of force to withdraw blood. An officer who has (1) probable cause to believe a person has committed an offense involving impaired driving, (2) a clear indication that the blood sample will provide evidence of the defendant’s impairment, and (3) either a search warrant or exigent circumstances, may compel a person to submit to a forced extraction of blood. Schmerber v. California, 384 U.S. 757 (1966). To satisfy the Fourth Amendment, the forced extraction itself must be performed in a reasonable manner. See Schmerber, 384 U.S. at 771; see also Graham v. Connor, 490 U.S. 386 (1989) (claims that a law enforcement officer has used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment’s reasonableness standard). Schmerber determined that the extraction of the defendant’s blood “by a physician in a hospital environment according to accepted medical practices,” was a reasonable search. Id. at 771. But because the petitioner in Schmerber did not forcibly resist the blood draw, the case did not address the degree of force that may be used to obtain a blood sample.
And until this year, North Carolina’s appellate courts likewise had not addressed the extent of the force that may be utilized in association with a lawfully compelled blood draw. That changed in State v. Hoque, ___ N.C. App. ___, 837 S.E.2d 464 (2020).
State v. Hoque, ___ N.C. App. ___, 837 S.E.2d 464 (2020). The defendant in Hoque actively resisted officers’ attempts to gather evidence of impaired driving, beginning with his refusal to provide a roadside breath test. After he was arrested and advised of his implied consent rights, he refused to sign the rights form. He then refused to blow into the Intoximeter. A search warrant for the withdrawal of defendant’s blood was issued, and he was taken to a hospital emergency room for that procedure. There, the defendant told a hospital nurse that she did not have permission to take his blood. Hospital staff told the arresting officer that the defendant would need to be held down for the blood draw. Two officers handcuffed the defendant and put him on his stomach. Two nurses helped the two officers hold the defendant down, and his blood was withdrawn. The defendant moved to suppress the results of the blood test on the basis that his blood was drawn by excessive and unreasonable force. The trial court denied the motion, and the defendant appealed. The court of appeals found no error.
The trial court relied on United States v. Bullock, 71 F.3d 171 (5th Cir. 1995) in evaluating whether the State used excessive force. In Bullock, the FBI obtained a search warrant to obtain samples of the defendant’s blood and hair for DNA and other analysis. The defendant refused to comply, and a seven-member team subdued him and obtained the samples. The defendant was cuffed and shackled between two cots. A towel was placed on his face because he was spitting on agents. A nurse took blood from his hand and plucked 20 hair samples from his scalp. The Bullock court concluded that the use of force was caused by the defendant’s refusal to comply with a lawful warrant and was reasonable. The court explained that a defendant cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.
The court of appeals in Hoque noted that the officers had a valid warrant and that the defendant’s blood was drawn by medical personnel in a hospital – methodology deemed reasonable in Schmerber. As for the use of force, the Hoque court was persuaded by the reasoning in Bullock and concluded that the use of force was caused by the defendant’s refusal to comply with a lawful warrant and was reasonable.
Court orders for medical records in DWI cases. I wrote about this issue in detail in January so I’ll keep it brief here. G.S. 8-53 provides that a resident or presiding judge may at or prior to trial compel disclosure of confidential medical information “if in his opinion disclosure is necessary to a proper administration of justice.” Another statute, G.S. 90-21.20B, requires a health care provider to disclose medical information related to a person involved in a vehicle crash as specified in a search warrant or an order issued by a judicial official. The court of appeals in State v. Scott, __ N.C. App. ___, 838 S.E.2d 676 (Jan. 21, 2020), determined that the district court failed to satisfy either provision in ordering that medical records be disclosed and samples of defendant’s blood obtained by a hospital be provided.
State v. Scott, __ N.C. App. ___, 838 S.E.2d 676 (Jan. 21, 2020). The defendant in Scott was involved in a fatal crash in Elon. He was speeding when he crashed into a car turning left across his lane of travel. The driver of the other car was pronounced dead at the scene. The defendant was “in and out of consciousness” after the crash and was transported by ambulance to a Greensboro hospital.
An officer spoke to the defendant later in the day that the accident occurred. He did not detect signs that the defendant was impaired. In his accident report, he determined that the other vehicle was in the defendant’s travel lane at the time of the crash. Five days after the crash, an assistant district attorney petitioned a district court judge for an order directing the hospital to turn over the defendant’s medical records and any blood it had withdrawn from the defendant. The hospital turned over three vials of defendant’s blood, which were analyzed by the State Crime Lab, revealing a blood alcohol concentration (BAC) of .22. The defendant was subsequently indicted for second degree murder.
The defendant moved to suppress the BAC evidence on the basis that it was seized in violation of the Fourth Amendment. The trial court denied the motion, and the defendant was convicted at trial of second degree murder. He appealed, arguing that the trial court erred by denying his motion to suppress.
The court of appeals determined that the district court improperly ordered that the medical records be disclosed and the blood be provided. The district court’s order was based on nothing more than a bare allegation that a fatality had occurred. The State did not submit an affidavit or other evidence demonstrating reasonable suspicion that a crime had been committed and that the records and evidence sought were likely to bear on the investigation of that crime.
The court further determined that the superior court erred in denying the defendant’s motion to suppress. The district court’s order did not comport with G.S. 8-53 and the disclosure of the evidence was not proper under G.S. 90-21.20B(a1), which requires a valid court order or search warrant.
There was a dissent in Scott. Though the majority found error, they found it was not prejudicial. A dissenting judge agreed that the order for medical records was improper, but thought the error was prejudicial. Thus, the state supreme court will have an opportunity to review these issues.
Other impaired driving cases also raise interesting issues.
State v. Nazzal, __ N.C. App. ___, ___ S.E.2d ___ (March 3, 2020). The court of appeals in State v. Nazzal held that the State presented insufficient evidence of impairment in an impaired driving prosecution arising from a fatal crash. Applying State v. Eldred, 259 N.C. App. 345 (2018) (discussed here), the court concluded that evidence regarding the nature of the crash, the defendant’s flight from the scene, the defendant’s gross understatement of the collision’s severity, and a trooper’s opinion based on his passive observation of the defendant five hours after the crash did not provide substantial evidence that the defendant was impaired at the time of the crash.
State v. Diaz-Tomas, __ N.C. App. ___, ___ S.E.2d ___ (April 21, 2020), temp. stay granted, ___ N.C. ___, 840 S.E.2d 221 (April 21, 2020). The holding of this case is all about procedure, but the issues that led to those procedural questions are pure motor-vehicle. The defendant failed to appear on impaired driving charges. An order was issued for his arrest, and his driving privileges were revoked. The State dismissed the charges with leave to reinstate. Nearly four years after the initial charges, the defendant asked that the charges be reinstated. The State refused to place the charges on the calendar unless the defendant pled guilty and waived his right to appeal. The defendant attempted to obtain an order directing the reinstatement of charges. The court of appeals did not reach the merits of whether the State can refuse to reinstate charges given the requirement in G.S. 20-24.1 that a defendant must be afforded an opportunity for a trial or hearing within a reasonable time of the defendant’s appearance. The supreme court will review the case, so stay tuned to see if it addresses that issue.
Hope to see you soon. I am used to seeing many of you in person this time of year. I miss you all. I hope that we can connect virtually to talk about these cases and the other legal issues that are on your mind. In the meantime, take good care.
The School of Government and the Conference of District Attorneys co-sponsored Practical Skills for New Prosecutors last week. The five-day course includes 12 hours of Professionalism for New Attorneys requirements, so we spent a lot of time talking about professionalism and ethics. While every attorney should, of course, be familiar with the Rules of Professional Conduct, there are five ethics rules that should be at the top of every prosecutor’s list. Continue reading →
More than a trillion text messages are sent each year in the United States alone. Some of these messages are work-related communications from law enforcement officers to fellow officers, witnesses, prosecutors, and others. Which, if any, of these messages are discoverable? How should officers preserve discoverable messages? Must prosecutors ask for officers’ text messages before providing discovery to the defense? This post begins to address these questions. Continue reading →
The Supreme Court just decided Turner v. United States, rejecting the Brady claims of several defendants convicted of a brutal and highly publicized murder in Washington, D.C. Although the Court ruled in the prosecution’s favor, it also encouraged prosecutors to provide defendants with all evidence that may be helpful to the defense, even if that evidence does not cast material doubt on the prosecution’s case. Continue reading →
The North Carolina Court of Appeals decided its first breath-testing source code case yesterday. The court in State v. Marino affirmed the trial court’s determination that the defendant had no right to examine the source code for the Intoximeter EC IR II, the instrument used to analyze his breath alcohol concentration after he was arrested for impaired driving.
Jory Marino was pulled over by a Pinehurst police officer for speeding in March 2009. He subsequently was arrested for impaired driving and submitted to a breath test on the Intoxilyzer EC/IR II at the Pinehurst Police Department. His first and second breath samples registered alcohol concentrations of .11 and .10, respectively.
According to Marino’s brief to the court of appeals, he pled not guilty in district court “but stipulated sufficient evidence to adjudicate guilt,” and was found guilty. Marino then immediately appealed to superior court for trial de novo. See G.S. 15A-1431(b). In superior court, Marino filed a motion seeking an order that the Intoximeter source code was material, relevant and necessary for his defense. The purpose of this latter motion apparently was to facilitate issuance of a subpoena ordering Intoximeters, Inc., a Missouri company, to produce the source code. The State opposed the motion. The trial court preliminarily ordered the State to provide the defendant with “‘all downloaded and non-downloaded data in its possession that was generated from [the] Intoximeter [used to analyze defendant’s breath.],’” and ultimately denied the defendant’s motion for an order finding the Intoximeter source code material.
The defendant was convicted at trial. The jury returned a special verdict finding the defendant guilty under both the appreciable impairment and per se impairment prongs of G.S. 20-138.1(a).
Defendant appealed, arguing that, among other errors, the trial court erred in denying his motion to examine the Intoximeter source code.
No error, said the court of appeals. The appellate court rejected Marino’s argument that he was entitled to the source code under Brady v. Maryland, 373 U.S. 83 (1963). The court reasoned that the defendant failed to show the source code to be favorable to his case or material to guilt or punishment. Instead, the court noted that the defendant sought to examine the source code “in the hopes that it will be exculpatory in nature or will lead to exculpatory material.” Given that the defendant failed to show discrepancies in the Intoximeter results, the court characterized the materiality of the source code as “speculative at best.” Moreover, given that the defendant was convicted under both prongs of impairment, he failed to show a reasonable possibility that having the source code would have affected the outcome of his case. The court also rejected the defendant’s argument that he had a Sixth Amendment right to examine the Intoximeter source code, declining the defendant’s invitation to so extend the Supreme Court’s confrontation clause jurisprudence.
The court of appeals then addressed a defendant’s right to discovery generally when a misdemeanor conviction is appealed for trial de novo in superior court. The court began by noting that, with the exception of Brady material, a defendant has no constitutional right to discovery in criminal cases. Instead, the discovery right is purely statutory. The discovery provisions of the Criminal Procedure Act apply only in cases within the original jurisdiction of the superior court. See G.S. 15A-901. Because original jurisdiction for misdemeanor criminal actions lies in district rather than superior court (subject to a few exceptions not relevant here), a defendant charged with driving while impaired or any other misdemeanor offense is not entitled to statutory discovery. The court rejected the defendant’s argument that his due process rights were violated by the provisions of G.S. 15A-901 that limit discovery to cases originating in superior court.
For its part, the State sought a ruling that the trial court exceeded its authority and erroneously granted discovery when it ordered the State to provide all data generated by the Intoximeter on which the defendant was tested. The court refused to so hold on the basis that the State “voluntarily complied” with the order.
Source Code Significance.
Marino makes clear that the Intoximeter source code is not material and exculpatory in every case in which a defendant is charged with impaired driving based on a breath-alcohol concentration of .08 or more. The court’s holding does not, however, foreclose a defendant from establishing that such source code is material and exculpatory and thus discoverable under Brady by making some additional showing. For example, a defendant who demonstrates otherwise unexplained discrepancies in the results of multiple breath tests or a discrepancy between blood and breath testing of the same individual near the same point in time, might be able to establish a constitutional right to the source code. Likewise, a defendant charged with impaired driving in a case in which she allegedly refused testing might, upon a foundational showing of inconsistent outcomes, be able to establish a right to the source code. Cf. In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525 (Minn. 2012) (discussed here).
Discovery in Misdemeanor Cases.
Defendants not entitled to statutory discovery (that is to say, defendants charged with misdemeanors in district court) frequently use the subpoena power in G.S. 15A-802 to obtain documentary evidence in advance of trial. Those subpoenas sometimes are issued to law enforcement agencies, seeking items like the videotaped recording of a traffic stop. Unlike the proprietary source code sought by Marino, which apparently was exclusively possessed by the third-party manufacturer, this is the type of information that, were the case a felony, would be discoverable.
The Marino court emphasized that defendants charged with misdemeanors are “not entitled to statutory discovery,” and have “no statutory right to pretrial discovery.” Yet application of G.S. 15A-802 in the manner mentioned above effectively affords a defendant discovery, albeit by a different name. Marino dodged the issue of whether a defendant might obtain otherwise undiscoverable information through a different avenue, refusing to hold that — or even analyze whether — the trial court erred by ordering the State to produce data from the Intoximeter on which the defendant was tested.
Since Marino doesn’t clarify the relationship between the subpoena power and the discovery rules, I’ll ask you practitioners to tell me how it works in the real world. Does the subpoena power effectively provide discovery in misdemeanor prosecutions?
I’ve had a whole bunch of phone calls lately raising the same basic issue: suppose that a prosecutor is aware that an officer has been dishonest or has engaged in other misconduct in the past. Must the prosecutor disclose the officer’s dishonesty or misconduct to the defendant in a pending case in which the officer participated?
The answer to the question is, sometimes. The officer’s prior dishonesty or misconduct is potential impeachment material in the pending case. If it reaches the level of material impeachment information, it must be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Whether the officer’s prior dishonesty or misconduct is material depends on a number of factors, including:
- How long ago the dishonesty or misconduct was. The more recent it was, the more likely that it is material.
- How serious the officer’s dishonesty or misconduct was. The more serious it was, the more likely that it is material.
- How conclusively the officer’s misconduct was established. The more certain it is that the officer engaged in misconduct, the more likely that the information is material. For example, a “substantiated” complaint that an officer planted evidence is more likely to be material than a complaint that could not be confirmed.
- Whether the officer’s dishonesty or misconduct arose in a fact pattern that is also present in the instant case. For example, if the officer falsified a search warrant application in a prior case, and also obtained a search warrant in the instant case, the information is more likely to be material.
- Whether the defendant in the current case plans to present a defense based on the officer’s misconduct or dishonesty. The more likely that the officer’s credibility will be a focus of the defense, the more likely the officer’s prior misconduct is to be material.
- Whether the officer’s role in the current case is central or peripheral. The more critical his or her role, the more likely that impeachment evidence concerning his or her prior misconduct is material.
- Perhaps, whether evidence of the misconduct is contained in personnel records vs. in less-private sources. Personnel records are subject to privacy protections that other sources of information are not.
In some instances, balancing the officer’s privacy interests against the defendant’s due process rights may require a judge to conduct an in camera examination of records regarding an officer’s prior misconduct.
Some relevant authorities from several jurisdictions are summarized below. Most of the cases concern the discovery issue, but some address the admissibility of evidence of an officer’s prior misconduct because that may bear on the discovery question. If there are useful cases on point in North Carolina, I’m not aware of them. (Readers, let me know if you think I’m missing important authorities.) Generally, I would advise a prosecutor to err on the side of caution in this area.
- Blumberg v. Garcia, 687 F.Supp.2d 1074 (C.D. Cal. 2010)
A gang member was convicted of attempted murder in connection with the shooting of a rival gang member. One of the state’s rebuttal witnesses was an officer who testified about the defendant’s involvement in a similar prior incident. At the time of the defendant’s trial, the officer had a sustained internal affairs complaint for lying, and was under investigation for planting evidence and falsifying reports. (The officer was subsequently fired by his agency as a result of the investigation.) None of the foregoing information was disclosed to the defendant prior to trial. Although the state courts found that the withheld information was not material, a federal court ruled in habeas proceedings that the evidence was “impeachment and/or exculpatory evidence which the prosecution had a duty to disclose.”
- United States v. Beltran-Garcia, 2009 WL 2231667 (10th Cir. July 28, 2009) (unpublished)
The trial judge properly excluded evidence about an officer’s prior misconduct – misrepresentations about the extent of the consent he received during a search – under Rule 403. The incident was four years old, the instant case did not involve a similar fact pattern, and a mini-trial about the officer’s prior conduct would have been confusing. [Note: this case address the admissibility, rather than the discoverability, of misconduct evidence.]
- Michigan Ass’n of Police v. City of Pontiac, 2009 WL 794307 (Mich. Ct. App. March 26, 2009) (unpublished)
In a dispute over the firing of an officer for filing a false arrest report, the city argued that “retaining the grievant would be problematic because, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) . . . the prosecution would have to disclose the grievant’s false report and dishonesty in all future cases in which he was involved.” [Note: The court did not expressly agree or disagree with the city’s interpretation of Brady.]
- United States v. Hector, 2008 WL 2025069 (C.D. Cal. May 8, 2008) (unpublished)
An officer had “a sustained complaint . . . for submitting an arrest report that he knew contained inaccurate information,” apparently in a previous case. In the course of discussing the government’s errors in handling the report, the court described it as “crucial impeachment information.”
- United States v. Hayes, 376 F.Supp.2d 736 (E.D. Mich. 2005)
Federal felon-in-possession case. Officer who claimed that he saw the defendant throw down a gun during foot chase was the “centerpiece of the prosecution, and a fair determination of his credibility is of paramount importance to the question of guilt or innocence.” Thus, information regarding a previous federal prosecution of the officer for, inter alia, “falsify[ing] police reports” and covering up other officers’ misconduct, must be disclosed to the defendant, even though the prior prosecution of the officer was dismissed.
- United States v. Bravo, 808 F. Supp. 311 (S.D.N.Y. 1992)
New trial because of government’s failure to disclose any impeachment material about officers in a DEA unit that was under investigation “for allegedly beating up suspects, snorting cocaine, gambling, having sex with an informant and lying in court.” At the time of the defendant’s trial on drug charges, the unit either had been disbanded or was about to be so; the unit’s leader was either assigned to a desk job or was about to be so; and a judge in another case had expressed severe doubt about the veracity of certain officers’ testimony. Under those circumstances, a duty to disclose arose notwithstanding the lack of a formal finding of misconduct.
- Cal. Evid. Code § 1045
When a defendant seeks “records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which [a] peace officer . . . participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties,” and makes a sufficient threshold showing, the court should conduct an in camera review of the records, and should withhold, inter alia, complaints that are more than five years old and records the disclosure of which offers “little or no practical benefit.” (However, older records may be available if they are material under Brady, according to City of Los Angeles v. Superior Court, 52 P.3d 129 (Cal. 2002).)
Everyone knows that under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor must disclose material exculpatory or mitigating evidence to the defense. But does Brady apply only prior to trial, or does the obligation continue after a defendant has been convicted? That’s one of the questions raised by this Washington Post article, which reports that federal Department of Justice officials became concerned about certain practices in the FBI’s forensic laboratory and conducted an investigation, but that while many prosecutors “made swift and full disclosures” of problems documented by the investigators, “many others did so incompletely, years late or not at all.”
The United States Supreme Court recently held Brady inapplicable in the post-conviction setting. District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (U.S. 2009) (holding that the Ninth Circuit “went too far” in applying Brady to post-conviction proceedings, because after a defendant is convicted at a fair trial, he has fewer procedural rights than a defendant who has not been convicted; the Court also stated that Brady is “the wrong framework” for post-conviction proceedings, though it acknowledged that defendants retain some due process rights even after conviction). See also Imbler v. Pachtman, 424 U.S. 409, 427 n. 25 (1976) (stating that “at trial” a prosecutor’s duty to disclose evidence comes from the Due Process Clause, while “after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction”).
Prior to Osborne, some lower courts had held that Brady did apply in post-conviction. See, e.g., Duckett v. State, 918 So.2d 224 (Fla. 2005) (Brady creates a “continuing duty throughout all proceedings,” including postconviction proceedings); Monroe v. Butler, 690 F.Supp. 521 (E.D.La. 1988) (“[N]othing in Brady or its progeny limits its doctrine of fact characterization to the pre-conviction context. Brady doctrinally stands for the notion that it is fundamentally unfair for the prosecution to withhold material, exculpatory evidence from the defendant and that the proceeding in which the unfairness occurred should be overturned so that the merit of the Brady facts can be considered. Clearly, such nondisclosure is as unfair where it prevents a defendant from taking full advantage of post-conviction relief as it is when it results in the forfeiture of the defendant’s right to a fair trial. The prosecutor’s duty to disclose material, exculpatory evidence continues through the period allowed by the State for post-conviction relief.”). See generally Fred C. Zacharias, The Role of Prosecutors in Serving Justice after Convictions, 58 Vand. L. Rev. 171 (2005) (characterizing the issue as unsettled).
Even though Osborne has settled the Brady issue, a prosecutor may be bound by the requirements of legal ethics to disclose exculpatory evidence obtained after conviction. Rule 3.8(g) of the ABA’s Model Rules of Professional Conduct provides that when a prosecutor “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” he or she must disclose the information to a court, and normally to the defendant as well. North Carolina’s Rule 3.8 doesn’t contain a specific provision about post-conviction disclosure of exculpatory evidence, but its general requirement that a prosecutor disclose “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense” is not limited to the pretrial stages of a case and might therefore apply. Other ethical rules may also come into play.
Finally, even in cases where there is no legal or ethical requirement of disclosure, a prosecutor may choose to provide potentially exculpatory evidence to a convicted defendant in the interest of justice. In other words, even when disclosure is not required, it is not forbidden.
Or, Seeking Dismissal Based on the State’s Destruction of Evidence
Unpublished court of appeals opinions occasionally assume the cache of bootleg recordings of live performances of the Grateful Dead. If you’ve got your hands on a good one, the real value is in sharing it with an appreciative audience. One such opinion making the rounds of late is State v. Absher, 2010 WL 3860501 (N.C. Ct. App. October 5, 2010). Absher affirmed the trial court’s dismissal with prejudice of charges against the defendant arising from an altercation with the Wilkes County Sheriff’s Department in which the defendant suffered a fractured skull and a serious brain injury. The trial court dismissed the charges after determining that notwithstanding numerous requests from the defendant’s attorney for a videotape of the defendant in the intake center at the time of the altercation, the sheriff’s department modified the video, preserving only certain images, and destroyed the original. The court of appeals agreed with the trial court that the state’s destruction of the videotape was a flagrant violation of the defendant’s constitutional rights that irreparably prejudiced his defense; thus, there was no remedy but to dismiss the prosecution. The appellate court relied upon State v. Williams, 362 N.C. 628 (2008), and rejected the premise that that Arizona v. Youngblood, 488 U.S. 51 (1988), controlled. In Youngblood, the United States Supreme Court held that the police’s failure to preserve potentially useful evidence constitutes a due process violation only if the defendant can show bad faith on the part of the police. Absher viewed Youngblood as applicable to “potentially useful” evidence, as distinguished from the “material exculpatory evidence” destroyed in Absher’s case. Thus, the court reasoned, there was no requirement that the defendant in Absher show bad faith on the part of the State.
What application might Absher have more broadly? Suppose a defendant charged with impaired driving requests to view the patrol car’s videotape of the traffic stop leading to defendant’s arrest. Sometime after this request but before trial, the videotape is inadvertently destroyed by the police. Is the defendant entitled to dismissal of the charges based on these facts alone? I don’t think so. First, I think Youngblood controls and there is no due process violation absent bad faith. Second, even if North Carolina courts require no showing of bad faith where the destroyed evidence is material and exculpatory versus merely “potentially useful,” I doubt the videotape of the traffic stop would, absent some additional showing, qualify as exculpatory. Finally, the absence of the videotape arguably does not irreparably prejudice the defense of the case as the defendant has other means of proving his innocence, including cross-examining the officer.
Let’s turn to the published cases for a more full explanation.
The United States Supreme Court first considered in California v. Trombetta, 467 U.S. 479 (1984), whether the Due Process Clause of the Fourteenth Amendment required the State to preserve potentially exculpatory evidence on behalf of defendants. The question in Trombetta was whether due process required law enforcement agencies to preserve breath samples of drivers suspected of driving while impaired in order for the results of a breath-analysis to be admitted into evidence. Trombetta ultimately concluded that the State’s destruction of breath samples did not run afoul of due process as any constitutional duty to preserve evidence was limited to evidence that had “an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. As the “chances [we]re extremely low that preserved samples would have been exculpatory” and defendants had alternative means of demonstrating their innocence, among them the right to cross-examine the law enforcement officer who administered the test, the court concluded that the evidence did not meet the standard of constitutional materiality. Id.
The court refined its analysis in Arizona v. Youngblood, 488 U.S. 51 (1988), a case in which the defendant sought reversal of his conviction on child molestation charges on the basis that the police’s failure to refrigerate the victim’s clothing and test semen samples shortly after they were collected deprived him of evidence that might have exonerated him. Recognizing that the Due Process Clause, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), makes the good or bad faith of the State irrelevant when the State fails to disclose material exculpatory evidence, the court held that the clause “requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57. Youngblood held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.” Id. at 58.
Over the ensuing decades, North Carolina’s appellate courts applied Youngblood in numerous contexts, finding no constitutional violation arising from the failure to preserve potentially exculpatory evidence where the defendant failed to demonstrate bad faith. See, e.g., State v. Hunt, 345 N.C. 720 (1997) (police’s failure in murder investigation to preserve items seized at defendant’s home did not violate due process where exculpatory value of evidence was speculative and nothing suggested police willfully destroyed evidence); State v. Mlo, 335 N.C. 353 (1994) (release of impounded vehicle without district attorney’s approval in violation of G.S. 15-11 did not warrant dismissal of murder charges where exculpatory value of comparing vehicle’s tires to tracks at the location where the body was discovered was speculative and there was no bad faith on part of police); State v. Thorne, 173 N.C. App. 393 (2005) (holding that defendant’s concession that videotape of bank robbery that led to his identification as a suspect was not lost or destroyed in bad faith obviates any due process claim); State v. Burnette, 158 N.C. App. 716 (2003) (intentional destruction of plastic bag containing drugs did not require dismissal of drug charges since “[w]ithout a showing of bad faith, the failure to preserve potentially exculpatory evidence does not constitute a denial of due process”); State v. Banks, 125 N.C. App. 681 (1997) (while police department’s destruction of the rape kit obtained from the victim “violated the rules concerning the safekeeping of potential evidence,” it did not violate the defendant’s due process rights as there was no reason to conclude the police believed the rape kit had any exculpatory value at the time it was destroyed).
Beginning with State v. Taylor, 362 N.C. 514 (2008), however, the North Carolina courts’ analysis underwent a subtle, yet significant, change. Taylor distinguished the State’s failure to preserve exculpatory evidence, a violation it considered appropriately analyzed pursuant to Brady, from the State’s failure to preserve potentially useful evidence, which was analyzed pursuant to Youngblood and required concomitant proof of bad faith. Taylor characterized this distinction as grounded in Youngblood. I disagree. Youngblood set the standard for determining when failure to preserve evidence amounts to a violation of due process (which it only does in cases involving bad faith), while Brady and progeny set the standard for determining when the State’s failure to disclose evidence violates due process. Youngblood’s adoption of a “potentially useful” standard merely recognizes the difficulties associated with “divining the import of materials whose contents are unknown and, very often, disputed.” Trombetta, supra. The standard does not, in my view, apply only to the failure to preserve potentially useful evidence. It also applies to the destruction of material exculpatory evidence.
The state supreme court applied this new standard in State v. Williams, 362 N.C. 628 (2008), a case decided the same day as Taylor. Williams affirmed the trial court’s dismissal of an assault charge based upon the State’s destruction of a poster displayed in the district attorney’s office. The poster, created by an assistant district attorney, featured two mug shots of the defendant, the first with the caption “Before he sued the D.A.’s office,” and the second picture, depicting the defendant with injuries, captioned “After he sued the D.A.’s office.” Williams made no mention of Youngblood, instead analyzing the case pursuant to Brady and holding that “the State’s destruction of material, favorable evidence to defendant, and its admission that the evidence could not be produced, warrant the conclusion that any trial commenced against defendant would not comport with our notions of due process,” thus amounting to a flagrant violation of the defendant’s constitutional rights. Id. at 639.
Williams obviously is a rare case in that the contents of the posters were known and not subject to any significant dispute. Most defendants seeking relief based on the destruction of evidence likely will be able to prove no more than its potential usefulness; thus requiring a demonstration of bad faith. And though both Williams and Absher depart from traditional Youngblood analysis, it isn’t hard to imagine the court finding bad faith in either case. So I suspect Absher’s cache will be as short-lived as those bootleg tapes in the era of YouTube.
The United States Supreme Court decided Connick v. Thompson yesterday. In a nutshell, the plaintiff, John Thompson, spent 18 years in prison as a result of a Brady violation. After he was exonerated, he sued the district attorney’s office, claiming that the office failed to train prosecutors adequately about their Brady obligations. A jury agreed and awarded him $14 million. The Supreme Court reversed, holding that district attorneys don’t have an obligation to train their employees about Brady unless they are aware of a pattern of Brady violations. The case is interesting in its own right, and it may have some bearing on the discovery reforms currently under consideration at the General Assembly.
From the Court’s syllabus, here are the facts:
[T]he Orleans Parish District Attorney’s Office concedes that, in prosecuting . . . Thompson for attempted armed robbery, prosecutors violated Brady . . . by failing to disclose a crime lab report. [The perpetrator left blood on one of the victims’ pants. The report stated that the blood was type B. Thompson is a different blood type, though the trial prosecutor may not have known that, at least initially.] Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney’s office under 42 U.S.C. § 1983, alleging, inter alia, that the Brady violation was caused by the office’s deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney’s office liable for failure to train and awarded Thompson damages.
The evidence at trial appears to have included the following.
- The office did no formal training regarding Brady.
- Prosecutors in the office were nonetheless generally aware of Brady.
- Office policy was to turn crime lab reports over to the defense.
- Prosecutors in the office disagreed after the fact about whether the crime lab report in this case was Brady material absent knowledge of Thompson’s blood type.
The jury determined that the office had no official policy endorsing Brady violations, but that the district attorney was liable for failing to train prosecutors about Brady. The district court upheld the verdict over the district attorney’s objection that “he could not have been deliberately indifferent to an obvious need for . . . Brady training because there was no evidence that he was aware of a pattern of similar Brady violations.” The trial court ruled that the need for training was so obvious that Thompson wasn’t required to show a pattern of violations. The Fifth Circuit, en banc, affirmed en by an evenly divided court. The judges split over the crucial question of whether a pattern of violations must be shown before training is a constitutional imperative.
The Supreme Court likewise divided on the issue – but not evenly. Justice Thomas wrote the Court’s opinion, joined by the Chief Justice and Justices Scalia, Kennedy, and Alito. Justice Ginsburg dissented from the bench, joined by the remaining three Justices.
Justice Thomas noted that liability under section 1983 occurs only when constitutional rights are violated by the “official policy” of a government entity, and that a failure to train employees can amount to such a policy only when the failure shows a “deliberate indifference” to the rights of the people with whom the employees may come into contact. Ordinarily, a showing of deliberate indifference requires a showing of a pattern of rights violations. Though Thompson pointed to at least four other Brady violations in the ten years preceding his robbery trial, he did not contend that this showed a pattern, and the Court stated that the other violations were not similar to the one in Thompson’s case because they did not involve scientific evidence.
Instead, Thompson contended that the need for training was so obvious that no showing of a pattern of violations was necessary. The Court disagreed, noting that all attorneys are trained, licensed, and subject to continuing education requirements, and that young prosecutors in the office in question were mentored and supervised by more senior lawyers. In short, “[p]rosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain,” so the district attorney had no reason to suspect that Brady violations would be widespread without training. Thus, civil liability was foreclosed.
The majority opinion and the concurrence suggest that Thompson may also have failed to establish causation. That is, they intimate that more training wouldn’t have prevented the Brady violation in this case. (Justices Scalia and Alito actually believe that “[t]here was probably no Brady violation at all” when the prosecutor initially failed to disclose the report, from which it follows that more training about Brady wouldn’t have changed anything.) That’s an interesting issue, but it isn’t at the heart of the opinion so I won’t dig into it.
The dissent argues that the facts of Thompson’s case are so egregious that, in effect, they establish a pattern of misconduct by themselves: “Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure.” It also contends that section 1983 liability is essential to motivate compliance with Brady.
To sum up, the case is good news for district attorneys, who can’t be held liable for failure to train their assistants about Brady absent a pattern of violations.
I mentioned at the outset that there may be a connection to H408, the proposed legislation that would limit prosecutors’ statutory discovery obligations to the contents of their own files, as opposed to the files of “all law enforcement and prosecutorial agencies” involved in the case, as G.S. 15A-903 currently requires. An AP article about the bill is here. Proponents argue that under current law, prosecutors may unfairly be held responsible for discovery violations when officers fail to provide prosecutors with their complete files. So perhaps one could argue that Connick, by setting a high threshold for civil suits against district attorneys, removes some of the motivation for H408. But my sense is that the point of H408 isn’t to limit civil liability – section 1983 claims must be predicated on constitutional violations, after all, and H408 doesn’t change prosecutors’ constitutional obligations – but rather is to limit the exposure of line prosecutors to judicial sanctions and State Bar discipline. And Connick doesn’t bear on these concerns. (None of the foregoing should be read as support for, or opposition to, H408. As with other policy proposals, the School of Government takes no position on H408.)
As always, if you have thoughts about the case or about the connection between the case and the pending legislation, please post a comment.