What Is Exculpatory Evidence & When Must It Be Given To The Defense

My recent trial opened my eyes on several levels, the first being that some people do not understand what exculpatory evidence is. It is not quite what you think by definition of the word. In fact, it was interpreted by a Supreme Court case - Brady v. Maryland (which is why many people call exculpatory evidence simply "Brady").

Prosecutor 4 on the case was the first to interview the complainant (to my knowledge.) Before our motions hearing (in which I request evidence & additional hearings outside the presence of the jury), prosecutor 4 & I discussed Brady. He said that conflicts between what the complainant said on the video & what she said to him, if there were conflicts, is not Brady. This is WRONG. In fact, this is the kind of stuff that not guilty verdicts are made of! It impeaches the complainant to tell a different story. (Now, I know that many are thinking little kid - can't remember details. I won't get into that right now but this was an 18 year old whose outrageous claims were during the time period from when she was 14 - 16, depending upon on which story one relied.)

I had the judge admonish prosecutor 4 that conflicts WERE Brady & were to be turned over. His response to me was that he would have to re-watch the video. The case was set for trial and on the trial docket for 2 weeks before the court reset the case. I never heard anything about any Brady information from prosecutor 4 (who later got into trouble for violating Batson - but that's not my case).

Jump ahead three months to prosecutor 5 at the second trial setting. I hear nothing from him despite a couple of requests for Brady. Finally, on the first day of trial, he discloses a conflict that the complainant told him about. What the hell?! Apparently, according to prosecutor 5, it is the same as what she told prosecutor 4.

Now, I was able to use the information but you know, the rules are there to protect the accused. I'm sorry if some don't like that, but it is the law. It is the Constitution. What if it affected my trial strategy?! Moreover, prosecutor 4 had already been admonished (which is RIDICULOUS - as a felony prosecutor he should know the law & the rules. This person is putting people in prison left & right!)

More on this trial but the bottom line gripe, as a division chief in the prosecutor's office told me after I discussed this, and other problems with the trial, is when you think it MIGHT be Brady, turn it over - IMMEDIATELY. Don't you guys see all these DNA not guilty people whose cases are being overturned?! Does anyone give a damn that years of their lives were WASTED in prison?!

If it MIGHT be Brady - disclose it. Yes, you might get it shoved up your nose at trial but that is okay - isn't it? Don't you want justice? Don't you want the truth? Do you REALLY want to put an innocent person in prison? Why would you take that chance?

BTW, I've heard that everyone now has to read the District Attorney's Association book on Brady - what it is & when to disclose it. Shame especially that at a felony stage this is not already known, but at least some of the uppers are concerned enough to take action.

(Also note - this issue does not apply to all prosecutors. Many are quite diligent about turning things over. But, as we learn from the paper every day, some not only turn stuff over late, some cover & hide stuff. Get real. This is just your job, but this is the life of not only the accused but also an entire family - in this case. A family that could have healed much easier, much quicker, if the case had been dismissed - the right thing to do.)

More later.

Team court & prosecutrix v. me - trial fun IV

Welcome back! Let me first explain the term "Brady". In my blogs - it is about evidence which tends to impeach the complainant or to make it seem like she is not telling the truth. (It means much more than that - but just that for here.) That is for my non-lawyer friends who like to read my rants.

Remember I asked for Brady. I begged for it. I was admonished about my self righteous attitude because of my demands. I asked for PNDL1 (see prior blogs) & others to listen to the testimony because sometimes, you can just smell a rat. This courtroom smelled badly!

So, I'm getting ready to call the c/w back to the stand to set her up for the takedown. If my lawyer friends can believe this, a Children's Assessment Center (CAC) cop actually took & KEPT handwritten notes of his & the current prosecutrix on the case meeting with the c/w (complaining witness) mother! And I did ask I always do - asked for them to be preserved & turned over. (Course, I had asked & asked & asked . . . for Brady - got squat.)

I get hung up a lot when I write, don't I?! My memory causes me to get angry. This was NOT a good, fair battle.

Anyway, prosecutrix (PNDL not worthy of a number) keeps looking down her uppity nose at me & telling the Court in her snitty, shitty way how she has no Brady when I tell the Court I want to bring up that damn past stuff I keep trying to bring up all trial. (I can hear the breath of disgust now.)

Court: You keep talking about the mother... ME: I have to ask [c/w], first, & then I'll ask the mother. (We have to have the liar, uh, c/w deny before we can impeach with another witness.) Court: You have a good faith basis for believing that [mother] on numerous times, asked her daughter [c/w] if she had been sexually abused and she denied it? (Notice - my integrity is being questioned after Court got perturbed when I wanted to put prosecutrix on the stand, under oath. Oh, well. I am what they consider a scum-sucking bottom dwelling criminal defense lawyer - especially when they get CAUGHT RED-HANDED!!!!!)

ME: Yes, Your Honor (so sweeeettt) based on the notes from this officer when he interviewed her, which has not been disclosed to me. That's Brady. (Imagine me hmphing and prissing around the courtroom - I do tend to get a little uppity myself when I am lied to, disbelieved, & treated like trash - but I have proof - I am RIGHT!) Prosecutrix: (in a sweet, give me chill bumps, little girl voice): It's Brady that mom asked her if she had ever been abused? (Me: DUUUUUHHHHHH. As if she is saying she is so cute that we should expect her blonde butt to be dumb - that's what I thought when I said): And she was, Judge, and she did not outcry.

Court: That's cross examination material. That's Brady. I'm going to ask it be revealed to the defendant. little ms liar prosecutrix: She's had it for two days (leaving out that I've been asking for it for a year!) Court: Is there anything else like that that's a serious point? That's a pretty serious point. That's classic Brady material. And you apparently were present when she discussed that. (I had already told the court SHE WAS, and she admitted it.) [At this point, the Court gets on her a little - and I say]: There a lot of this, Judge. This is why again, I keep askiing for the prosecutors' notes. Because I firmly believe there are a lot of these kinds of things, based on the stuff I'm getting on these notes, which I didn't get until after he testifed (and I reserved my cross - which means I got the notes I asked for all year at the LAST possible second.)

I'll make this a short one & stop with that. You would think at this point - after catching the little liar in a big one, that my word would be gold & I'd be on easy street for the rest of the trial. But you be thinking WRONG. Are you kidding?! This judge is all about the conviction.

Ms. PNDL - do you remember this trial? Would you like to start 'splaining now? You can't, can you - because it was nothing but a railroad attempt. Luckily, even as I was beginning to get sick, I was not going to let this man down. I was not going to let them win. I fought hard. Stay tuned.