Lewis v. United States

• Decision Date: 20 September 1979
• Docket Number: No. 12288.,12288.
• Citation: 408 A.2d 303
• Parties: Arichie V. LEWIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 303

408 A.2d 303

Arichie V. LEWIS, Appellant, v. UNITED STATES, Appellee.

No. 12288.

District of Columbia Court of Appeals.

Argued March 19, 1979.

Decided September 20, 1979.

Richard T. Tomar, Washington, D.C., appointed by this court, for appellant. William J. Mertens, Public Defender Service, Washington, D.C., with whom Silas J. Wasserstrom, Washington, D.C., was on the brief, appointed by this court as amicus curiae, for appellant.^*

Peter E. George, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., at the time the briefs were filed, and John A. Terry, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before NEBEKER, MACK and FER-REN, Associate Judges.

FERREN, Associate Judge:

After issuance of our first opinion and order in this case, Lewis v. United States, D.C.App., 393 A.2d 109 (1978), the government petitioned for rehearing. We granted the petition (without vacating our opinion and order) to give further consideration to Parts IV and V of that opinion, specifically to the government's arguments that (1) the impeachable convictions of government witnesses are not Brady material,¹ automatically producible at trial upon request, and that (2) even if they are, this court's order is too broad.

After further review, we reaffirm our ruling.

I.

In our first opinion, we dealt with six issues inherent in "the trial court's failure to require the government to supply defense counsel, at trial, with all impeachable convictions of government witnesses." 393 A.2d at 113-14.² In summary, we held:

1. Impeachable convictions of government witnesses are putative "Brady material," see note 1 supra, producible by the government at trial upon a defense request. 393 A.2d at 114-15.

2. In response to such a request, "a defendant is entitled to learn about the impeachable convictions which the government itself possesses — and no more." Id. at 116. The prosecutor does not have an additional "duty to investigate — and come to know — information which the defendant would like to have but the government does not possess." Id. at 115.

3. The government's knowledge of impeachable convictions "is not limited to the personal knowledge of the particular prosecuting attorney." Id. at 116. More specifically:

The government, and thus its prosecutorial agent, is deemed to know about all prior convictions of government witnesses which happened to be listed in the government's records accessible to the prosecution; for example, from the United States Attorney's Office (including the Washington Area Law Enforcement System, WALES), the Metropolitan Police Department records file, or the FBI. [Id. (citations omitted).]

4. If a defendant knows the name of a government witness before trial, and the courthouse Criminal Information Center contains a record of an impeachable conviction of that witness (under the name known to defendant), then there has been "no `suppression' of Brady material" warranting production by the government at trial, id.; the defendant can be expected to have obtained that information himself.

5. Under certain circumstances, juvenile delinquency adjudications are includible within the government's obligation to produce impeachable convictions. "In the light, however, of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), we cannot conclude that all juvenile delinquency adjudications are not producible for impeachment purposes" under the Brady rule. 393 A.2d at 118.

6. The case accordingly was remanded to the trial court for further proceedings and findings as to whether the government had suppressed impeachable convictions and/or delinquency adjudications which might have affected the outcome. We prescribed an in camera method for trial court consideration of juvenile delinquency adjudications. Id. at 118-19.

II.

A. The government argues that our order requiring disclosure of all impeachable convictions at trial, upon request, is conceptually unsound. The government points out, first, that our principal authority, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed2d 215 (1963), and the Supreme Court cases interpreting Brady, e. g., United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), concern retrospective looks at particular evidence withheld by the government; they do not create categories of automatically producible government evidence. To reinforce the point, the government stresses that three United States Circuit Courts of Appeal have held, on the facts, that due process had not been violated by failure to disclose impeachable convictions. United States v. Crockett, 534 F.2d 589, 601-03 (5th Cir. 1976); United States v. Atkinson, 512 F.2d 1235, 1239 (4th Cir. 1975); United States v. Miller, 499 F.2d 736, 743-44 (10th Cir. 1974).³ Second, according to the government, the impeachable convictions of its witnesses are rarely "material either to guilt or to punishment" of the accused, Moore, supra 408 U.S. at 794, 92 S.Ct. at 2568; thus, it is especially inappropriate for this court, as a constitutional matter, to require their automatic production at trial. Third, although the government at oral argument confirmed its "usual practice" of disclosing such convictions to defense counsel at trial, upon request, see United States v. Engram, D.C.App., 337 A.2d 488, 489 (1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 793, 46 L.Ed.2d 648 (1976), that practice, we were told, is limited to convictions which happen to be known to an individual prosecutor and is a matter of prosecutorial grace, not constitutional obligation.

We agree with the government's first point that Brady and later Supreme Court cases have been retrospective evaluations, i. e., decisions as to whether a defendant's due process rights had been violated by the government's withholding of particular evidence. For that reason, we acknowledged that not all impeachable convictions of government witnesses will be material to guilt or punishment, 393 A.2d at 115; thus, failure to disclose them, upon request, will not necessarily lead to automatic reversal. Id.

Nevertheless, as the government doubtless would agree, these Supreme Court rulings are premised on the view that due process requires pretrial (or at least at-trial) disclosure, upon a specific request, of evidence material to guilt or punishment. See Agurs, supra 427 U.S. at 106, 96 S.Ct. 2392; Moore, supra 408 U.S. at 794, 92 S.Ct. 2562; Brady, supra 373 U.S. at 86-87, 83 S.Ct. 1194.

Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of [the] request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. [Agurs, supra 427 U.S. at 106, 96 S.Ct. at 2399 (emphasis added).]

While it is therefore true that the constitutional question commonly comes up retrospectively, the due process underpinning of Brady-Agars is a command for disclosure before an accused has to defend himself.

It is here that we part company with the government. Contrary to its second contention, we cannot accept the argument that impeachable convictions are rarely material to guilt or punishment. For reasons explained below, we reaffirm our conclusion that "the likelihood of materiality is sufficiently strong for the Brady rule to mandate production of all impeachable convictions of government witnesses — at least the convictions the government knows about." 398 A.2d at 115 (footnote omitted). It follows, in response to the government's third point, that because every defendant is entitled to the benefit of a mandatory rule, due process cannot be satisfied by the disclosure of only those convictions which a particular prosecutor fortuitously possesses; a more uniform approach is required.

We turn now to an elaboration of these points.

B. We begin from the premise that "impeaching evidence" is exculpatory and thus can be material to guilt or punishment, within the meaning of Brady. See Williams v. Dutton, 400 F.2d 797, 800 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S.Ct. 908, 21 L.Ed.2d 799 (1969). Indeed Congress, by providing for impeachment of witnesses by reference to their prior convictions, has made a legislative finding that such impeachment is likely to be material to the outcome.⁴ Commonly, therefore, federal district court judges, presented with defense motions to produce impeachable convictions of government witnesses, have ordered their disclosure at trial as a matter of due process, citing Brady. See. e. g., United States v. Quinn, 364 F.Supp. 432, 445 (N.D.Ga.1973), aff'd on other grounds, 514 F.2d 1250 (5th Cir. 1975); United States v. Houston, 339 F.Supp. 762, 766 (N.D.Ga. 1972); United States v. Eley, 335 F.Supp. 353, 358 & n. 4 (N.D.Ga.1972); United States v. Leichtfuss, 331 F.Supp. 723, 736 (N.D.Ill.1971); United States v. Johnson, 298 F.Supp. 58, 65 (N.D.Ill. 1969); United States v. Leta, 60 F.R.D. 127, 131 (M.D.Pa. 1973).⁵

In none of these cases has the court required the defendant, as the moving party, to satisfy the test of materiality normally associated with a retrospective Brady-Agurs inquiry, namely, materiality to outcome. Instead, these courts, in effect, have deemed impeachable convictions to be automatically producible.⁶ On the premise that there can be a pretrial ruling under Brady, this abandonment of the material-to-outcome test is necessary because there can be no objective, ad hoc way to evaluate before trial whether an impeachable conviction of a particular government witness will be material to the outcome. No one has that gift of prophecy. To argue that the court can apply a material-to-outcome test before trial is to argue a contradiction. See...