U.S. v. Carter

• Decision Date: 12 April 2004
• Docket Number: No. 03-CR-220.,03-CR-220.
• Citation: 313 F.Supp.2d 921
• Parties: UNITED STATES of America, Plaintiff, v. Elton CARTER, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 921

313 F.Supp.2d 921

UNITED STATES of America, Plaintiff, v. Elton CARTER, Defendant.

No. 03-CR-220.

United States District Court, E.D. Wisconsin.

April 12, 2004.

Carol Kraft, Karine Moreno-Taxman, Milwaukee, WI, for Plaintiff.

Mark D. Richards, Racine, WI, for Defendant.

MEMORANDUM

ADELMAN, District Judge.

The issue presented in this case was whether I should authorize the disclosure and use at trial as impeachment material a statement made by a cooperating co-defendant to a psychologist during a competency evaluation. I concluded that the statement should be disclosed under Giglio and that it could be used to impeach the credibility of the witness at trial. In this memorandum I set forth more fully the basis for my decision.

I. BACKGROUND

The government charged Elton Carter, Eric Walker and Nicholas Alston with the armed robbery of a Milwaukee post office. Walker and Alston pleaded guilty and agreed to testify against Carter. Prior to trial, Carter moved for an in camera review of Alston's mental health records, specifically the report completed by a psychologist appointed by the court after Alston's lawyer filed a motion to determine his competency. Carter argued that the report might contain exculpatory or impeachment material, see Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and thus requested that the court review it and disclose all such material. The government agreed that the court could review the report in camera but asked to be heard prior to any disclosure.

I reviewed the report and concluded that it contained one statement which constituted impeachment material.¹ However the government opposed disclosure (and admission) of the statement, arguing that it was hearsay, was cumulative of other prior inconsistent statements Alston made, and should not be disclosed under Fed.R.Crim.P. 12.2. I rejected those arguments, ordered disclosure of the statement, and allowed its use at trial. However, given the context in which the statement was made, in order to avoid any unfair prejudice to the government the parties and I agreed to the precise language of the questions that Alston could be asked.

II. APPLICABLE LEGAL STANDARDS

A. Disclosure of Impeachment Material

The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Clause provides the defendant with two types of protection: (1) the right to physically face those who testify against him and (2) the right to cross-examine those witnesses. Ritchie, 480 U.S. at 51, 107 S.Ct. 989 (citing Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)).

The Supreme Court has held that "the right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable." Id. at 51-52, 107 S.Ct. 989 (citing United States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). This does not mean that the Sixth Amendment compels discovery of all material that might aid in cross-examination. See id. at 52-54, 105 S.Ct. 465. However, the Due Process Clause does afford defendants a right to disclosure of information in the possession of the government that is favorable to the accused and material to guilt or punishment. Id. at 57, 105 S.Ct. 465 (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). This includes the right to disclosure of information concerning the credibility of key government witnesses. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); United States v. Bastanipour, 41 F.3d 1178, 1181 (7th Cir.1994). Thus, the Court in Ritchie held that although the defendant had no Sixth Amendment right to access the mental health records of the alleged victim of his crime, he was entitled to in camera review to determine whether they contained information useful to the defense under Brady/Giglio. 480 U.S. at 57-58, 107 S.Ct. 989. This was so even though state law generally shielded such records from disclosure. Id. at 57-58, 107 S.Ct. 989.

B. Appropriate Standard Prior to Trial

The Ritchie Court adopted the Brady standard for disclosure of material in mental health records. Under Brady and Giglio, the defendant's due process rights are violated if the government fails to disclose evidence that is "favorable" to the defense and "material" to an issue in the trial. See, e.g., United States v. Hartbarger, 148 F.3d 777, 786 (7th Cir.1998), overruled in part on other grounds by United States v. Colvin, 353 F.3d 569, 576 (7th Cir.2003) (en banc); United States v. Earnest, 129 F.3d 906, 910-11 (7th Cir.1997); United States v. Gonzalez, 93 F.3d 311, 315-16 (7th Cir.1996). Evidence is "favorable" if it "is either exculpatory in nature or tends to impeach a prosecution witness." United States v. Reyes, 270 F.3d 1158, 1167 (7th Cir.2001). Evidence is "material" if there is a reasonable probability that disclosure would have changed the result of the trial. United States v. Williams, 272 F.3d 845, 864 (7th Cir.2001).

This standard was developed in the context of appellate consideration of the effect of non-disclosure. United States v. Sudikoff, 36 F.Supp.2d 1196, 1198 (C.D.Cal.1999). Specifically, the materiality prong presumes that the trial has already occurred and requires the court to determine whether the result could have been different had the evidence been disclosed. But a court deciding whether material should be disclosed prior to trial does not have the luxury of reviewing the trial record.

Recognizing this, in Sudikoff, the court concluded:

This standard is only appropriate, and thus applicable, in the context of appellate review. Whether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material. See, e.g., Giglio, 405 U.S. at 154, 92 S.Ct. 763 (finding violation because "the Government's case depended almost entirely" on the cooperating witness's testimony, making impeachment crucial); Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.1997) (finding violation because lack of corroborating evidence at trial made impeachment evidence material); Willhoite v. Vasquez, 921 F.2d 247, 249 (9th Cir.1990) (finding no violation because there was "sufficient evidence apart from" the withheld evidence); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 874, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (noting that "because determinations of materiality are often best made in light of all of the evidence adduced at trial, judges may wish to defer" such determinations "until after the presentation of evidence"). This analysis obviously cannot be applied by a trial court facing a pretrial discovery request.

Additionally, the post-trial review determines only whether the improper suppression of evidence violated the defendant's due process rights. However, that the suppression may not have been sufficient to violate due process does not mean that it was proper. This conclusion is clear from consideration of an analogous standard of review, the standard for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Strickland, the Supreme Court set the standard for ineffective assistance of counsel as assistance that falls below reasonably objective standards and that prejudiced the defendant. As its standard for prejudice, the Supreme Court drew from Brady `s materiality standard. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ("Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution ...."); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1472 n. 6 (9th Cir.1988) ("The Strickland standard for prejudice has been considered to impose virtually the same burden on the defense as the standard for materiality in Brady claims."). Thus, the tests for Strickland and Brady are similar.

In this light, it is clear that Brady `s materiality standard determines prejudice from admittedly improper conduct. It should not be considered as approving all conduct that does not fail its test. Just as unreasonably deficient assistance of counsel is improper even if it does not meet the prejudice prong of Strickland and result in a Sixth Amendment violation, so suppression of exculpatory evidence is improper even if it does not satisfy the materiality standard of Brady and result in a due process violation. Though an error may be harmless, it is still error.

Therefore, post-trial standards and cases applying them are not helpful for determining the government's disclosure obligations.

Id. at 1198-99.

The Sudikoff court then concluded that, prior to trial, the standard should simply be whether the evidence is favorable to the accused, i.e. whether it relates to guilt or punishment and tends to bolster the defendant's case or impeach prosecution witnesses. Id. at 1199. The materiality component should be dropped.

[I]n the pretrial context it would be inappropriate to suppress evidence because it seems insufficient to alter a jury's verdict. Further, "the government, where doubt exists as to the usefulness of evidence, should resolve such doubts in favor of full disclosure ...." United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir.1984) (citing United States v. Goldberg, 582 F.2d 483, 489 (9th Cir.1978)). Thus, the government is obligated to disclose all evidence relating to guilt or punishment which might reasonably be considered favorable to the defendant's case.

Id.; see also United...