EDNY Judge Denies Rule 29 Motion but Issues Notable Comments on Government’s Disclosure Obligations

As Judge Gleeson pointed out recently in United States v. Mahaffy, 2010 WL 2925952 (E.D.N.Y. July 21, 2010), if a defendant’s interest in a fair trial is not reason enough, “one would think that the government’s selfish interest in the integrity and durability of the convictions it obtains would induce it to . . . err on the side of over-disclosure.”  But when it comes to pretrial disclosure, prosecutors often act less like advocates for justice and more like adversaries in a chess game.  It is an approach that is oddly counterproductive – leading to delayed dispositions and even appellate reversal.  

In Mahaffy, the six defendants who went to trial in the case and were found guilty by the jury moved for a dismissal of the indictment, or, in the alternative, for a new trial, on the ground that the government failed to disclose the transcripts of 12 depositions taken by the Securities and Exchange Commission (“SEC”), which the defendants claim violated the government's disclosure obligations.  Judge Gleeson denied the motion, finding that the depositions themselves did not contain sufficient favorable or exculpatory information as to have had a material effect on the verdict.  He ends his decision, however, with this admonition to the government:

Notwithstanding the foregoing, I remain mystified by the government's failure to disclose the testimony of these various witnesses. I see no legitimate interest served by an approach that has the parties and the Court sifting through the transcripts of testimony taken by the SEC after the trial has already occurred-especially when the testimony was taken as part of the investigation that resulted in this very case. Nor do I see a justification for the decision by the government's trial team (which did not include any members of the team that handled the original trial) not to reconsider the disclosure decisions made by their predecessors. The disclosure obligations imposed by the federal rules, federal statutes and the Constitution are too important, and too easily complied with, to justify such an approach. Even if the prosecutors are not sufficiently motivated, as they should be, by the defendants' interest in a fair trial, one would think the government's selfish interest in the integrity and durability of the convictions it obtains would induce it to consider its disclosure obligations on an ongoing basis, and to err on the side of over-disclosure unless well-grounded concerns about particular witnesses or other investigations counsel otherwise. My only concern in denying the pending motion is that it might have the effect of diminishing that selfish incentive. The government has assured me otherwise, and that changes have been made in the United States Attorney's office to ensure that similar failures do not occur in the future. Time will tell in that regard, but I note here that those procedures ought to include a requirement that the prosecutors in the case make contemporaneous records of their actions and decisions regarding disclosure in a manner that makes them accessible later on.  . . .Whatever else the United States Attorney does in response to the disclosure guidance recently provided by then-Deputy Attorney General David W. Ogden, it should make sure that it can provide a complete accounting of its actions in future cases.

(emphasis added).

Of course, leaving this issue to the prosecutor’s sound judgment and good faith is like leaving the fox in charge of the henhouse, as the Second Circuit observed in Rodriguez.  That’s why, to the extent possible, defense lawyers should try to identify and request specific Brady material in pretrial motion practice and request in camera review by the court if the government concedes the existence of the material but refuses to turn it over (as happened in Nogbou).