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NY Fair Trial: Brady Evidence withheld results in New Murder Trial

Criminal conviction overturned. The homicide conviction is overturned in this case because the prosceutor withheld evidence. "The Brady rule is based on the requirement of due process, and [i]ts purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that the accused receives a fair trial'" (People v Garrett, 23 NY3d 878, 884 [2014], quoting United States v Bagley, 473 US 667, 675 [1985]). "[T]he Court of Appeals recently reaffirmed that a defendant's inability to interview a potentially favorable witness because his existence was suppressed constitutes a Brady violation where the information gathered, 'if true, would have directly contradicted the People's theory of the case' " Id. (citing People v Rong He, 34 NY3d 956, 958 [2019]).

One faced with a crime cannot presume he or she will get a fair trial because the constitution requires it. The system is adversarial and a good attorney can make the difference of whether there is a conviction because the other side withheld evidence. Here, after conviction,

Defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that it was obtained in violation of his state and federal constitutional rights, including his rights under Brady. Defendant noted that the prosecution failed to disclose that it had interviewed a second eyewitness two years before trial and failed to disclose the report. Defendant's trial lawyer submitted an affirmation in which he explained how timely disclosure of the information would have affected his preparation of the defense, including a misidentification defense. His investigator also submitted an affidavit in which he stated that timely disclosure would have been valuable because the statement contained "several strong leads." For example, he would have spoken to the eyewitness before his memory faded or he became uncooperative, and he would have located the other two people who were sitting with the eyewitness. In addition, the rumor that Phillips robbed Social Security recipients was another lead that would have caused the investigator to seek out people not otherwise on the defense "radar" for potential leads about Phillips or those who wanted to kill him. The court denied the motion, on the basis that there was "overwhelming evidence" supporting the verdict, so that disclosure of the statement would not have resulted in a different verdict. We conclude that this was error.

These violations are extremely difficult to overturn at the Appellate or the Supreme Court level because, as this Court notes, often times there is overwhelming evidence. This occurred in the cases of several persons who are now exonerated, including Jeffrey Descovic.

How do we prevent false convictions and the fiscal as well as societal costs of exonerations - one should prevent them from occurring in the first place.

This case highlights the importance of obtaining Brady v. Maryland evidence at the outset and holding the prosecutor accountable for Brady violations. A New York Criminal Defense attorney must do more than consult a check list, our office makes FOIL/Public Officer Demands, Litigation Hold Notices and Discovery Demands specific to the case, as the 1st Department held:

The Brady rule, derived from the Due Process Clauses of the Federal and state Constitutions, requires the prosecution to disclose evidence in its possession that is favorable and material to the defense (see Brady v Maryland, 373 US 83 [1963]; People v Giuca, 33 NY3d 462, 473 [2019]; People v Fuentes, 12 NY3d 259 [2009]). To establish a Brady violation, the defendant must show that (1) the evidence is favorable to the defendant because it is exculpatory or impeaching in nature, (2) the evidence was suppressed by the prosecution, willfully or inadvertently, and (3) prejudice resulted to the defendant because the suppressed evidence was "material" (Strickler v Greene, 527 US 263, 281-282 [1999]; People v Garrett, 23 NY3d 878, 884 [2014]; Fuentes, 12 NY3d at 260). Here, the People concede the first two prongs, as they must, since the witness statement could have been used to impeach Davis and because it was suppressed. The question then becomes whether it was material.

The test for materiality in this case is relaxed, because defendant specifically requested witness statements. Accordingly, all defendant needed to establish was that there exists a "reasonable possibility" (not probability) that the verdict would have been different had the material not been suppressed (see People v Vilardi, 76 NY2d 67, 77 [1990]). In the recently decided case of People v Rong He (34 NY3d 956 [2019], supra), the People failed to turn over to the defendant, who had been charged with assaulting someone in a nightclub, the statement by the owner of the nightclub, which identified two people as assailants, neither of whom was the defendant. The Court held that the statement was material because, notwithstanding other evidence of the defendant's guilt, the sole witness to identify the defendant at trial initially told police he did not see the assailant's face. Thus, granting the defendant access to the owner "could have allowed defendant to develop additional facts, which in turn could have aided him in establishing additional or alternative theories to support his defense" (id. at 959).

Id. (emphasis added). When you do not make specific requests, a criminal defense attorney must specifically ask for material evidence, you will not get this result.

Hire an attorney familiar with the laws, demands the discovery and vigorously pursues the evidence: Call the Law Offices of Cory H. Morris if you or a loved one is facing an accusation or criminal charges.

New York and Florida, Injury, Addiction, Accident, Criminal | Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA).

The Case is People v. McGhee, 2019 N.Y. Slip Op 9116 (1st Dep't. App. Div. 2019).

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