concluding that the trial court’s determination of whether evidence was suppressed for Brady purposes involved the “legal consequences of the undisputed historical facts” and so was not entitled to appellate deference
How later courts described this case
- concluding that the trial court’s determination of whether evidence was suppressed for Brady purposes involved the “legal consequences of the undisputed historical facts” and so was not entitled to appellate deference
- explaining that the opportunity for use of favorable information guaranteed by Brady is the “opportunity for a responsible lawyer to use the information with some degree of forethought” (quoting Leka, 257 F.3d at 103)
- explaining that “a strategy of delay and conquer ... is not acceptable” (internal citation and quotation marks omitted)
- stressing that, in Brady 5 context, “the Constitution requires that disclosure be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case.... Prosecutorial resort to a strategy of ‘delay and conquer[ ]’ ... is not acceptable.”
Written by the judges who cited it.
The opinion
RUIZ, Associate Judge,
concurring:
I fully join Judge Schwelb’s opinion for the court reversing appellant’s convictions and remanding for a new trial. Because we conclude that the government’s suppression of exculpatory information violated appellant’s due process rights, on remand, the trial court should, as appropriate, conduct an inquiry to determine whether government counsel complied with Rule 3.8(e) of the District of Columbia Rules of Professional Conduct, 1 and with Rule 3.3 (“Candor to the tribunal”) in connection with representations to the court and defense counsel that Brady material had been disclosed and that there was no evidence that would have permitted a Winfield defense. 2 See Code of Judicial Conduct for the District of Columbia Courts, Canon 3(D)(2) & cmt. (1995) (prescribing judge’s obligation to “take appropriate action” where “lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a law *1135 yer,” including “direct communication with the ... lawyer” and “reporting the violation”); see also Model Code of Judicial Conduct, Rule 2.15(B) & (D) & cmt. [2] (2007) (same). A similar inquiry would also be relevant if there is a new trial and the defense again requests that the jury be instructed about the government’s failure to disclose exculpatory information as required by Brady. See Majority Opinion, ante at 1104 n. 9; Dissenting Opinion, post at 1105-06 n. 12.
To be clear, I am not suggesting, on the record we have, that the prosecutor acted in bad faith or knowingly withheld information he knew to be exculpatory. See Majority Opinion, ante at 1108 n. 15. There are too many unanswered questions to come to that conclusion: when did the trial prosecutor (who also questioned Taylor when he testified before the grand jury that the shooter used his left hand and had short hair) know that appellant is right-handed (as the trial prosecutor proposed to stipulate at trial) and had dreadlocks; whether the prosecutor knew that Lindsey, who was another suspect, is apparently left-handed, see District of Columbia Prof. Conduct R. 3.8(d); and when did the prosecutor become aware that Taylor changed his mind about which hand the shooter used and the reason for that change. The transcript reveals that in connection with the defense’s requested Brady instruction, the trial judge began to inquire into when certain exculpatory information was disclosed to the defense, but turned to the question of prejudice before completing the factual inquiry. This colloquy took place before the late disclosure of Taylor’s grand jury testimony came to the judge’s attention, however, and the judge, who understandably was dealing with the matter at hand, did not have the professional rules in mind. The manner and scope of any further inquiry is within the trial court’s discretion.
. Rule 3.8(e) makes intentional failure to comply with the government’s Brady disclosure obligation an ethical violation. See Majority Opinion, ante at 1108 n. 16. A prosecutor’s honest mistake or oversight does not implicate ethical concerns.
. Winfield v. United States, 676 A.2d 1 (D.C.1996). See Majority Opinion, ante at 1114 n. 23.