Amicus Curiae Brief — United States v. Bagley

» F TLeö“

No. 84-48

—PEE- 31 1984

IN THE SUPREME COURT ALEXANDER L STEVAB,

CLERK

OF THE

UNITED STATES

OCTOBER TERM, -1984

UNITED STATES OF AMERICA,

Petitioner,

v.

HUGHES ANDERSON BAGLEY,

Respondent.

|

On Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

BRIEF OF THE STATE OF CALIFORNIA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

>

JOHN K. VAN DE KAMP,

Attorney General

KARL S. MAYER

Deputy Attorney General

THOMAS A. BRADY

Deputy Attorney General

CHARLES R. B. KIRK

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-3944

Attorneys for State of California

i.

TOPICAL INDEX

PAGE

INTEREST OF STATE OF CALIFORNIA 1

SUMMARY OF ARGUMENT 3

ARGUMENT

THE BELATED DISCOVERY OF

UNDISCLOSED EVIDENCE DOES

nor REQUIRE RETRIAL OF A

CASE WHERE THE EVIDENCE

IS NOT EXCULPATORY AND

AND NONDISCLOSURE IS

CLEARLY NOT PREJUDICIAL 4

CONCLUSION 21

TABLE OF CASES

Bacley v. Lumpkin

(9th Cir. 1983) 71° Ff. 20 1462 2

Rrady v. Mar Lane

885 373 U.S. 83 2

California v. Trombetta

(1984) v. 8.

81 1. r 413

11

Giglio v. United States

112727 405 U.S. 158 6

In re Ferguson

T1971) s Cal.3d 525

96 Cal. Rptr. 594 14

In re Hall

T1981) 30 ca. 30 408

179 Cal. Rptr. 223 13

ii.

TABLE OF CASES

(Continued)

In re Imbler

Ti963) 21. 20 554

35 Cal. Rptr. 293

cert. denied, 379 U.S. 908

In re Weber

Ti974) Il Cal.34 703

114 Cal. Rptr. 427

cert. denied, 429 U.S. 847

Lutwak v. United States

(1953) 344 U.S. 604

People v. Clauson

(1969) 275 CST. App. 20 699

80 Cal. Rptr. 475

People v. Green

(1982) 130 Cal.App. 30 1

181 Cal. Rptr. 507

People v. Harris

(1°76) 62 Cal. App. 30 859

133 Cal. Rptr. 352

People v. Harris

(1977) 71 Cal. App. 30 959

139 Cal. Rptr. 788

People v. Huskins

1966) 245 Cal. App. 2d 859

54 Cal. Rptr. 253

People v. Mattison

115517 11. 1 177

93 Cal. Rptr. 185

18

13

20

14

15

18

19

14

12

111.

TABLE OF CASES

(Continued)

People v. McDaniel

(1976) 16 Cal.3d 156

127 Cal. Rptr. 467

cert. denied, 429 U.S. 847

People v. McGowan

(1980) 105 Cal. App. 38 997

166 Cal. Rptr. 725

People v. Randle

118527 130 Cal.App.2d 286

181 Cal. Rptr. 745

People v. Reyes

(1974) 12 Cal.3d 486

116 Cal. Rptr. 217

People v. Sheran

12571 42 Cal. 2d 101

315 P. 2d 5

People v. Wallin

(1981) 124 Cal.App.3d 479

177 Cal. Rptr. 303

People v. Williams

(1962) 57 Cal.2d 263

18 Cal. Rptr. 729

Strickland v. Washington

(1984) U.S.

80 L.Ed.2d 674

United States v. Agurs

(1976) 427 U.s. 9

United States v. Valenzuela-Bernal

(1982) 458 U.S. 858

PAGE

12

1°

16

19

12

20

16

11

iv.

TEXTS, STATUTES & AUTHORITIES

United States Code

Title 5

§ 522

§ 522a

Title 28

§ 2255

California Penal Code

§ 1181(8)

No. 84-48

PAGE IN THE SUPREME COURT

OF THE

4 UNITED STATES

4

OCTOBER TERM, 1984

5

UNITED STATES OF AMERICA,

- Petitioner,

v.

HUGHES ANDERSON BAGLEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

BRIEF OF THE STATE OF CALIFORNIA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF STATE OF CALIFORNIA

In United States courts, criminal

convictions for any recent year may

2.

number approximately 36,000.2/ Criminal

convictions in the State of California for

a similar period may exceed 230,000.2/ The

opinion below is purportedly based upon

federal due process standards established

by this Court in Brady v. Maryland (1963)

373 U.S. 83. (See Bagley v. Lumpkin (eth

Cir. 1983) 719 F.2d 1462, 1463-1464.) As

such, the principle established by the

Gecision herein will of necessity apply to

the States and heavily impact upon the

judicial system of California.

/

/

1. Statistics furnished by the

Administrative Office of the Courts for

the year ending June 30, 1°84, indicate

36,104 convictions in federal felony and

misdemeanor offenses, excluding petty

offenses.

2. Statistics furnished by the

Administrative Office of the Court of the

Judicial Council of California for the

year ending June 20, 1983, indicate

233,430 convictions in California felony

and misdemeanor offenses, excluding petty

offenses.

3.

SUMMARY OF ARGUMENT

The opinion below creates a reversal

per se rule in the case of any evidence

which was not revealed to the defense in

a criminal case pursuant to pre-trial

"Brady motion" where that evidence might

have been used to cross-examine prosecu-

tion witnesses. By ignoring the prob-

able impact of the undisclosed evidence

upon the outcome of the criminal pro-

ceeding, the opinion below disregards

both past and recent decisions of this

Court which clearly apply a harmless-

error standard in such cases. Further-

more, it creates an unjustified windfall

for criminal defendants who belatedly

chance upon some undisclosed morsel,

with a severe impact upon the judicial

system and the concept of finality. Due

process does not require absolute per-

fection in order to achieve a fair

trial.

4.

ARGUMENT

THE BELATED DISCOVERY OF UNDISCLOSED

EVIDENCE DOES NOT REQUIRE RETRIAL OF

A CASE WHERE THE EVIDENCE IS NOT

EXCULPATORY AND NONDISCLOSURE IS

CLEARLY NOT PREJUDICIAL.

In this case, the defendant made a

pre-trial “Brady motion" seeking informa-

tion including whether or not the Govern-

ment had paid or promised compensation to

witnesses or informants. (719 F.2d, at

1463.) In response, the affidavits of two

Principal witnesses--both of whom were

State law enforcement officers assigned to

work with a railroad--were filed in which

the witnesses stated that neither received

not expected compensation. (Id.) Some

three years after conviction, utilizing

the Freedom of Information Act (5 U.S.C.

ss 552, 552a), the defendant discovered

that the Government had routinely agreed

to reimburse both witnesses for expenses.

28.) The trial court denied the

Gefendant's motion for a new trial in a

5.

post-trial proceeding (28 9. 8. c.

§ 2255), “having concluded beyond a

reasonable doubt that ¢isclosure of the

ATF agreements would not have affected

Bagley’s convict ion.“ (Id., at 1464.)

In reversing, the Ninth Circuit con-

cluded that failure to disclose this

information “inhibited Bagley's ability

effectively to cross-examine two impor-

tant prosecution witnesses" because they

were “subject to impeachment for bias

based upon their remunerative relation-

ship with the government." (I.] In

essence, the opinion below holds that

nondisclosure of any evidence “the

defendant could use to conduct an effec-

tive cross-examination" requires rever-

sal. (A.) Yet such a standard is

neither espoused by this Court, nor

required to insure that a defendant will

receive a fair trial.

6. 7.

The standard adopted by the Ninth

A finding of materiality of the

Circuit--any diminution of the defendant's

evidence is required under

ability to cross-examine 4 witness denies

Brad “eS 2 x

due process of law--is tantamount to a —

Later, in United s Agurs (1976)

"per se reversal rule. (Cf. United 0 222 AGUES

427 U.S. 27, 108-110, which involved

States v. Valenzuela-Bernal (1982) 458

nondisclosure of the witness’ criminal

U.S. 858, 866.) Yet this Court long ago

record, this Court commented:

dispatched the notion that every nondis-

"The Court of Appeal

Closure of evidence deprives a defendant

appears to have assumed that

of a fair trial. In Giglio v. United

the prosecutor has 8 constitu-

States (1972) 405 U.S. 150, 154, this

tional obligation to éisclose

Court stated:

any information that might

"we do not, however, automati-

affect the jury's verdict.

cally require a new trial

That statement of 2 constitu-

whenever ‘a combing of the

tional standéaré of materiality

prosecutors’ files after the

h the ‘sporting theor

trial has disclosed evidence 99 ” 9 Y

tice’ which the Court

possibly useful to the defense of jus

cted in Brady.

but not likely to have changed expressly reje proc

For a jury's appraisal of a

the verdict... .*' [Citation.])

case ‘might’ be affected by an

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ae <a

improper or trivial considera-

tion as well as by evidence

giving rise to a legitimate

doubt on the issue of guilt. If

everything that might influence

a jury might be disclosed, the

only way a prosecutor could éis-

charge his constitutional duty

would be to allow complete dis-

covery of this files as a matter

of routine practice.

„„ . . The mere possibil-

ity that an item of undisclosed

information might have helped

the defense, or might have

affected the outcone of the

trial, does not establish

‘materiality’ in the constitu-

tional sense. (Footnotes

omitted.)

This

Court then declared (at 111-113):

*(T)he judge should not order @

new trial every time he is

unable to characterize nondis-

closure as harmless under the

customary harmless-error sten-

dard. Under that standard when

error is present in the record,

the reviewing judge must set

aside the verdict and Judgment

unless his ‘conviction is sure

that the error 910 not

influence the jury, ot had but

a very slight effect.’

[Citation.] Unless every von-

disclosure is regarded as auto-

matic error, the constitutional

standard of materiality must

impose a higher burden on the

defendant.

10.

"The proper standard of

materiality must reflect our

overriding concern with the

justice of the finding of guilt.

Such a finding is permissible

only if supported by evidence

establishing guilt beyond a rea-

sonable doubt. It necessarily

follows that if the omitted evi-

dence creates a reasonable doubt

that did not otherwise exist,

constitutional error has not

been committed. This means that

the omission must be evaluated

in the context of the entire

record. If there is no reason-

able doubt about guilt whether

or not the additional evidence

is considered, there is no

justification for a new trial.*

11.

The expression of the applicable prin-

ciples in Agurs was recently reaffirmed

in United States v. Valen -Bern

(1982) 458 U.S. 858, 868. The require-

ment of “materiality” before nondisclo-

sure affronts the Constitution was also

noted in California v. Trombetta (1984)

. s. — 82 L. rd. 2d 413, n. 8 at

422, and has deen described by this

Court as “the widely used standard for

assessing motions for new trial based on

newly discovered evidence“ in Strickland

v. Washington (1984) — U.S. __+ 80

L. rd. 26 674, 697.

Though Strickland die not refer to

California practices, it might well

have. California has several procedural

avenues for attacking @ conviction on

the basis of newly-discovered evidence.

One of this is the statutory motion for

a new trial which by definition is

available on such a basis only “When new

12.

evidence is d@iscovered material to the

defendant, and which he could not, with

reasonable diligence, have discovered and

produced at the trial." (Cal. Pen. Code,

§ 1181(8), emphasis added.) "To entitle a

party to a new trial on the ground of

newly discovered evidence it must appear

that the evidence is not merely cumula-

tive, but is material, and that it is such

as to render a different result probably

— —ää— .

on retrial ..-+ +" (People v. Sheran

(1957) 49 C1. 20 101, 111, 315 P. 20 5, 11;

accord, People v. McDaniel (1976) 16

Cal.34 156, 178, 127 Cal. Rptr. 467, 481,

cert. denied, 429 U.S. 847; People »

Mattison (1971) 4 Cal.3¢ 177, 188, 93 Cal.

Nptr. 185, 192.) A similar rule prevails

where the new discovery of evidence is the

basis for habeas corpus relief similar to

the section 2255 relief sought dy respon-

dent Bagley here.

13.

*"([Nlewly discovered evidence

does not warrant relief unless

it is of such a character ‘as

will completely undermine the

entire structure of the case

upon which the prosecution was

based.’ [Citation.] [Nlewly

discovered evidence will not

undermine the case of the pros~

ecution so as to warrant habeas

relief unless (1) the new evi-

dence is conclusive, and (2) it

points unerringly to inno-

cense.” (In re Weber (1974) 11

ca1. 3d 703, 724, 114 Cal. Rptr.

427, 433, cert. denied, 429

U.S. 847; accord, In Fe Hall

(1981) 20 Cal.3d 408, 417, 423,

179 Cal. Rptr. 223, 230-231.)

/

14.

In evaluating the gravity of the error,

California courts consider the context in

which the error occurs, and, unlike the

Ninth Circuit here, do not exalt technical

violations in utter disregard of sub-

stance. AS our highest court has noted:

"In considering the materiality of the

evidence, we must look to the entire

record because materiality can only be

determined in the light of the circum-

stances." (In re Ferguson (1971) 5 Cal. 3d

525, 533, 96 Cal. Rptr. 594, 600.) "(T]he

test ... is an objective one based on

all the evidence, old and new, whether any

second trier of fact, court or jury, would

probably reach a ditterent result.”

(People v. Huskins (1966) 245 Cal.App. 2d

859, 862, 54 Cal. Rptr. 253, 255; accord,

People v. Clauson (1969) 275 cal. App. 20

699, 706, 80 Cal. bot. 475, 480.) In

this regard, California follows the lead

15.

of this Court in United States v- Agurs

(1976) 427 U.S. 97, 112-113:

The error“ below concerned the non-

disclosure of what at best might be

termed marginally-impeaching evidence.

In California, XS 2 general rule, ‘evi-

dence which merely impeaches a witness

is not significant enough to make a d1 f-

ferent result probable. (People v.

Green (1982) 130 Cal.App.34 1, 11, 181

Cal. Rptr. 507, 514; People v. Huskins,

supra, 245 Cal.App.24 at 862, 54 Cal.

/

/

/

—

ä — [ͤ—4.—b——

3. The two witnesses apparently

signed what was & standard governmental

contract, and the trial court found that

they “probably „did expect to received

from the United States some kind of

compensation, over and above their

expenses for their assistance, though

perhaps not for their testimony.” (719

r. 2d, at 1462.)

16.

rptr., at 255.)4/ The California rule

recognizes the fact--well-known to trial

lawyers--that technically-impeaching evi-

dence is seldom viewed as any more than

that by either judge or jury. Certainly

the “impeaching” value of the evidence

which the Government did not disclose here

was minimal.

Yet the scope of “error embraced by

the Ninth Circuit is boundless. As this

Court noted of the witness deported in

United States v. Valenzuela-Rernal (1982)

458 U.S. 858, 866-867:

/

/

4. California courts do distinguish

those cases where the impeaching value of

the evidence is 80 devastating that it

totally destroys the credibility of the

sole prosecution witness. (See Freon v.

Williams (1962) 57 cal. 2d 263, 274- , 18

al. Rptr. 729, 736; Peo le v. Randle

(1982) 130 cal. App. 33 566, 293-294,

Huskins, supra, 245 Cal.App.2d at 563,

Cal. Rptr. at 255.)

17.

"Given the vagaries of a typi-

cal jury trial, it would be a

bold statement indeed to say

that the testimony of any

missing witness could not have

‘conceivably benefited’ the

defense. To us, the number of

situations which will satisfy

this test is limited only by

the imaginations of judges or

defense counsel.” (Footnote

omitted.)

Similarly, almost anything--however

inconsequential to the ordinary eye~-~may

seem monumental to the fanciful cross-

examiner. Hindsight speculation as to

the possible utility of evidence cannot

be the criterion for evaluating error;

even the best counsel may disagree on

18.

that point. (cf. Strickland v.

Washington (1984) — U-S+ _» 80 L.Ed. 28

674, 694-695. It has been California's

experience that the significance of evi-

dence looms larger in loss than in life.

(See, e:, People ¥Y- Harris (1976) 62

Cal.App.34 859, 863, 133 Cal. Rptr. 352,

354.) Were a per se reversal rule to

obtain, the significance of undisclosed

evidence would no doubt receive similar

post-conviction magnification.

What is worse is what the decision

below portends for our judicial system.

The larger the judicial system-- and

California has perhaps the largest of

all--the greater likelihood of error, not

because the system is defect ive, but

because it is staffed by human beings, a

mortal quality of which is to ert.

California cases demonstrate the truism

expressed in In re Imbler (19621 60 C1. 28

554, 567, 35 Cal. Rptr. 293, 300, cert.

19.

genes. 379 U.S. dos, that “Police

investigators, however, are not infal-

lible ...." ‘Thus we know of cases

where an investigating officer errone-

ously believes that a witness statement

was incorporated in his report, when in

fact it was not and was therefore not

disclosed (People v. Reyes (1974) 12

Cal.34 486, 501-502, 116 Cal. Rptr. 217,

226), or where negatives are over looked

resulting in photographs which are not

printed (People v. Harris (1977) 71

cal. App. 3d 959, 968, 13° Cal. Rptr. 788,

784) , The prosecutor himself may over

look a statement in his own file, which

consequently goes undisclicsed. (People

v. McGowan (1980) 105 Cal.App.3¢ 997,

1001, 166 Cal. Rptr. 725, 727.) These

prospects never end. And neither Coes

the hope of subsequently finding a min-

iscule shred of undisclosed evidence

which serves as a guarantor of release

20.

or reversal. Our highest court once

stated that “[T]he claim of newly dis-

covered evidence as a ground for a new

trial is uniformly ‘looked upon with dis-

favor, for there must be an end to liti-

gation." (People v. Williams (1962) 57

cal. 2d 263, 274, 18 Cal. Ry 729, 736.)

The per se reversal rule of the Ninth

Circuit, however, changes a criminal trial

from a fair search for truth into the

qualifying round of a treasure hunt.

Due process guarantees neither a suc-

cessful outcome nor à letter-perfect

defense. (People v. Wallin (1981) 124

Cal.App.3d 479, 484-485, 177 Cal. Rptr.

303, 306.) Or as this Court has observed,

"A defendant is entitled to a fair trial

but not a perfect one.” (Lutwak v. United

States (1953) 344 U.S. 604, 619.) The

Gecision below demands otherwise.

/

/

21.

CONCLUSION

For the foregoing reasons, the State

of California, as amicus curiae in sup-

port of petitioner United States, urges

reversal.

DATED: December 28, 1984

JOHN K. VAN DE KAMP,

Attorney General

KARL S. MAYER

Deputy Attorney General

THOMAS A. BRADY

ae Attorney Ge al

GE

Deputy Attorney Genera

Attorneys for State of California

CERTIFICATE OF SERVICE BY MAIL

CHARLES R. B. KIRK, a member of the

Bar of the United States Supreme Court,

hereby certifies that on December 28,

1984, a copy of the Brief of the State of

California as Amicus Curiav in support of

Petitioner vas served by mail upon the

counsel of record for each of the parties

respondent by depositing a copy in the

United States Mail at the United States

Post Office in the Federal Building, 455

Golden Gate Avenue, San Francisco,

California, with first-class postage pre-

paid, and properly addessed as follows:

MICHAEL G. MARTIN

Assistant Federal Public Defender

1111 3rd Avenue, Suite 280

Seattle, WA 98101

Attorneys for Respondents

DAVID A. STRAUSS

Assistant to Solicitor General

Department of Justice

Washington, DC 20503

Attorneys for Petitioner

DATED: December 28,

CHAPLES R. B. KIRK 5

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