# Amicus Curiae Brief — United States v. Bagley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0808%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 473 U.S. 667 ## Text » 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 BEST AVAILABLE COPY ae