D.A.s Challenge Claim by Bar Section Head They Undermine 'Brady'

, New York Law Journal


Manhattan defense attorney Marvin Schechter, in the newsletter of the state bar's Criminal Justice Section, wrote "assistant district attorneys do not emerge from law school with a genetic disposition to hiding 'Brady' material. Instead this is something that is learned and taught."

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What's being said

  • Roland Thau

    I have not practiced in New York State courts for many years and can thus not comments on the accuracy or inaccuracy of Marvin Schechter's comments as they relate to the practices and training of assistant district attorneys but can assert the following about a troubling problem of many years' standing with the practices of the United States Attorney's office for the Southern District of New York as it relates to the disclosure of exculpatory or witness-impeaching evidence.

    Government witnesses, whether defendants or informants are interviewed by prosecutors and agents, often many times and for many hours in what are known as proffer sessions.

    Over time, and from one session to another, these interviewees will give different accounts of events which will be relevant at trials in which these people will be called as government witnesses. This writer has attended many such sessions as counsel for the profferors and heard many "evolving" accounts of important past events and cast of characters in those events.

    These interviews are not audio-recorded or transcribed stenographically. The notes taken by the government in these sessions are most often extremely skimpy, sometimes almost illegible and cryptic and do not reflect the inconsistencies in the witnesses' out-of-court accounts or between those and their trial testimony.

    Those notes are turned over to the defense just before trial as "18 USC 3500 material" but are most often of little use in the cross-examination of the witnesses since they do not reflect their prior inconsistent statements.

    Unless the interviews are thoroughly noted or recorded, even the best-intentioned prosecutor can not remember and disclose to defense counsel the witnesses' inconsistencies over a number of proffers lasting many hours.

    Is there an official Southern District US Atty policy to "not create 3500 material" as some cynics have been heard to claim? I am fairly certain that there is not. Have serious steps been taken to deal with the problem and insure full disclosure of the exculpatory or impeaching materials. Absolutely not.

    Some years back, a government witness codefendant of my client was represented by a Wall Street law firm. Knowing that its partner would bring a thorough notekeeping associate to their client's proffer session with the government, I subpoenaed the law firm's proffer notes and the government moved to quash the subpoenae! The motion to quash was denied and, QUELLE SURPRISE!!! the firm's notes had much more cross-examination fodder than the government's disclosed notes. Why did the governent move to quash??? US v. Ronele Williams, 02Cr.128(AKH) SDNY.

    Roland Thau

  • Pete F

    The DA's can spin it anyway they like. They can create 1,000 Task Forces on wrongful convictions. Anyone with a brain in their heads can tell you what is wrong with the system in 5 minutes.

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