{"id":275,"date":"2018-03-26T03:00:22","date_gmt":"2018-03-26T07:00:22","guid":{"rendered":"https:\/\/www.nlg.org\/nlg-review\/?post_type=article&p=275"},"modified":"2018-03-27T12:10:08","modified_gmt":"2018-03-27T16:10:08","slug":"rosario-vilardi-and-their-progeny-do-they-hold-rogue-prosecutors-accountable-and-bring-justice-to-the-wrongfully-convicted","status":"publish","type":"article","link":"https:\/\/www.nlg.org\/nlg-review\/article\/rosario-vilardi-and-their-progeny-do-they-hold-rogue-prosecutors-accountable-and-bring-justice-to-the-wrongfully-convicted\/","title":{"rendered":"Rosario, Vilardi, and Their Progeny: Do They Hold Rogue Prosecutors Accountable and Bring Justice to the Wrongfully Convicted?"},"content":{"rendered":"

Daniel Kelly<\/strong><\/p>\n

Daniel Kelly is an associate at LeClair Ryan, P.C., working out of the New York City office. He is licensed to practice law in New York and New Jersey and admitted to the bars of the United States District Courts for the Southern and Eastern Districts of New York. His practice areas include criminal defense in New York and New Jersey, immigration law, commercial litigation, insurance coverage, and general liability.<\/em><\/p>\n

 <\/p>\n

The Supreme Court of the United States has boldly declared that, although \u201cthere is no general constitutional right to discovery in a criminal case,\u201d1\u00a0<\/sup>the Due Process Clauses in the Fifth and Fourteenth Amendment to the U.S. Constitution do provide the criminally accused with the right to a certain kind of evidence within the state\u2019s possession.2<\/sup> In the landmark decision of Brady v. Maryland<\/em>,3<\/sup> the Court stated that \u201cthe suppression by the prosecu\u00adtion of evidence favorable to the accused . . . violates due process where the evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution.\u201d4<\/sup> While it is true that, over the years, the Court has broadened both the kind of evidence the state must turn over to the defense and the scope of its responsibility to do so, the requirement that evidence be \u201cmaterial\u201d has given certain Justices a vehicle (or a pretext) to limit Brady\u2019s <\/em>scope.5<\/sup> This article will discuss the federal Constitutional requirements that govern all prosecutors<\/em>\u2014state and federal\u2014with respect to disclosure of exculpatory evidence and examine how those requirements have largely not lived up to the lofty rhetoric of Brady <\/em>itself.<\/p>\n

All is not lost, however. Because the Supreme Court sets the floor\u2014and not the ceiling\u2014of individual constitutional rights, the states are free to provide the accused with a broader right to discovery in a state criminal proceeding. New York has done just that. Contrasting the New York standard against the federal one will show that the former affords, at least in theory, more meaningful protection to the accused. However, rules without enforcement are empty platitudes. This standard only matters if it provides defendants more discovery rights in practice and imposes meaningful consequences when those rights are violated.<\/p>\n

The federal standard: federal constitutional requirements<\/strong><\/p>\n

In Brady<\/em>, John L. Brady and his codefendant, Donald Boblit, were tried for capital murder.6<\/sup> Brady conceded that he acted in concert with Boblit in the commission of the crime, but testified that Boblit had done the actual killing.7<\/sup> Brady pled with the jury to spare his life during the sentencing stage, but to no avail.8<\/sup> After the jury voted for capital murder, Brady found out the prosecution possessed a statement by Boblit admitting that he pulled the trigger.9<\/sup> Brady\u2019s attorney had previously requested to inspect any statements Boblit made, but the prosecution withheld them. The Supreme Court held that Brady was, under these circumstances, entitled to a new trial on the issue of punishment.10<\/sup> And, since that landmark ruling, the Court has extended the disclosure requirements imposed on the prosecution to any exculpatory evidence that is within the police\u2019s possession, regardless of the prosecutors actual knowledge of the evidence\u2019s existence.11<\/sup><\/p>\n

In a series of subsequent holdings, the Court has delineated three elements of a true Brady <\/em>violation: (1) the suppressed evidence must be favorable to the accused, (2) it must, in some way, have been suppressed by the state, and (3) the evidence must have been material, in the sense that the defendant was prejudiced by its suppression.12<\/sup><\/p>\n

As to the first element, the Brady <\/em>court made clear that directly exculpa\u00adtory evidence must be disclosed.13<\/sup> In Giglio v. United States <\/em>the court went further.14<\/sup> In Giglio<\/em>, the prosecution\u2019s star witness was promised immunity in exchange for his testimony against the defendant at trial.15<\/sup> The Court overturned the defendant\u2019s conviction, holding that \u201cnondisclosure of evi\u00addence affecting credibility\u201d is a violation of due process and must also such evidence be disclosed to the defense. In other words, impeachment material is Brady <\/em>material.16<\/sup><\/p>\n

As to the second element, the Court has held that state \u201csuppression\u201d of evidence exists regardless of whether the defendant makes a request for Brady <\/em>material itself, makes only a generalized request, or makes a specific demand for a particular piece of evidence within the state\u2019s possession.17<\/sup> While emphasizing the prosecutor\u2019s dual role as an advocate and minister of justice,18<\/sup> the Court stated that some evidence may be \u201cobviously of such substantial value to the defense that elementary fairness\u201d mandates that the accused receive it whether they make a request or not.19<\/sup><\/p>\n

As to the final element, the Court has reasoned that, since the defendant\u2019s right to certain exculpatory evidence is grounded in his or her constitutional due process right to a fair trial, there is no breach of the prosecutor\u2019s duty to disclose the evidence unless that nondisclosure did in fact deny the defendant a fair trial.20<\/sup> In a criminal proceeding, a fair trial requires that the state prove the defendant is guilty of the offense beyond a reasonable doubt. Accordingly, the non-disclosure of evidence denies the accused a fair trial if it \u201ccreates a reasonable doubt that did not otherwise exist.\u201d21<\/sup> Two leading scholars in criminal jurisprudence have asserted that, in United States v. Bagley<\/em>,<\/p>\n

the Court defined the test [for materiality] as follows: \u201c[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A \u2018reasonable probability\u2019 is a probability sufficient to undermine confidence in the outcome.\u201d22<\/sup><\/p>\n

Even though Bagley <\/em>was only a plurality opinion, its influence on the Court\u2019s subsequent materiality jurisprudence is undeniable.<\/p>\n

The Court has never tried to attach a numeric percentage on the meaning of \u201creasonable probability,\u201d but respected commentators have asserted that the defendant need not show by a preponderance of the evidence that he would get acquitted had the evidence not be suppressed. While the defendant\u2019s burden may be unclear, it is clear that the prosecution need not show that the error was harmless beyond a reasonable doubt.23<\/sup><\/p>\n

Likewise, when it comes to the state\u2019s obligation to preserve potentially crucial evidence (as opposed to suppressing evidence the state already has in its possession), even where the burden to preserve the evidence would be light, the Supreme Court has imposed a crippling burden on the accused to show a Brady <\/em>violation: \u201cunless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute denial of due process of law.\u201d24<\/sup><\/p>\n

It is true that the Supreme Court has articulated rules to govern discovery in the federal courts under its supervisory powers and, similarly, Congress has enacted the Federal Rules of Criminal Procedure.25<\/sup> However, neither set of rules imposes inexorable constitutional commands binding upon all fifty states as the case law does. Indeed, discovery rules are subject to amend\u00adment or outright repeal should it be politically expedient to do so. Brady <\/em>and its progeny have spawned a great deal of scholarly comment and criticism over the years and serve as the key point of comparison for purposes of this discussion. For that reason, and for the sake of analytical clarity, this article omits any discussion of the federal statutory discovery requirements.<\/p>\n

Critique of Brady <\/em>and its progeny <\/strong><\/p>\n

The Supreme Court\u2019s jurisprudence concerning a criminal defendant\u2019s constitutional right to discovery has been persuasively criticized by legal scholars, practitioners, and members of the Court themselves. To start with this last category, Justice Thurgood Marshall, with a thundering dissent in United States v. Bagley<\/em>, criticized the \u201creasonable probability\u201d standard as one that will lead prosecutors to suppress favorable evidence and let them disregard \u201cas irrelevant or unpersuasive evidence that draws [the prosecutors] own judgment into question.\u201d26<\/sup> One commentator has openly questioned whether an upright district attorney would ever have legitimate Brady <\/em>mate\u00adrial, because, by hypothesis, the evidence would have to have such a tendency to exculpate the accused \u201cthat it would make [the prosecutor] question the reliability of the guilty verdict.\u201d27<\/sup><\/p>\n

Professor Richard Rosen, nearly thirty years ago, sounded the alarm on a problem he believed was anything but trivial: \u201cThere are . . . enough reported cases containing strong evidence of intentional prosecutorial withholding of exculpatory evidence and presentation of false evidence to demonstrate that this kind of misconduct occurs frequently enough to generate considerable concern about devising an effective remedy.\u201d28<\/sup> In recent years, even DNA evidence that conclusively exonerated <\/em>convicted individuals has been scoffed at by some tunnel-visioned prosecutors.29<\/sup> These are extreme and anecdotal exceptions perhaps, but they occur frequently enough to raise legitimate concern about the standard by which prosecutors determine whether they must disclose exculpatory evidence.<\/p>\n

Professor Daniel Medwed, drawing on his extensive experience as a public defender with the Legal Aid Society in New York City, decried the Court\u2019s approach as one that requires even good faith prosecutors to \u201cengage in an artificial, prospective assessment about how particular items of evidence fit within the jigsaw puzzle of a possible trial.\u201d30<\/sup> Medwed considered a way to make this materiality standard more protective of the accused: by changing the test from a reasonable probability to a reasonable possibility <\/em>that the trial would have had a different result.31<\/sup> He believes that such a standard would make it tougher for prosecutors to withhold exculpatory evidence that is borderline Brady <\/em>material.32<\/sup> \u201cNew York has taken this approach in certain situations. Where a defendant in state court makes a specific request for a piece of favorable evidence, nondisclosure of that item will satisfy materiality so long as its presence would have created only a reasonable possibility of a different result.\u201d33<\/sup> Can such a standard help fix the Brady <\/em>problem?<\/p>\n

New York\u2019s constitutional requirements <\/strong><\/p>\n

In the landmark case of People v. Vilardi<\/em>,34<\/sup> the New York Court of Appeals announced a sharp break from the United States Supreme Court\u2019s materiality standard.35<\/sup> The Court of Appeals directly confronted the question: \u201cMore particularly, we must decide whether the standard of United States v. Bagley <\/em>. . . should be adopted as a matter of State law.\u201d36<\/sup><\/p>\n

Before Vilardi\u2019s case ever began, the Kings County (Brooklyn) District Attorney\u2019s Office had charged brothers Ronnie and William Bernacet with arson in the first degree.37<\/sup> In that case, Officer Daniel Kiely of the Bomb Squad unit of the New York City Police Department (NYPD) prepared a report that concluded that there was no evidence of an explosion, and property damage arising out of such an explosion was a necessary element of the arson offense.38<\/sup> In summation, defense counsel urged that there was insufficient evidence of an explosion based on Officer Kiely\u2019s report, and both Ronnie and William Bernacet were acquitted.39<\/sup> After the verdicts, the District Attorney decided to charge another individual, Antonio Vilardi, with first degree arson\u2014the same charge <\/em>in the same incident <\/em>on which the Bernacet brothers had just been tried and acquitted.40<\/sup> Vilardi\u2019s lawyer made a specific discovery request for all reports \u201cby ballistics, firearm, and explosive experts\u201d arising out of the incident, but this time the prosecution failed to disclose Officer Kiely\u2019s report.41<\/sup><\/p>\n

The Court of Appeals stated that a \u201cshowing of a \u2018reasonable possibility\u2019 that the failure to disclose the exculpatory report contributed to [Vilardi\u2019s conviction] remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense.\u201d42<\/sup> In this regard, the Court of Appeals emphatically rejected what it characterized as a less protective federal standard.43<\/sup><\/p>\n

The Court reasoned that a failure to disclose evidence in the face of a spe\u00adcific defense request posed an unacceptable risk of denying the defendant a fair trial.44<\/sup> Further, viewing the strength of the state\u2019s case with the distorted vision of hindsight, post-conviction, would provide less incentive for prosecu\u00adtors to diligently search files for exculpatory evidence and disclose it to the defense in close cases.45<\/sup> The Court chastised the \u201creasonable probability\u201d standard articulated by the Supreme Court as unclear and asserted that such a standard \u201cremits the impact of the exculpatory evidence to appellate hindsight, thus significantly diminishing the vital interest this court has long recog\u00adnized in a decision rendered by a jury whose ability to render that decision is unimpaired by failure to disclose important evidence.\u201d46<\/sup> Thus, the Court held there was a reasonable probability that defense counsel\u2019s trial strategy would have been altered, and may have resulted in a different outcome, when the prosecution witheld the initial explosive report.47<\/sup> Indeed, the Court noted that the doubts raised by Officer Kiely\u2019s report seemed to play a considerable role in the Bernacet brothers\u2019 acquittal.48<\/sup><\/p>\n

Years before Vilardi <\/em>was decided, the New York Court of Appeals laid down an initial bright-line, state constitutional rule. In People v. Rosario<\/em>,49<\/sup> the defendant, Luis Rosario, was convicted of first degree murder for shooting a store clerk in the course of a robbery.50<\/sup> The Court believed there was no doubt about his guilt and, indeed, Rosario did not challenge the sufficiency of the evidence.51<\/sup> Rather, he claimed that the trial court committed reversible error when it refused to order the prosecution to turn over prior recorded statements by the prosecution\u2019s witnesses.52<\/sup><\/p>\n

Procedurally, the state conducted direct examination of each of three witnesses during its case-in-chief.53<\/sup> Before his cross examination, defense counsel asked to see the witnesses\u2019 statements in full <\/em>to determine whether or not they would be useful.54<\/sup> The trial court only allowed the defense to learn of \u201cvariances\u201d between the statements and each witness\u2019s trial testimony,55<\/sup> and prevented defense counsel from viewing the whole statement and deter\u00admining what might be useful during cross examination.56<\/sup><\/p>\n

The Court of Appeals rejected the trial judge\u2019s ruling in no uncertain terms:<\/p>\n

The procedure to be followed turns largely on policy considerations, and upon further study and reflection this court is persuaded that a right sense of justice entitles the defense to examine a witness\u2019 prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness\u2019 testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination.57<\/sup><\/p>\n

The Court noted several methods by which a prior statement could be use\u00adfully employed by defense counsel at trial, even if it was largely consistent with the witness\u2019s trial testimony.58<\/sup> Such statements could help demonstrate bias or help neutralize unfavorable testimony.59<\/sup> Moreover, any additions, subtractions, or omissions between the prior statement and the trial testimony may put the trial testimony in an entirely different context before the jury.60<\/sup> Finally, the Court noted that a partisan lawyer for the defendant would be in a superior position to consider the potential impeachment value of the prior statement that would not be as apparent to the trial judge sitting as a neutral arbiter between the state and the accused.61<\/sup> For these reasons, the Court concluded the statements should have been disclosed in their entirety to defense counsel.62<\/sup> The Court affirmed the conviction in any event, being quite certain Rosario <\/em>was not prejudiced by the nondisclosure.63<\/sup> Still, the decree had been made. The case proved to be such a significant landmark that some members of the New York bar colloquially dubbed prior recorded statements that had to be turned over to the defense as \u201cRosario material.\u201d64<\/sup><\/p>\n

Taken together, Vilardi <\/em>and Rosario <\/em>are the crux of a New York defendant\u2019s state constitutional right <\/em>to discovery to prepare his defense for trial. Does it make a difference?<\/p>\n

New York v. federal standard: conviction reversals<\/strong><\/p>\n

At the outset of the forthcoming analysis, intellectual honesty and academic integrity demand a concession that what the Supreme Court might do in a given case and what the New York Court of Appeals might do in that same case inevitably involves some speculation. Perhaps the most sensible way to proceed is to first consider cases in New York where discovery violations resulted in post-conviction relief, including reversing those convictions. Then we may consider if discovery violations would <\/em>be found and convictions re\u00adversed had the federal standard been applied, instead of the more nominally protecting New York standard.<\/p>\n

In People v. Cwikla,<\/em>65<\/sup> Tommy Cox, a participant in an alleged homicide who had already pled guilty to manslaughter, testified against the defendant Roger Cwikla, who had been charged with first degree murder in connec\u00adtion with the killing.66<\/sup> Cox asserted on direct examination that he was not promised anything from the prosecutor in exchange for his testimony against Cwikla.67<\/sup> On cross, however, Cox admitted that he asked the District Attor\u00adney\u2019s office to write to the Parole Board on his behalf, but maintained that the District Attorney\u2019s office never promised it would do so.68<\/sup> Thereafter, defense counsel moved to have the prosecutor produce any correspondence between its office and the Parole Board.69<\/sup> As the Court described, \u201cIt was defense counsel\u2019s position that such material, if it existed, might <\/em>be exculpa\u00adtory as tending to show a motivation to lie on the part of the prosecution\u2019s chief witness.\u201d70<\/sup> The prosecution rebuked the request to produce any such correspondence or even to say whether it existed.71<\/sup> The trial court agreed to issue a subpoena to the Parole Board for the materials, but refused to order disclosure from the prosecution.72<\/sup><\/p>\n

On appeal, the defense received what it asked for: letters from Tommy Cox\u2019s mother to the prosecutor asking him to intervene in Cox\u2019s imminent parole eligibility hearing, an extensive letter from the prosecutor to the Parole Board praising Cox for his cooperation and urging the Board to consider his cooperation in its decision, and the Parole Board\u2019s acknowledgement of, and thanks to, the District Attorney\u2019s Office for the information concerning Cox\u2019s cooperation.73<\/sup> The New York Court of Appeals seemed to find this nondisclosure particularly troubling:<\/p>\n

The materials sought by defense counsel here\u2014correspondence between the office of the District Attorney and the Parole Board relating to the witness Tommy Cox\u2014were of such a nature that the jury could have found that, despite the witness\u2019 protestations to the contrary, there was indeed a tacit understand\u00ading between the witness and the prosecution, or at least so the witness hoped. We have on a previous occasion noted that the existence of such an agreement \u201cmight be a strong factor in the minds of the jurors in assessing the witness\u2019 credibility and in evaluating the worth of his testimony.\u201d Consequently, in view of the significance which the jury might have attached to this evidence and in keeping with the principles enunciated in Brady v Maryland<\/em>, and its progeny, we hold that the nondisclosure of this evidence denied defendant his right to a fair trial.74<\/sup><\/p>\n

The Court of Appeals used a mixture of federal Brady <\/em>principles and its own state constitutional law to find that the defense had a right to the prior recorded statements at trial. Note that Cwikla <\/em>came after Rosario <\/em>was decided by the Court of Appeals, but before Vilardi <\/em>was handed down. This emphasizes the importance of reading these cases together <\/em>and understanding how the Court of Appeals may have used them in its legal reasoning. Cwikla <\/em>still remains good law in New York, and certainly the spirit of disclosure <\/em>emphasized in Rosario <\/em>seemed to play a role in the Court\u2019s holding.75<\/sup> Yet, on the facts of Cwikla<\/em>, would the Supreme Court, applying solely Brady <\/em>principles, reach the same conclusion?<\/p>\n

There is at least a colorable claim that the prosecution\u2019s conduct in Cwikla <\/em>would not require reversal on federal constitutional grounds. The Court of Appeals characterized the defense\u2019s position as a hope that if the correspon\u00addence did exist, that it \u201cmight\u201d tend to expose a motive to lie on behalf of the prosecution\u2019s chief witness.76<\/sup> The Court said that the jury considering such statements could have found that there was an agreement between the prosecution and Cox, or at least the jury would believe that Cox hoped such an agreement was in place.77<\/sup><\/p>\n

If all of these factors appear highly speculative, consider the current Su\u00adpreme Court applying its Brady <\/em>\u201creasonable probability\u201d standard.78<\/sup> Can it be said that these statements, if disclosed, would have provided a reasonable probability that the result of the proceeding would have been different? Per\u00adhaps so. The New York Court of Appeals does not detail what other evidence in the case linked the defendant to the crime. Still, this appears to be a very thin reed to rely upon under a reasonable probability standard. At a mini\u00admum, it appears to be a close case under federal case law. Indeed, the Court in Cwikla <\/em>did not exclusively rely on federal law to support its holding\u2014state law principles were relied upon too. In any event, the Supreme Court has never gone as far as the Cwikla <\/em>court did at the very outset of its opinion:<\/p>\n

A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness\u2019 accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole.79<\/sup><\/p>\n

Cwikla <\/em>thus sets yet another bright-line, constitutional rule that demands strict compliance from state prosecutors. Neither Brady <\/em>nor its progeny is\u00adsues this kind of inexorable command. Cwikla <\/em>accordingly indicates that the accused has considerably more protection under state constitutional law.<\/p>\n

In People v. Bond<\/em>,80<\/sup> the Court of Appeals handed down another decision that put to rest any lingering doubt that the accused has a better chance of winning reversal under Rosario <\/em>and Vilardi <\/em>than under Brady<\/em>. In Bond<\/em>, the defendant Brian Bond was tried and convicted of depraved indifference murder.81<\/sup> The mens rea <\/em>for this offense is recklessness, not intent.82<\/sup> The prosecution\u2019s case included the testimony of Leonara Moore and Ricardo Williams,83<\/sup> who both claimed to have seen the accused and another man, Jabar Washington, point similar looking firearms toward the victim.84<\/sup> Both witnesses also claimed they heard multiple shots fired but did not actually see the shooting.85<\/sup> Finally, each witness also identified a number of other individuals who were present at the scene.86<\/sup> Moore\u2019s aunt, Carmen Green, was not among them.87<\/sup> At trial, a defense witness, and the defendant himself, would also testify that Carmen Green was not at the scene.88<\/sup><\/p>\n

Over a week into Bond\u2019s trial, the state requested a continuance to secure additional witnesses.89<\/sup> After the continuance, the state called Carmen Green to the stand.90<\/sup> Green claimed to have seen the defendant pull out a firearm, point it at the victim, and pull the trigger.91<\/sup> Green admitted she was addicted to crack cocaine.92<\/sup> More critically, she testified that detectives from NYPD questioned her niece, Moore, in Green\u2019s apartment the very night of the shooting93<\/sup> but did not question her.94<\/sup><\/p>\n

In its summation, the defense asserted that the evidence of who pulled the trigger was ambiguous and that the state\u2019s \u201cstar witness,\u201d Green, was a crack addict whose testimony at the eleventh hour was not credible.95<\/sup> Bond was subsequently convicted and, a year later, the trial court granted his request for a rehearing to determine if Green had made any prior inconsistent state\u00adments or if the police had made her any promises.96<\/sup><\/p>\n

At the hearing, Green testified about a question the police had posed to her the night of the shooting: \u201cThey asked me did I see anything and I told them no.\u201d97<\/sup> In response, the court found:<\/p>\n

This was in direct contradiction to her trial testimony. Other hearing witnesses established that during the trial, two detectives went to Carmen Green\u2019s apart\u00adment in search of her son Lamont to interview him about the shooting. At that time\u2014three years after her initial denial\u2014Carmen Green told the investiga\u00adtors that although her son was not at the apartment, she was an eyewitness to the shooting and was willing to cooperate. Leonora and her brother, Derrick Moore, both testified at the hearing that they were present.98<\/sup><\/p>\n

The trial court conceded that Green\u2019s prior inconsistent statement went to the heart of her testimony, but nonetheless refused to reverse Bond\u2019s conviction.99<\/sup> The court reasoned that there was no reasonable possibility that disclosing the prior inconsistent statement would affect the verdict, because Bond had already impeached Green on her drug habit and coming forward only at the last moment.100<\/sup> Critically, the court believed that because Bond was convicted of murder based on his depraved indifference to the value of human life, the jury \u201cmay not\u201d have relied on Green\u2019s testimony at all.101<\/sup> Essentially, the trial court said that Green\u2019s testimony that Bond acted with intent would have no bearing whatsoever on whether the defendant acted recklessly<\/em>.102<\/sup><\/p>\n

After the Appellate Division103<\/sup> affirmed the trial court\u2019s ruling, the New York Court of Appeals granted Bond leave to appeal.104<\/sup> There, the prosecution conceded that Green\u2019s previous denial of having seen the actual shooting was Brady <\/em>material and that Bond had made a specific request for that material.105<\/sup> The Court, invoking Vilardi<\/em>, noted: \u201creversal of the defendant\u2019s conviction is required if there is a \u2018reasonable possibility\u2019 that, had the material been disclosed, the result would have been different.\u201d106<\/sup><\/p>\n

The Court observed that Green\u2019s testimony could support a conclusion that the defendant acted intentionally, as opposed to recklessly, but that consider\u00adation alone was not dispositive in determining the materiality of the state\u2019s breach of its obligation to disclose the prior inconsistent statement.107<\/sup> The Court noted that Green was the sole witness for the prosecution who provided direct evidence that the accused personally fired the fatal shot himself.108<\/sup> Green\u2019s testimony was thus essential to the state\u2019s theory that Bond acted alone in shooting and killing the victim, in spite of the fact that there was evidence indicating that Mr. Washington shot the victim too.109<\/sup> The Court also noted that although Bond had the ability to attack Green\u2019s credibility based on her drug addition, he did not have the ability to expose her as a liar before the jury.110<\/sup> For these reasons, the Court of Appeals reversed the defendant\u2019s conviction and granted him a new trial.111<\/sup> The Court believed there was a reasonable possibility that had the prosecution disclosed the prior inconsistent statement the result of the proceeding may have been different. As if to emphasize the point, the Court\u2019s ruling was unanimous.112<\/sup><\/p>\n

Can it be said that the federal Brady <\/em>standard would have required reversal in the Bond <\/em>case? It is hard to imagine how. The evidence of guilt in Bond <\/em>was hardly conclusive, but is it conceivable that the state\u2019s nondisclosure here would have provided a reasonable probability <\/em>that the result of a proceeding would have been different? That is, would the evidence have the potential to \u201ccorrupt the truth seeking function of the trial process\u201d113<\/sup> such that the verdict simply cannot be counted on as reliable?<\/p>\n

In Bond<\/em>, the defense was free to impeach Green on the stand about her drug habit in general and to imply that the word of an addicted crack addict ought not to be given dispositive weight in a murder prosecution. The defense did just that.114<\/sup> The defense was also free to put before the jury Green\u2019s failure to come forward initially after the shooting and did so only after trial began. Again, the defense did precisely that.115<\/sup> Under these circumstances, evidence of a prior inconsistent statement, while certainly helpful to the defense, simply adds another theory of impeachment to Green\u2019s already thoroughly impeached testimony. Ultimately, the jury seemed to have done precisely what defense counsel implored them not to: given Green\u2019s testimony dis\u00adpositive weight. Brady <\/em>and its progeny do not seem to mandate reversal in this context. At the very least, no reasonable jurist would, on these facts, be willing to guarantee that the Supreme Court would reverse this conviction.<\/p>\n

In the fall of 2009, the New York State Bar Association\u2019s Task Force on Wrongful Convictions put out a 187-page report for the State Bar\u2019s House of Delegates to consider.116<\/sup> The report concluded that the New York Rosario\/ Vilardi <\/em>cases and their progeny provide a better chance for the accused to get his or her conviction reversed for the state\u2019s nondisclosure of exculpatory evidence than the federal Brady <\/em>protections standing alone. In pertinent part, the report cites a long list of authoritative holdings and makes bold findings based upon them:<\/p>\n

All types of information fall within the types of evidence which must be disclosed to the defense: e.g., (1) promises to a witness, actual or implied on any reading of the information (People v. Steadman, 82 N.Y. 2d 1); (2) prior criminal record or bad acts of the witnesses; (3) prior inconsistent statements of a witness (People v. Bond, 95 N.Y. 2d 840 (2000); People v. Gantt, 13 A.D. 3d 204 (1st Dep\u2019t 2004), appeal denied, 4 N.Y. 3d. 798 (2005); (4) information derived from any investigation made by an agency of the state working on the case including police reports and the results of interviews (People v. Harris, 35 A.D. 3d. 1197); (5) physical evidence including human body parts (People v. Bryce, 88 N.Y. 2d 124) and body fluid samples; (6) evidence obtained through forensic testing; (7) photographs; (8) investigative communications with other branches of government (People v. Wright, 86 N.Y. 2de 591); . . . (10) a failure to correct false testimony (People v. Steadman, 82 N.Y. 2d, 1; People v. No\u00advoa, 70 N.Y. 2d 490; People v. Ross, 43 A.D. 3d. 567 (3d Dep\u2019t 2007), appeal denied 9 N.Y. 3d 964 (2007)); (11) recantation of a statement by a witness (see People v. Baxley, 84 N.Y. 2d 208); (12) a failure to disclose the conduct of a complainant that would impeach credibility (People v. Hunter 11 N.Y. 3d 1).117<\/sup><\/p>\n

There is nothing in Brady <\/em>or its progeny that requires disclosure of mere prior bad acts of witnesses unless they rise to a materiality level, which the Rosario\/Vilardi <\/em>line of cases hold to be inadequate to protect the accused under state law. There is nothing in the Brady <\/em>jurisprudence that creates a mandatory disclosure rule for any information derived from an investigation, not just by the police, but any state agency<\/em>. The Supreme Court also has not especially (or at all, to be frank) highlighted the importance of disclosing police reports and witness interviews. Perhaps most notably, the Supreme Court certainly has not required the prosecution to turn over all body fluid samples. And, in Arizona v. Youngblood<\/em>, the Supreme Court expressly re\u00adjected the invitation to require police to preserve certain body fluid samples that might ultimately be favorable to the accused.118<\/sup><\/p>\n

The above analysis makes it evident that a defendant has a considerably greater chance of getting his conviction reversed in New York based on nondisclosure of exculpatory evidence than under Brady<\/em>. Indeed, Rosario <\/em>and Vilardi <\/em>provide concrete disclosure standards. When those two cases are coupled with the New York Court of Appeals subsequent jurisprudence, state prosecutors should be on notice that more is demanded of them than mere compliance with Brady\u2019s <\/em>universal mandate. What remains uncertain is whether the Rosario <\/em>and Vilardi <\/em>standards have a meaningful effect on prosecutors\u2019 behavior.<\/p>\n

Attorney discipline in New York and Rule 3.8 <\/strong><\/p>\n

The New York Court of Appeals has declared that \u201c[a] disciplinary pro\u00adceeding is concerned with fitness to practice law, not punishment. . . . The primary concern of a disciplinary proceeding is the protection of the public in its reliance on the integrity and responsibility of the legal profession.\u201d119<\/sup><\/p>\n

In the New York, discipline is handled by the Courts\u2014specifically, the Appellate Division of the Supreme Court\u2014not the private bar.120<\/sup> The Appel\u00adlate Division is divided into four \u201cdepartments\u201d that each have jurisdiction over separate parts of New York state.121<\/sup> The First Department covers New York County and the Bronx, while the Second Department covers Brooklyn (Kings County), Queens, and Staten Island (Richmond County). Accordingly, the first two departments are collectively responsible for the discipline of all lawyers practicing in New York City,122<\/sup> home to some of the largest prosecu\u00adtion offices in the country.123<\/sup><\/p>\n

New York Rule of Professional Conduct 3.8(b) provides:<\/p>\n

A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.124<\/sup><\/p>\n

The operative language seems to impose a heavier burden on prosecutors than the New York Court of Appeals case law does: it may mean that any\u00adthing <\/em>tending to negate the guilt of the accused must be disclosed.125<\/sup> There is nothing in the rule\u2019s language indicating that the evidence or information needs to be of the type that would, if not disclosed at trial, provide a \u201creason\u00adable possibility\u201d that the result of the proceeding would have been different. Comparatively, Rule 3.8(c), (d), and (e) pertain to what a prosecutor should do when he or she learns of evidence after <\/em>a defendant is convicted that cre\u00adates a reasonable likelihood that the defendant did not commit the offense.126<\/sup> This article focuses on 3.8(b).<\/p>\n

While mandates that seek to secure a wrongfully convicted defendant\u2019s release from prison are certainly of crucial importance, Rule 3.8(b)\u2019s thrust\u2014at least, theoretically\u2014could prevent a wrongful conviction in the first instance. It is impossible to know for certain how much the Rule actu\u00adally makes prosecutors disclose evidence that Brady <\/em>and even the Rosario\/ Vilardi <\/em>progeny would not mandate revealing. If the rule\u2019s language has any tendency to increase proper disclosure, it should be celebrated. For example, a 2006 survey indicated that for the Brooklyn District Attorney\u2019s Office, \u201cDiscovery by Stipulation,\u201d what is also known as \u201copen file discovery,\u201d is the norm in misdemeanor cases.127<\/sup> Rule 3.8(b) has not led to the same culture of disclosure in other offices, however. In Queens, prosecutors generally fol\u00adlow early open file discovery but only if the defense waives certain pre-trial hearings.128<\/sup> In the Manhattan District Attorney\u2019s Office, early discovery only proceeded via a defense motion and a Voluntary Disclosure Form (\u201cVDF\u201d) in response.129<\/sup> Finally, in the Bronx, the discovery policy was a \u201cscattershot\u201d that varied between both individual prosecutors and the bureaus in the District Attorney\u2019s Office where they were assigned.130<\/sup><\/p>\n

Besides Rule 3.8(b)\u2019s varying effect on both individual prosecutors and different district attorney\u2019s offices in general, there is a far greater cause for concern.<\/p>\n

Discipline for breach, or the lack thereof <\/strong><\/p>\n

If the New York Court of Appeals was correct when it stated that the goal of attorney discipline is not to punish,131<\/sup> the results of an examination by Joel Rudin, an attorney who has represented wrongfully convicted individuals in civil lawsuits, can hardly be surprising.132<\/sup> Rudin informed the New York Bar Association\u2019s Task Force on Wrongful Convictions that he had obtained the personnel records of prosecutors in several counties between the late 1970s and 2003.133<\/sup> In the 200 cases Rudin obtained, courts found that the prosecu\u00adtors involved engaged in general discovery violations as well as more blatant offenses, such as the use of false or misleading testimony and employing improper arguments in summation.134<\/sup> Rudin found only two <\/em>prosecutors involved with those approximately 200 cases who were subjected to formal internal discipline in their own offices.135<\/sup> Even if Rudin\u2019s review is merely anecdotal and not a representative sample\u2014though it may well be the latter considering the roughly twenty-five-year time period and results from offices across the state\u2014it indicates that there may be a staggeringly low percentage of prosecutors who are internally disciplined even after the judiciary made a formal finding of prosecutorial misconduct<\/em>.136<\/sup><\/p>\n

Each Appellate Division has within its court a disciplinary committee with attorneys and staff to investigate and prosecute complaints of ethical violations.137<\/sup> Each Division also has specific procedures for doing so.138<\/sup> Inves\u00adtigations are initiated by the filing of a formal complaint by the disciplinary committee sua sponte<\/em>.139<\/sup><\/p>\n

Initially, the committee seeks to determine if the attorney\u2019s alleged mis\u00adconduct is serious enough to merit bringing a disciplinary proceeding.140<\/sup> If not, the investigation is closed and complaint is dismissed.141<\/sup> However, if the case warrants disciplinary action, the attorney\u2019s conduct may be brought before the court with the potential for a formal adversarial hearing.142<\/sup> Only the Appellate Division judges or their designated subcommittees have the power to issue a public censure, a suspension, or outright disbarment.143<\/sup><\/p>\n

If the investigation reveals \u201cclear and convincing evidence\u201d that the at\u00adtorney has committed misconduct but it is not serious enough to warrant formal charges before the court, the disciplinary committee itself may privately reprimand the attorney, caution the attorney, or recommend con\u00adtinuing education without formal leave from Appellate Division Judges or a designated subcommittee.144<\/sup> Certainly there is reason to believe that such a considerable investment of resources is more likely to keep prosecutors alert and lean toward disclosure in close cases, with at least a theoretical threat from a vast disciplinary authority backed by the formal judiciary.<\/p>\n

Because the Appellate Division\u2019s disciplinary proceedings are made pub\u00adlic only when formal findings of certain types of attorney misconduct are made,145<\/sup> it is impossible to know for certain how aggressively allegations of prosecutorial misconduct are being investigated, even if the charges turn out to be baseless. Furthermore, a private reprimand\u2014as opposed to public censure, suspension, or disbarment\u2014is never disclosed to the public.146<\/sup> Rather, it is simply a professional embarrassment (albeit a considerable one that perhaps could subject any future complaints against the attorney to additional scrutiny by disciplinary authorities). The general citizenry would not ordinarily learn of it. In addition, the disciplinary process is a long and highly complex one. Thus, the proceedings do not usually result in attorney discipline. However, because these proceedings are often out\u00adside of public scrutiny (unless particularly harsh discipline, such as public censure, suspension or disbarment, is imposed), it is hard to discern how much political courage disciplinary committee attorneys have to confront prosecutors for misconduct.<\/p>\n

There is another problem in the enforcement process. Conversations with lawyers at the disciplinary committees across the state revealed that they often only come across potential violations of the Rules of Professional Con\u00adduct through newspaper articles, insider knowledge of committee members, word of mouth, judicial decisions and orders, or the filing of a complaint by a former client, adverse party, another lawyer, or a member of the public.147<\/sup> Although the judicial rulings are a source of information about prosecutors breaching their discovery obligations, there is no standardized procedure for the Appellate Division to send cases to the disciplinary committees.148<\/sup> In other words, law clerks for Appellate Division judges simply have no duty to notify the disciplinary committees of judicial opinions regarding prosecutorial misconduct.<\/p>\n

It is difficult to determine how many Rosario\/Vilardi <\/em>violations are over\u00adlooked without any formalized reporting system between Appellate Division, who uncover prosecutorial misconduct, and disciplinary committee staff attorneys charged with enforcing the rules that bind prosecutors. This lack of communication only looms larger when one considers that disciplinary committees are charged with disciplining not just prosecutors who breach their duties, but are collectively responsible for sanctioning any member of the bar when appropriate.<\/p>\n

Closing thoughts <\/strong><\/p>\n

Those wrongfully convicted in New York due to a prosecutor\u2019s breach of his or her obligations to disclose exculpatory evidence have a better chance of having their convictions reversed under the Rosario\/Vilardi <\/em>line of cases than under the bare Brady <\/em>protections that bind prosecutors nationally. But the New York Court of Appeals\u2019 meaningful rejection of Brady\u2019s <\/em>materiality standard may only provide cold comfort to those who are wrongfully con\u00advicted149<\/sup> and languishing behind bars, only to be released years later when the violations are revealed.<\/p>\n

Further, there is at least some empirical research suggesting that prosecu\u00adtor\u2019s offices across the state are unwilling to sanction their own prosecutors when they cross ethical lines. Although Rule 3.8(b)\u2019s operative language has considerable force, and the disciplinary committees are staffed by ex\u00adperienced attorneys, the procedural maze and gaps in communication may hamper efforts to deter prosecutors from breaching their discovery obliga\u00adtions while the case is still ongoing. To be sure, New York has taken a step in the right direction. Still, the gaps in discipline ought to be closed and the process made more transparent. If not, there remains a significant danger that people will be wrongfully convicted because prosecutors breach their discovery obligations. There must be the dual threat of retrial for the ac\u00adcused and <\/em>a serious, credible, and imminent threat of professional sanction for the prosecutor.<\/p>\n

___________________________<\/p>\n

NOTES<\/p>\n

    \n
  1. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).<\/li>\n
  2. Joshua Dressler & AlanC. Michaels, UnderstandingCriminal Procedure: Volume 2: Adjudication143 (4th ed. 2014).<\/li>\n
  3. 373 U.S. 83 (1963).<\/li>\n
  4. Id. <\/em>at 87.<\/li>\n
  5. See <\/em>Dressler & Michaels, supra note 2.<\/li>\n
  6. Id. <\/em><\/li>\n
  7. Id. <\/em><\/li>\n
  8. Id. <\/em><\/li>\n
  9. Id. <\/em><\/li>\n
  10. Id. <\/em><\/li>\n
  11. Dressler & Michaels, supra note 2 (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)).<\/li>\n
  12. See id. <\/em>at \u00a7 7.02 Elements of the Brady <\/em>Rule (citing Banks v. Dreke, 540 U.S. 668, 691 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999))).<\/li>\n
  13. Brady<\/em>, 373 U.S. at 88.<\/li>\n
  14. 405 U.S. 150 (1972).<\/li>\n
  15. Id. <\/em><\/li>\n
  16. Id. <\/em>Strangely enough, the Court has held that in the plea bargaining context, the accused is not entitled to impeachment material, although they are still entitled to evidence that directly exculpates them. See <\/em>United States v. Ruiz, 536 U.S. 622, 630-32 (2002). Since a discussion of plea bargaining only adds to an already complex U.S. Supreme Court jurisprudence in this area, I omit it for clarity\u2019s sake.<\/li>\n
  17. United States v. Agurs, 427 U.S. 97, 111 (1976).<\/li>\n
  18. Id. <\/em>at 111.<\/li>\n
  19. Id. <\/em>at 110.<\/li>\n
  20. See <\/em>Dressler & Michaels, supra note 2, <\/em>at 146 (particularly \u00a7 7.02 Elements of the Brady Rule).<\/li>\n
  21. Agurs<\/em>, 427 U.S. at 113.<\/li>\n
  22. Dressler & Michaels, supra note 2, at 147 (quoting from United States v. Bagley, 473 U.S. 667, 682 (1985)); see also id. at 146. During their discussion on Constitutional Discovery, Dressler and Michaels seem to take the Bagley test as a given. They label it a holding, even though this part of the opinion may only be a plurality. In any event, the prominence it is given by these two highly respected scholars is reason enough to emphasize its language in this paper.<\/li>\n
  23. See Dressler & Michaels, supra note 2, at 148 (particularly \u00a7 7.02 Elements of the Brady Rule).<\/li>\n
  24. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).<\/li>\n
  25. See <\/em>Dressler & Michaels, supra <\/em>note 2, at 146 (particularly \u00a7\u00a7 7.05, 7.06). 163<\/li>\n
  26. Bagley<\/em>, 473 U.S. at 702 (Marshall, J., dissenting).<\/li>\n
  27. Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of <\/em>Brady v. Maryland, 33 McGeorge L. Rev. 643, 652 (2002).<\/li>\n
  28. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger<\/em>, 65 N.C. L. Rev. 693, 697 (1987).<\/li>\n
  29. Andrew Martin, The Prosecution\u2019s Case Against DNA, <\/em>N.Y. Times Magazine (Nov. 25, 2011), http:\/\/www.nytimes.com\/2011\/11\/27\/magazine\/dna-evidence-lake-county.html.<\/li>\n
  30. Daniel S. Medwed, ProsecutionComplex: America\u2019s Race to Convict and its Impact onthe Innocent 46 (2012).<\/li>\n
  31. Id. <\/em>at page 43.<\/li>\n
  32. Id. <\/em><\/li>\n
  33. Id. <\/em><\/li>\n
  34. 76 N.Y.2d 67 (N.Y. 1990).<\/li>\n
  35. Id. <\/em><\/li>\n
  36. Id. <\/em>at 69.<\/li>\n
  37. Id. <\/em>at 70.<\/li>\n
  38. Id. <\/em><\/li>\n
  39. People v. Vilardi, 76 N.Y.2d 67, 70 (N.Y. 1990).<\/li>\n
  40. Id. <\/em><\/li>\n
  41. Id. <\/em><\/li>\n
  42. Id. <\/em>at 77.<\/li>\n
  43. Id. <\/em>at 76-77.<\/li>\n
  44. People v. Vilardi, 76 N.Y.2d 67, 77 (N.Y. 1990).<\/li>\n
  45. Id. <\/em><\/li>\n
  46. Id.<\/em>at 77-78.<\/li>\n
  47. Id. <\/em><\/li>\n
  48. Id. <\/em><\/li>\n
  49. 9 N.Y.2d 286 (N.Y. 1961).<\/li>\n
  50. Id. <\/em>at 287-88.<\/li>\n
  51. Id. <\/em>at 288.<\/li>\n
  52. Id. <\/em><\/li>\n
  53. Id. <\/em><\/li>\n
  54. Id. <\/em><\/li>\n
  55. People v. Rosario, <\/em>9 N.Y.2d 286, 288 (N.Y. 1961).<\/li>\n
  56. Id. <\/em><\/li>\n
  57. Id. <\/em>at 289.<\/li>\n
  58. Id. <\/em><\/li>\n
  59. Id. <\/em><\/li>\n
  60. Id. <\/em><\/li>\n
  61. People v. Rosario, <\/em>9 N.Y.2d 286, 290 (1961).<\/li>\n
  62. Id. <\/em><\/li>\n
  63. Id. <\/em>at 290-91.<\/li>\n
  64. See \u201cRosario Material\u201d in DWI Law, <\/em>Xavier DWIDefense, https:\/\/www.nysdwi.com\/ rosario-material-in-dwi-law (last visited Feb. 20, 2018). A simple Google search for \u201cRosario Material\u201d yielded over 34 million results in less than half a second on multiple occasions. Many of these articles are the self-serving work of criminal defense lawyers buffering their own pedigrees, but the persistence of the term\u2019s use is striking. Still, other results are law review articles or similar scholarly work. In any event, again, this nota\u00adtion doesn\u2019t seek to vouch for the merits of each writer\u2019s take of what Rosario material is; just to recognize its prominence as a colloquial term.<\/li>\n
  65. 46 N.Y.2d 434 (N.Y. 1979).<\/li>\n
  66. Id. <\/em>at 439.<\/li>\n
  67. Id. <\/em><\/li>\n
  68. Id. <\/em><\/li>\n
  69. Id. <\/em><\/li>\n
  70. Id. <\/em>(emphasis added).<\/li>\n
  71. People v. Cwikla, 46 N.Y.2d 434, 439 (N.Y. 1979).<\/li>\n
  72. Id. <\/em>at 439-40.<\/li>\n
  73. Id. <\/em>(internal citations omitted)<\/li>\n
  74. Id. <\/em>(internal citations omitted).<\/li>\n
  75. Id. <\/em><\/li>\n
  76. People v. Cwikla, 46 N.Y.2d 434, 439 (N.Y. 1979).<\/li>\n
  77. Id. <\/em>at 440.<\/li>\n
  78. See <\/em>Dressler & Michaels, supra <\/em>note 2.<\/li>\n
  79. People v. Cwikla, 46 N.Y.2d 434, 438 (N.Y. 1979).<\/li>\n
  80. 95 N.Y.2d 840 (N.Y. 2000).<\/li>\n
  81. Id. <\/em>at 842.<\/li>\n
  82. See <\/em>N.Y. Penal Law \u00a7 125.25(2) (2006).<\/li>\n
  83. People v. Bond, 95 N.Y.2d 840, 842 (N.Y. 2000).<\/li>\n
  84. Id. <\/em>at 841.<\/li>\n
  85. Id. <\/em><\/li>\n
  86. Id. <\/em><\/li>\n
  87. Id. <\/em><\/li>\n
  88. Id. <\/em><\/li>\n
  89. People v. Bond, 95 N.Y.2d 840, 842 (N.Y. 2000).<\/li>\n
  90. Id. <\/em><\/li>\n
  91. Id. <\/em><\/li>\n
  92. Id. <\/em><\/li>\n
  93. Id. <\/em><\/li>\n
  94. Id. <\/em><\/li>\n
  95. People v. Bond, 95 N.Y.2d 840, 842 (N.Y. 2000).<\/li>\n
  96. Id. <\/em><\/li>\n
  97. Id. <\/em><\/li>\n
  98. Id. <\/em>at 842-43.<\/li>\n
  99. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).<\/li>\n
  100. Id. <\/em><\/li>\n
  101. Id.<\/em><\/li>\n
  102. Id. <\/em><\/li>\n
  103. Id. <\/em>The Appellate Division is the intermediate state appellate court in New York. It is composed of four \u201cdepartments.\u201d The Court does not say so explicitly in this passage, but since this conviction was in Brooklyn, and the 2nd Department has jurisdiction over Brooklyn, Queens and some suburban counties in the New York tri-state area, it is in all likelihood the 2nd Department affirmed the trial court\u2019s conclusion. See Appellate Divisions<\/em>, NYCourts.gov, http:\/\/www.nycourts.gov\/courts\/appellatedivision.shtml (last visited Feb. 20, 2018).<\/li>\n
  104. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).<\/li>\n
  105. Id. <\/em><\/li>\n
  106. Id. <\/em>(citing People v. Vilardi, 76 N.Y.2d 67, 77 (N.Y. 1990)).<\/li>\n
  107. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).<\/li>\n
  108. Id. <\/em><\/li>\n
  109. Id. <\/em><\/li>\n
  110. Id. <\/em><\/li>\n
  111. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).<\/li>\n
  112. Id. <\/em><\/li>\n
  113. Agurs<\/em>, 427 U.S. at 104. This is part of the majority opinion delivered in this case by Justice Stevens, joined by Chief Justice Burger and Justices Stewart, White, Blackmun, Powell and Rehnquist.<\/li>\n
  114. Id. <\/em>at 103-04.<\/li>\n
  115. Id. <\/em><\/li>\n
  116. New York State Bar Association, Task Force onWrongful Convictions (Apr. 4, 2009), available at <\/em>https:\/\/www.nysba.org\/WorkArea\/DownloadAsset.aspx?id=26663 [hereinafter Wrongful Convictions].<\/li>\n
  117. Id. <\/em>at 24.<\/li>\n
  118. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).<\/li>\n
  119. In re <\/em>Rowe, 80 N.Y.2d 336, 342 (N.Y. 1992) (citing Matter of Levy, 37 N.Y.2d 279, 282 (N.Y. 1975); Matter of Kahn, 38 A.D.2d 115, 124, aff\u2019d <\/em>31 N.Y.S.2d 752 (N.Y. App. Div. 1972)).<\/li>\n
  120. Attorney Matters: How to Make a Complaint against a Lawyer<\/em>, Appellate Division, Second Judicial Department, http:\/\/www.nycourts.gov\/courts\/ad2\/attorneymat\u00adters_ComplaintAboutaLawyer.shtml#_Professional_Discipline (last visited Sept. 24, 2017).<\/li>\n
  121. See Appellate Divisions<\/em>, supra <\/em>note 103.<\/li>\n
  122. Id. <\/em><\/li>\n
  123. The Kings County District Attorney\u2019s Office serves a population of over 2.5 million people. The Brooklyn DA claims to be one of the largest prosecution offices in the country on its website. See Legal Recruiting<\/em>, Kings County District Attorney\u2019s Office, http:\/\/www.brooklynda.org\/legal-recruiting\/ (last visited Sept. 24, 2017). Queens has a population well over 2 million; the Bronx is approaching 1.5 million, and Manhattan\u2019s population is well over 1.5 million. See Current and Projected Populations: Current Estimates of New York City\u2019s Population for July 2016<\/em>, NYCDepartment City Planning, http:\/\/www.nyc.gov\/html\/dcp\/html\/census\/popcur.shtml (last visited Sept. 24, 2017).<\/li>\n
  124. Part 1200 Rules of Professional Conduct R. 3.8(b) (2017), available at <\/em>http:\/\/www. nycourts.gov\/RULES\/jointappellate\/NY-Rules-Prof-Conduct-1200.pdf.<\/li>\n<\/ol>\n

    rosario<\/em><\/strong>, vilardi<\/em>, and their progeny<\/strong>166 national lawyers guild review <\/strong><\/p>\n

      \n
    1. Id. <\/em>(emphasis added).<\/li>\n
    2. The New York County Lawyers\u2019 Association, Discovery inNew York Criminal Courts: Survey Report & Recommendations (2006), available at <\/em>https:\/\/www.nycla.org\/siteFiles\/Publications\/Publications227_0.pdf (where the Brooklyn DA\u2019s practice is under Kings County. See id. <\/em>at 8).<\/li>\n
    3. Id. <\/em>at 9.<\/li>\n
    4. Id.<\/em><\/li>\n
    5. Id. <\/em>at 10.<\/li>\n
    6. See In re <\/em>Rowe, supra <\/em>note 119.<\/li>\n
    7. See <\/em>Wrongful Convictions, supra <\/em>note 116, at 31.<\/li>\n
    8. Id.<\/em><\/li>\n
    9. Id.<\/em><\/li>\n
    10. Id.<\/em><\/li>\n
    11. Id.<\/em><\/li>\n
    12. See <\/em>Wrongful Convictions, supra <\/em>note 116, at 34.<\/li>\n
    13. Id. <\/em>(internal citations omitted).<\/li>\n
    14. Id. <\/em>(internal citations omitted).<\/li>\n
    15. Id. <\/em>(internal citations omitted).<\/li>\n
    16. See <\/em>Wrongful Convictions, supra <\/em>note 116, at 34 (internal citations omitted).<\/li>\n
    17. Id. <\/em>(internal citations omitted).<\/li>\n
    18. Id. <\/em>(internal citations omitted).<\/li>\n
    19. Id. <\/em>(internal citations omitted).<\/li>\n
    20. Id.<\/li>\n
    21. See id. <\/em>(internal citations omitted).<\/li>\n
    22. See id. <\/em>at 33 (internal citations omitted).<\/li>\n
    23. Id.<\/li>\n
    24. See Wrongful Convictions, supra note 116, at 34-35.<\/li>\n
    25. Whether or not they are factually innocent, if the prosecution obtains a conviction in a trial during which they breach their discovery obligations, the defendant has been wrongfully convicted in the legal sense, being denied something\u2014exculpatory evidence as defined in the Rosario<\/em>\/Vilardi <\/em>line of cases\u2014that they have a legal right to in New York State.<\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"

      Daniel Kelly Daniel Kelly is an associate at LeClair Ryan, P.C., working out of the New York City office. He is licensed to practice law in New York and New Jersey and admitted to the bars of the United States District Courts for the Southern and Eastern Districts of New York. His practice areas include […]<\/p>\n","protected":false},"author":4991,"featured_media":0,"menu_order":76,"comment_status":"closed","ping_status":"closed","template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":"","_members_access_role":[],"_members_access_error":""},"categories":[],"tags":[],"issuem_issue":[111],"class_list":["post-275","article","type-article","status-publish","format-standard","hentry","issuem_issue-nlg-review-vol-74-no-3-fall-2017","post"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t