Saturday, March 30, 2013
Good morning everyone.
I realized at approximately 3:30 am this morning that I forgot to mention several extremely important points in the articles and comments that I have posted recently about the Brady rule and the timing of the exculpatory evidence disclosures to the defense.
The Brady rule imposes an obligation on the lead prosecutor and case agent in each case to periodically review the case file for the specific purpose of identifying exculpatory evidence. Since police investigations typically continue until a final order terminates a case after verdict and sentencing, a case file will continue to grow documenting the investigation and the discovery of new information. Prosecutors also add their stuff to the file. This feature of the criminal justice system frustrates judicial efforts to establish a uniform drop-dead deadline by which the prosecution must disclose exculpatory evidence to the defense in any given case.
Therefore, the general practice is to disclose exculpatory evidence to the defense as soon as practicable after it has been obtained and identified. One might reasonably expect to see multiple disclosures of exculpatory evidence prior to trial and even during trial.
A major exception to this practice was developed to deal with unusual or exceptional circumstances that warrant delaying the disclosure of exculpatory evidence to the defense until the defense must have it to prepare for a deposition, pretrial hearing or the trial.
We have that situation in this case due to the well documented need to protect the privacy and safety of W8 (Dee Dee) from harassment and intimidation by the defendant’s supporters.
The vast majority of Brady violations involve situations where the prosecution had exculpatory evidence, but never disclosed it to the defense. In most cases a new team of defense investigators independently discovers the exculpatory evidence several years later during the run-up to filing a state or federal habeas petition after the judgment and sentence of the trial court was affirmed by appellate courts.
Tthe Brady rule requires a showing that the exculpatory evidence withheld from the defense was so important that the outcome of the trial likely would have been different, if the prosecution had disclosed it to the defense before trial. In other words, absent a showing of materiality, the prosecution’s failure to disclose exculpatory evidence in any given case will be deemed harmless error.
Finally, the importance or materiality of that exculpatory evidence relative to rest of the evidence admitted at trial cannot be determined until after the trial has concluded.
For this reason alone, the defense claim that the prosecution violated the Brady rule should be summarily dismissed as premature, impossible to determine, and frivolous.
Nevertheless, let us briefly review the available facts to see if the timing of the prosecution disclosure disadvantaged or prejudiced the defense.
There is no evidence that it did.
ASA John Guy contacted MOM the evening before the court hearing in early March and told him that there were no hospital records to confirm Dee Dee’s statement that she did not attend the funeral and the wake because she was in the hospital.
Because of that disclosure, the judge ruled that the defense motion for a subpoena duces tecum of Dee Dee’s hospital records was moot.
The defense deposition of Dee Dee a week later could not have been adversely affected by the timing of the disclosure because the defense had the information for a week and used it to question Dee Dee.
The trial is still three months down the road, so I do not see any possibility of prejudice to the defense from the timing of the disclosure.
In conclusion, I do not see any prejudice to the defense caused by the delay between the defense request for the hospitalization records last fall and the recent disclosure.
As I have already mentioned, the prosecution has legitimate reality-based concerns to protect the privacy and safety of Dee Dee. I refer of course to the concerted effort by the defendant’s supporters to successively intimidate two girls whom they mistakenly believed to be the real Dee Dee.
Therefore, the delay in disclosing the evidence requested by the defense not only failed to harm the defense, it was reasonable and necessary to protect Dee Dee.
For all of these reasons, the defense motion is frivolous and should be denied.
Finally, the responses by the two reporters for the Orlando Sentinel and the national media to BDLR’s response to the defendant’s frivolous motions demonstrated that they have not yet grasped the facts in this case and the simple truth that the defendant has no defense.
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