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A N 8 D 8 B 18 AR CE www. NYLJ.com SIN Volume 264—NO. 106 Wednesday, December 2, 2020 Outside Counsel Due Process Protections Act Sends a Message to the Government by Reed Brodsky, Avi Weitzman and David Salant

n Oct. 21, 2020, President Trump signed into law the Due Process Protections Act (DPPA) requiring federal judges to issue an order at theO outset of all criminal proceedings that “confirms” the government’s Brady disclosure obligations and the “possible consequences” of Brady violations. The next week, judges in the Southern Dis- trict of New York (SDNY) began issuing written orders directing the government to make the Brady disclosures and warn- ing of the potential consequences for therefore prove a useful tool for federal that is favorable to the accused and is failing to comply with the orders. The criminal practitioners. known to the government. The Brady DPPA’s new requirements are especial-  obligation also requires prosecutors to ly timely in light of recent high-profile The ‘Brady’ Obligation To disclose what is known as Giglio mate- Disclose Exculpatory Brady-related controversies arising in rials—information that can be used to the SDNY and elsewhere. While the In the landmark case of Brady v. impeach the testimony of a govern- DPPA does not alter the government’s Maryland, 373 U.S. 83 (1963), the U.S. ment witness—sufficiently in advance substantive Brady obligations, it sends Supreme Court recognized that, to pro- of trial to permit its effective use by the a meaningful message to federal pros- tect individuals’ Constitutional rights defense at trial. Giglio v. United States, ecutors, lays the foundation for poten- to due process and a fair trial, pros- 405 U.S. 150 (1972). These are continuing tial contempt-of-court and sanctions ecutors must disclose to the defense obligations that apply to materials that recourse for Brady violations, and could all known information “favorable to an become known to the government, even accused” that is “material either to guilt after trial, and even if the government

Reed Brodsky and Avi Weitzman are litigation or punishment.” Brady and its progeny does not credit them. The suppression partners in the New York office of Gibson, Dunn & establish that prosecutors have an affir- of favorable information violates a defen- Crutcher and former Assistant U.S. Attorneys in the mative duty to seek out and disclose dant’s right to due process irrespective Southern District of New York. David Salant is a litigation associate at the firm. to the defense all material evidence of prosecutors’ good or bad faith and Wednesday, December 2, 2020 may justify setting aside a . The Due Process Protections Act on their open criminal dockets imple- The Supreme Court has recognized and Related Court Orders menting the requirements of the DPPA. that a “prudent prosecutor will resolve Most of these orders are substantially doubtful questions in favor of disclo- The DPPA amends Federal Rule of identical, indicating the form of order sure.” United States v. Agurs, 427 U.S. 5, which governs likely to be used by many SDNY judges 97, 108 (1976). This seemingly clear a defendant’s initial appearance before going forward. They generally summa- principle has not always been strictly the court, to insert a new Rule 5(f). New rize the relevant Brady and Giglio law; followed. For example, in a number of Rule 5(f) provides: state that the government must disclose recent high-profile white collar cases, In all criminal proceedings, on the Brady materials to the defense “prompt- courts have found the federal prosecu- first scheduled court date when both ly after its existence becomes known to tors had failed to timely disclose Brady prosecutor and defense counsel are the Government so that the defense may or Giglio material in their possession. present, the judge shall issue an oral make effective use of the information in And a study conducted by the National and written order to prosecution and the preparation of its case”; and enumer- Registry of concluded that defense counsel that confirms the ate potential consequences for failure to half of all murder exonerations between disclosure obligation of the prosecu- comply with the order, including grant- 1987 and 2017 involved the govern- tor under Brady v. Maryland, 373 U.S. ing a continuance, imposing evidentiary ment’s concealment of exculpatory 83 (1963) and its progeny, and the sanctions, imposing sanctions on any evidence at trial. responsible lawyer for the government, Ultimately, a prosecutor’s failure to The recently issued ‘Brady’ orders and dismissing charges before trial or disclose such evidence is difficult to vacating after a trial or heighten the emphasis on the uncover, despite its lasting implications guilty plea. on a criminal defendant’s rights and a significance of ‘Brady’, reflecting In addition to highlighting the pros- trial’s fairness. Various remedial mea- a recognition that something ecutors’ obligations to produce Brady sures have been proposed and debated, has gone amiss such that such and Giglio material, the written orders such as revamped training of prosecu- reminders to prosecutors are by SDNY judges take a stance on the tors’ disclosure obligations; imposition even necessary. important issue of the prosecutors’ of systematic rules that would best duty to collect and review documents ensure such materials are timely dis- possible consequences of violating outside their possession. To establish closed; adoption of an “open-file” policy such order under applicable law. what potential Brady material is “known permitting the defense broad access to The statute also requires each judicial to the government” and must therefore government’s case files; the expanded council—the regional governing bodies be disclosed, the SDNY orders define use of specialized Brady “clean teams” of each federal circuit’s judiciary—to “the government” to include “all federal to review the government’s files for promulgate a model order that a district state, and local law enforcement officers potential Brady and Giglio material; an court “may use” for these purposes “as and other officials who have participated exception to law enforcement and pros- it determines appropriate.” in the investigation and prosecution of ecutorial immunity for Brady violations; The DPPA was proposed in the wake of the offense or offenses with which the and a strengthened requirement that the DOJ’s suppression of Brady material defendant is charged.” This formulation prosecutors must have contempora- during the 2008 prosecution of the late is arguably broader than the case law neous notes of all witness statements, U.S. Senator from Alaska, , requires, as some cases have extend- irrespective of the statements’ consis- for false statements associated with ed the Brady disclosure obligation to tency with prior statements or relevance alleged ethics violations, and passed include information in the possession to the case. While the DDPA does not by unanimous consent in both the U.S. of a “member of the prosecution team” impose these systematic changes, it Senate and House of Representatives. or those who conducted a “joint inves- nonetheless brings this important dis- The DPPA became law on Oct. 21, tigation” with the prosecutors. See, closure obligation to the fore of federal 2020. The following week, federal judges e.g., United States v. Morgan, 302 F.R.D. criminal proceedings. in the SDNY began issuing written orders 300, 304 (S.D.N.Y. 2014). By imposing an Wednesday, December 2, 2020 obligation to disclose all Brady mate- the conviction. Although not expressly Ultimately, while the DPPA does not rial known to any “officers and other identified in the recent SDNY orders, actually change or expand governing officials who have participated in the there is the possibility that failure to Brady law, it sends a meaningful mes- investigation and prosecution,” the comply with the order could also sub- sage to the government. The recent- SDNY Brady orders extend the duty to ject the government or individual pros- ly issued Brady orders heighten the identify and collect potential Brady and ecutors to the “sanction” of contempt emphasis on the significance of Brady, Giglio material beyond just “members of court, which could have the effect reflecting a recognition that something of the prosecution team.” of civil or even criminal consequences has gone amiss such that such remind- Similar written orders have also been for contemnors. ers to prosecutors are even neces- issued in other judicial districts besides Notably, the recently issued Brady sary. These reminders are especially the SDNY, although a nationwide search orders in the SDNY do not identify a timely in light of serious Brady con- as of this writing indicates no compa- deadline for the production of Brady cerns recently raised by a number of rable district-wide action has yet been and Giglio material, other than to order SDNY judges. In one of these cases, taken. that Brady material must be disclosed the U.S. Attorney’s Office in the SDNY “promptly after its existence becomes acknowledged being “responsible for Likely Effects of the DPPA substantial failures” in its handling of The DPPA does not purport to and has publicly change federal prosecutors’ substan- While the DPPA does not alter “committed” to making “improvements tive obligations under Brady, Giglio, or the government’s substantive to [its] policies, staffing, training, and related governing law. It simply places ‘Brady’ obligations, it sends a technology.” United States v. Nejad, No. the matter front and center at the start meaningful message to federal 18 Cr. 224 (AJN), ECF No. 390 at 1, 4–5 of all criminal proceedings by crys- prosecutors, lays the founda- (S.D.N.Y. Oct. 30, 2020). These are wel- talizing the government’s obligations tion for potential contempt-of- come reforms, and Congress’s passage into an order on every federal criminal of the DPPA should serve as a further docket. Issuance of a “Brady order” at court and sanctions recourse reminder that the prosecution’s “inter- the outset of every criminal proceeding for ‘Brady’ violations, and could est … in a criminal prosecution is not may also expand the district court’s therefore prove a useful tool for that it shall win a case, but that justice flexibility to address Brady issues federal criminal practitioners. shall be done.” Berger v. United States, with remedies short of dismissal or 295 U.S. 78, 88 (1935). vacatur of a jury . Courts often known the Government,” and that conclude that, while the government Giglio information “must be disclosed should have disclosed alleged Brady sufficiently in advance of trial in order or Giglio materials earlier, the nondis- for the defendant to make effective use closure did not materially prejudice of it at trial.” By contrast, a number of the proceedings—an unenviable coun- judicial districts have adopted local terfactual analysis that asks courts to rules requiring certain materials are predict how the jury may have reacted disclosed to the defense at a particular to an undisclosed piece of exculpa- time, ranging from at arraignment, to 28 tory or impeachment evidence. The days after arraignment, to reasonably recent Brady orders issued in the SDNY promptly upon . The DPPA’s identify a series of potential remedies requirement that each circuit’s judi- for failure to comply with the order, cial council promulgate a model Brady including a trial continuance, evi- order (to be used at each court’s dis- dentiary sanctions, sanctions on the cretion) may have the additional effect Reprinted with permission from the December 2, 2020 edition of the NEW YORK responsible prosecutor, as well as dis- of harmonizing Brady disclosure stan- LAW JOURNAL © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 missal of the indictment or vacatur of dards within and across districts. or [email protected]. # NYLJ-12012020-467960