The People, Appellant,v.Mark Garrett, Respondent.BriefN.Y.June 3, 2014To Be Argued By Steven A. Feldman 30 Minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. 2013-00232 MARK GARRETT, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT MARK GARRETT FELDMAN and FELDMAN Attorneys at Law 626 Reckson Plaza West Tower, 6 Floorth Uniondale, NY 11556 (516) 522-2828 Steven A. Feldman, Arza Feldman Attorneys for Mark Garrett of counsel TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 POINT I: THE SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT CORRECTLY RULED THAT MARK GARRETT’S §440 MOTION TO SET ASIDE HIS CONVICTION, ON THE GROUND THAT THE PEOPLE HAD FAILED TO DISCLOSE BRADY MATERIAL, SHOULD HAVE BEEN GRANTED . . . . . . . . . . . . . . . . . . 12 CONCLUSION: THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE, SECOND DEPARTMENT SHOULD BE AFFIRMED . . . . . . . . . . . . . . . . . . . . . . . . . . 41 AFFIDAVIT OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 i TABLE OF AUTHORITIES FEDERAL CASES Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) . . . . . . . . . . . . . . . . . . . . 12, 13 Calley v. Callaway, 519 F.2d 184 (5 Cir. 1975) . . . . . . . .th 22 Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) . . . 13 Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966) . . . . . . . . . . . . . . . . . . 22 Garrett v. Smith, 2006 U.S. Dist. LEXIS 55071 (E.D.N.Y. August 8, 2006) . . . . . . . . . . . . . . . . . 10, 12 Milke v. Ryan, 711 F.3d 998 (9 Cir. 2013) . . . . . . . . . . . . .th 19 Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Auten, 632 F.2d 478 (5 Cir. 1980) . . . . . .th 22 United States v. Perdomo, 929 F.2d 967 (3d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 United States v. Taylor, 417 F.3d 1176 (11 Cir. 2005) . . .th 31 United States v. Wilson, 901 F.2d 378 (4 Cir. 1990) . . . . .th 24 Williams v. Whitley, 940 F.2d 132 (5 Cir. 1991) . . . . . . . .th 22 Youngblood v. West Virginia, 547 U.S. 867, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006) . . . . . . . . . . . 14, 27 STATE CASES ii Kourtalis v. City of New York, 191 A.D.2d 480 (2d Dept. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Andrew, 54 A.D.3d 618 (1 Dept. 2008) . . . . . . .st 32 People v. Benard, 163 Misc. 2d 176, 620 N.Y.S.2d 242 (Sup. Ct. N.Y. Cty. 1994) . . . . . . . . . . . . . . . 19, 21 People v. Carter, 77 N.Y.2d 95 (1990) . . . . . . . . . . . . . . . . 36 People v. Ducret, 95 A.D.3d 636 (1 Dept. 2012) . . . . . . .st 33 People v. Fuentes, 12 N.Y.3d 259, 263 (2009) . . . . . . . . . . 13 People v. Garrett, 3 N.Y.3d 674 (2004) . . . . . . . . . . . . . . . 10 People v. Garrett, 49 A.D.3d 779 (2d Dept. 2008) . . . . . . . 10 People v. Garrett, 8 A.D.3d 676 (2d Dept. 2004) . . . . . . . . . 9 People v. Garrett, 106 A.D.3d 929 (2d Dept. 2013) . . . . . . . 1 People v. Johnson, 226 A.D.2d 828 (3d Dept. 1996) . . . . . 23 People v. Roberson, 276 A.D.2d 446 (1 Dept. 2000) . . . . .st 23 People v. Santorelli, 95 N.Y. 2d 412 (2000) . . . . . . . . . . . . 29 People v. Vasquez, 214 A.D. 2d 93 (1 Dept. 1995) . . . . . .st 23 People v. Vilardi, 76 N.Y.2d 67 (1990) . . . . . . . . . . . . . . . . 25 FEDERAL STATUTES 42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 UNREPORTED CASES iii Castellanos v. Kirkpatrick, 2013 U.S. Dist. LEXIS 99412 (E.D.N.Y July 16, 2013) . . . . . . . . . . . 37 King v. Ercole, 374 Fed. Appx. 140 (2d Cir. 2010) . . . . . . . 14 1 PRELIMINARY STATEMENT On August 19, 2013, this Court issued a certificate granting leave (Hon. Victoria A. Graffeo) to the People from a ruling of the Supreme Court, Appellate Division, Second Department (“Second Department”), People v. Garrett, 106 A.D.3d 929 (2d Dept. 2013), which reversed the denial of a motion to set aside the verdict, dated March 31, 2010, in County Court, Suffolk County (Hon. James Hudson). 2 QUESTION PRESENTED 1. Did the Second Department correctly rule that Mark Garrett’s §440 motion to set aside his conviction, on the ground that the People had failed to disclose Brady material, should have been granted? 3 STATEMENT OF FACTS On June 1, 1998--about seven weeks before Mark Garrett [“Garrett,” “Respondent”] was arrested, on July 23, 1998, and charged with murder--the detective who investigated him, with the Suffolk County Police Department, was served with a summons and complaint, in the United States District Court for the Eastern District of New York. See Keith W. Schroeter v. Detective O’Leary, docket number 0:98-cv-03841-NGG (Appellant’s Appendix: 98-104). Schroeter alleged, in his 42 U.S.C. §1983 action, that Detective O’Leary “repeatedly and forcefully struck him in the head with a telephone book” and then “forced ‘signatures’ to be affixed to a” confession (Appellant’s Appendix: 100; Plaintiff’s Complaint: ¶¶’s 12-13). That case remained pending, as Mark Garrett’s pretrial hearings commenced in November 1999, and the trial started in April and May 2000. Schroeter’s case “settled,” according to the docket sheet lodged in federal district court, on March 20, 2001 (Appellant’s Appendix: 123; Docket sheet, entry number 50)(“Letter ... 4 confirming that the ... case has been settled”). Before trial, defense counsel made a request for all Brady material (Appellant’s Appendix: 115; Defense counsel’s affirmation: ¶31). He repeated the request at trial (Respondent’s appendix: 6; Trial transcript: 304)(“In my discovery applications, I had asked for ... prior bad acts of any witnesses the People intend to call ....). At trial, however, the prosecutor admitted, “I didn’t answer the discovery motion ....” (Respondent’s Appendix: 6; Trial transcript: 304). Absent this critical Brady material, defense counsel, who had never been told by the People that Detective O’Leary had been charged with this bad act, still attempted to impeach him, asking him, on cross-examination: Q. Have you ever had a case with a false confession, Detective? A. Me? Q. Yes. A. No, sir (emphasis added). Q. Never heard of a false confession? 5 A. I’ve heard there’s been instances where that has occurred, yes. Q. In your squad, isn’t that correct? (Objection sustained) (Appellant’s Appendix: 306; Trial transcript: 609). The Jury Trial On July 18, 1998, at approximately 8:50 p.m.--some seven weeks after Detective O’Leary was sued for police brutality--the Suffolk County Police were called to investigate an overwhelming odor in Wyandanch, New York. There, the police discovered a dead body, bundled in sheets and dark colored plastic, behind the fence of the home of Garrett’s mother. The decomposing body was transported to the Medical Examiner’s Office, where they determined it was an unidentified girl, who was bound with electrical wire and dressed in red colored jeans and a light-colored shirt. Homicide detectives, led by Detective O’Leary, thereafter interviewed Frank Garrett, Respondent’s brother, and his girlfriend, J. C.. The found that her thirteen-year-old daughter, L.C., had been missing for fourteen days. J.C.’s two sons, S.H. 6 and M.C., also told O’Leary that the child had last been seen with Garrett (Respondent’s Appendix: 7; Trial Transcript: 360). On July 19, 1998, Detective O’Leary returned to Ms. Garrett’s home, where she showed them the house. O’Leary observed electrical wires in the basement, which resembled the wires found on the dead body (Respondent’s Appendix: 8-9; Trial Transcript: 483, 487). The detectives re-interviewed J.C., and found that the victim had owned red jeans similar to the pants found on the dead girl (Respondent’s Appendix: 10; Trial Transcript: 489). They also learned that J.C. did not like Garrett, and the two had recently had an argument (Respondent’s Appendix: 2; Hearing transcript: 25). Without any direct evidence linking Garrett to the crime, Detective O’Leary nonetheless decided to target Garrett based solely on a warrant for his arrest, that had been issued by the New York Division of Parole, on June 17, 1998. On July 20, 1998, Parole Officer Anthony Mayers confirmed that the warrant was still in effect (Hearing Transcript: 24-25). On July 23, 1999, the detectives arrested Garrett and 7 transported him to the Homicide Bureau in Police Headquarters in Yaphank, New York (Respondent’s Appendix: 11; Trial Transcript: 508). There, according to the police, he allegedly gave them the only incriminating evidence they would ever have in the case: a confession (Respondent’s Appendix: 12-14; Trial Transcript: 542- 544). Even though Garrett steadfastly refused to videotape anything he said (Respondent’s Appendix: 4-5; Hearing transcript: 104-105), Detective O’Leary decided to personally write out Garrett’s purported “confession” (Respondent’s Appendix: 3, 15; Hearing transcript: 68; Trial transcript: 550), in which he allegedly said: I wanted to have sex with her and I was grabbing at her chest and she was pulling away. She even got away from me, but I was able to get a hold of her again . . . I remember grabbing her tight around her chest and lifting her up off the ground. I did that a lot of times. At one point I had her in a full nelson but mainly I was squeezing her around the chest. I wanted to have sex with her but she wouldn’t calm down. I was squeezing her tight. I may have gotten too rough. I might have just snapped. I don’t know. [The victim] went limp in my arms. I put [her] on the . Neither the People nor Respondent have been able to1 obtain a copy of this transcript for inclusion in the appendix. 8 ground and I tried to wake her up. She was not moving at all (Respondent’s Appendix: 16; Trial Transcript: 556). Based on the confession, Garrett was charged with three counts of Murder in the Second Degree, in violation of Penal Law §§’s 125.25(1), (2), and (3). At arraignment, on July 31, 1998, Judge Stephen L. Braslow observed marks on Garrett’s shoulder, and ordered a physical examination, at the Suffolk County jail. There, Dr. Judith O’Neill observed six or seven circular marks, or healed scars, of less than 1/4 inch in diameter (Suffolk County Police Report, dated July 31, 1998).1 Following trial, based almost entirely on the purported confession, Garrett was convicted of one count of Murder in the Second Degree, in violation of Penal Law §125.25(2)(Depraved Indifference Murder), and one count of Murder in the Second Degree, in violation of Penal Law § 125.25(3)(Felony Murder). He was then sentenced to two concurrent indeterminate terms of . The People do not have the actual subpoena, and, thus,2 Respondent has been unable to include this in the appendix. 9 25 years to life imprisonment. Meanwhile, in January 2001, counsel for Keith Schroeter served a subpoena on the Suffolk County District Attorney’s Office to unseal and provide documents relating to his criminal prosecution. On January 30, 2001, the People provided those2 documents to counsel. On January 12, 2004, Garrett appealed his conviction to the Second Department. He argued (1) the State failed to prove his guilt beyond a reasonable doubt; (2) his statements to police during an unauthorized detention should have been suppressed; (3) his statements to police should have been suppressed, because his waiver of rights was invalid since he was affirmatively misled into thinking the interrogation was based on a parole warrant rather than a homicide investigation; (4) the trial court’s unbalanced marshaling of the evidence on the felony murder count deprived him of a fair trial; and (5) his sentence was unduly harsh and excessive. Because he knew nothing about the Brady 10 violation, he did not raise this on his direct criminal appeal. On June 28, 2004, the Second Department affirmed Garrett’s judgment of conviction, holding that there was probable cause for his arrest, that he voluntarily made incriminating statements after waiving his Miranda rights, that his sentence imposed was not excessive, that the evidence was legally sufficient to establish his guilt beyond a reasonable doubt, and that the verdict was not against the weight of the evidence. People v. Garrett, 8 A.D.3d 676 (2d Dept. 2004). Leave to appeal was denied by the New York Court of Appeals on August 23, 2004. People v. Garrett, 3 N.Y.3d 674 (2004). Garrett’s subsequent writ of error coram nobis was denied. People v. Garrett, 49 A.D.3d 779 (2d Dept. 2008). On July 11, 2005, Garrett filed a pro se petition in the United States District Court for the Eastern District of New York, in which he raised the same five claims he had submitted on appeal to the Second Department (Respondent’s Appendix: 17- 22). His petition was denied on August 8, 2006. Garrett v. Smith, 2006 U.S. Dist. LEXIS 55071 (E.D.N.Y. August 8, 11 2006)(“Petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Accordingly, the instant habeas petition is denied. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.”). In December 2009, Garrett filed a §440.10 motion, in which he argued that the People had failed to inform him that the detective who had physically extracted a confession from him had engaged in the identical conduct with another defendant, and was, in fact, being sued in a §1983 civil rights action. He attached a copy of the complaint, which had been filed in federal district court. The caption was entitled “Keith W. Schroeter v. Detective O’Leary, individually as Police detective of the Suffolk County, New York, Police Department and the County of Suffolk” (Appellant’s appendix: 58-124). On March 31, 2010, the County Court, Suffolk County, denied Garrett’s §440 motion for post-conviction relief. Garrett appealed. The Second Department, reversed, ruling “ ... the allegedly suppressed evidence clearly fell within the ambit of the 12 prosecutor’s Brady obligation because it constituted impeachment evidence.” Garrett, 106 A.D.3d at 931 (Appellant’s Appendix: 4- 6). On June 14, 2013, the People moved to reargue this decision, but the Second Department denied the motion on August 20, 2013 (Appellant’s Appendix: 173). During the pendency of the motion, Judge Victoria A. Graffeo granted the People leave to appeal on August 19, 2013 (Appellant’s Appendix: 2). . Garrett “ ... referred to physical brutality in the facts3 section of his state appellate brief ....” Garrett v. Smith, 2006 U.S. Dist. LEXIS 55071 at * 28. 13 ARGUMENT POINT I THE SECOND DEPARTMENT CORRECTLY RULED THAT MARK GARRETT’S §440 MOTION TO SET ASIDE HIS CONVICTION, ON THE GROUND THAT THE PEOPLE HAD FAILED TO DISCLOSE BRADY MATERIAL, SHOULD HAVE BEEN GRANTED. Garrett was convicted of murdering a 14-year-old girl in Suffolk County without a scintilla of direct evidence--other than a confession, which was the product of police brutality. Although3 Detective O’Leary extracted the confession, and was sued, before trial, for the same exact misconduct, in a case in federal court which settled, the People failed to disclose this bad act for impeachment purposes under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Had defense counsel been able to cross-examine the Detective about his perjured testimony, that he had never dealt with a false confession, there is a reasonable possibility that result of the proceeding would have . To preserve the sufficiency of this issue for habeas4 corpus review in federal district court, should this, the New York Court of Appeals, rule against Garrett, he must show, upon filing his petition in that forum, that he has fairly presented the constitutional nature of his claim to this, the State court. He may do so by relying on pertinent federal cases employing constitutional analysis, relying on state cases employing constitutional analysis in like fact situations, asserting a claim so particular as to call to mind a specific right protected by the Constitution, or alleging a pattern of facts that are well within the mainstream of constitutional litigation, as here. Daye v. Attorney General, 696 F.2d 186, 192 (2d Cir. 1982). Garrett’s reliance on federal case law exhausts his state- court remedies, on an issue which is clearly cognizable in a 14 been different. The Law under Brady In Brady, the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” See 373 U.S. at 88. In New York, “[t]he Due Process Clauses of the Federal and State Constitutions both guarantee a criminal defendant the right to discover favorable evidence in the People’s possession material to guilt.” People v. Fuentes, 12 N.Y.3d 259, 2634 federal habeas corpus action. Compare King v. Ercole, 374 Fed. Appx. 140 (2d Cir. 2010)(“James King petitions for a writ of habeas corpus on the ground that the prosecution withheld material impeachment information related to a key prosecution witness, Mario Lopez, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). ‘[T]he government's failure to disclose favorable information will result in an order of retrial if the undisclosed information is ‘material,’ within the exacting standard of materiality established by the governing case law.” United States v. Spinelli, 551 F.3d 159, 164 (2d Cir. 2008).”). 15 (2009)(citing Brady, 373 US at 87-88; People v Bryce, 88 N.Y.2d 124, 128 (1996). “Impeachment evidence falls within the ambit of a prosecutor’s Brady obligation.” Id. (citing Giglio v. United States, 405 U.S. 150, 154-155, 92 S. Ct. 763, 31 L Ed 2d 104 (1972). See also Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999)(“We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence”); see also Youngblood v. West Virginia, 547 U.S. 867, 16 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006)(“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. This Court has held that the Brady duty extends to impeachment evidence as well as exculpatory evidence”)(citation omitted). “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material.” Id. (citing Strickler v. Greene, 527 US 263, 281-282, 119 S Ct 1936, 144 L Ed 2d 286 (1999). Here, Garrett meets all three elements. (1) The Evidence was Impeaching in Nature The evidence in Detective O’Leary’s federal lawsuit, charging him with brutalizing a defendant to obtain a false confession, was critical impeachment evidence, because this prior bad act tended to make it more likely that this was the Detective’s modus operandi. Notably, Garrett’s entire defense turned on the same exact claim–that his confession was coerced by a rogue 17 detective. If the jury had learned that the Detective had been sued for the identical misconduct, there is a reasonable possibility, and probability, that the jury might not have credited the confession. Without the confession, the People lacked proof beyond a reasonable doubt, and Garrett would have been acquitted. The People argued below that this evidence is not impeachment evidence because it “was collateral and not the proper basis to impeach a witness’ credibility” (People’s Affirmation: ¶ 12). It is wrong on both counts. The People’s entire case rested on Detective O’Leary’s claim that Garrett confessed, even though he personally wrote the confession after Garrett refused to be videotaped. They had no other direct evidence, of any kind. O’Leary’s claim that Garrett confessed was, therefore, the most relevant--and, indeed, dispositive–issue at trial. O’Leary’s conduct in the Keith W. Schroeter case could not, as the People claim, be collateral. On the contrary, it was highly relevant, because it tended to make the defining issue at 18 Garrett’s murder trial more probable than not, namely, establishing, with direct proof, that the Detective had a history of extracting false confessions. O’Leary’s bad act dovetailed with the defense theory of the case. Before the County Court, the People also claimed that courts cannot require a prosecutor to search “every police department file” to locate impeaching material (People’s Memorandum of Law: 2). This assertion misses the mark, because Garrett never asked the prosecutor to do that. On the contrary, he simply asked him to do what every prosecutor in America would have done: ask his star witness--upon which his entire murder prosecution rested--whether he had any prior bad acts, or any litigation, accusing him of torturing other defendants to confess. Because the Detective was in law enforcement, and was the People’s witness, it had an advantage over the defendant in procuring information about his background, history and record of civil rights lawsuits. Yet the People did not even allege it conducted any background checks on Detective O’Leary. At the same time, the 19 civil rights action, against its star witness, was readily available. Defense counsel cannot be expected to peer into a crystal ball, and wonder if, somewhere, someplace, the People’s star witness has material that can be deemed impeaching--especially when the confession rate is so high in Suffolk County. Indeed, in a County where confessions are so ubiquitous, there is often no reasonable basis upon which counsel can inquire further. See Howard, Mark, Sundays With Marty, The New York Times February 19, 2006, Section 14LI; Column 4; Long Island Weekly Desk; Pg. 13 (“confessions [are] the norm in Suffolk, which boast[s] an astounding 94 percent confession rate in homicide cases, nearly double the national average of 48 percent”), Lutz, Phillip, Retrials in murder of Suffolk boy raising criminal-justice questions, The New York Times, February 21, 1988, Section 11LI; Page 1, Column 3 (“ ... the Suffolk County police’s confession rate of more than 90 percent, about 20 percentage points higher than in any comparable region ....”). Still, the People blame the defendant for not finding favorable Brady impeachment material. It claims, on page 42 of 20 its brief, in footnote number 57, that, “[i]f there was a civil complaint filed against Detective O’Leary, the defense could have just as easily confirmed the existence of any civil complaint filed against him by running a query in the civil courts.” Yet this very burden-shifting argument has already been rejected. See Milke v. Ryan, 711 F.3d 998, 1017 (9 Cir. 2013)(“That the courtth documents showing Saldate’s misconduct were available in the public record doesn’t diminish the state’s obligation to produce them under Brady.”). The People complain that requiring the prosecution to locate favorable Brady impeachment material would be “ ... untenable because the ramifications of its holding [in Garrett] are limitless” (People’s brief: 44). Not so. In fact, the prosecutor could have questioned its star police witness about this subject in literally seconds. Even if it took longer, the People, with its vast resources, could have simply conducted a quick and inexpensive background search on Lexis or Westlaw. With absolutely minimal effort, this would have placed the favorable Brady impeachment material squarely in the People’s files. People v. Benard, 163 21 Misc. 2d 176, 184, 620 N.Y.S.2d 242 (Sup. Ct. N.Y. Cty. 1994)(“Where the exculpatory material is in the files of the law enforcement agency which was involved in the investigation which resulted in the criminal charges against the defendant and it is the files of that or a related investigation, the prosecution can be charged with constructive possession and control of that material”). (2) The Evidence was Suppressed by the Prosecution Although Detective O’Leary was being sued for beating a suspect and extracting a false confession, for which a settlement was reached in federal court, in 1998, the People claimed, before the County Court, that there was no Brady violation because “ ... the prosecutor was not aware of the federal §1983 claim until January 2000–more than one year after defendant’s trial” (Memorandum of Law: 2). They thus reason that Brady is not implicated because the trial prosecutor was “unaware of the federal claim” (People’s Affirmation: ¶ 11). This is incorrect. “It is well accepted that a prosecutor’s lack of knowledge does not render information 22 unknown for Brady purposes.” United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). The prosecutor had a duty to ask the Detective if he had any Brady material, if he had ever beat any confessions out of other defendants, or even if he was being sued, in any court, for any reason related to his course of conduct as a Suffolk County Detective. Cf. Benard, 163 Misc. 2d at 184 (“ ... the prosecution should ask the investigative agency if it possesses exculpatory material as the investigative agency continues to be a partner of the prosecution in the subsequent prosecution of the case”). The prosecutor should have also conducted a cursory check in state and federal court to see if the Detective had any civil rights cases against him. A party name search for “Detective O’Leary” would have produced his case, as well as the docket sheet, and complaint against him, in seconds, at https://pcl.uscourts.gov/search. Prosecutors routinely do background checks of their witnesses, not only to prepare for trial, but also to avoid surprises on cross-examination--and this detective was no different. 23 Critically, all of this information was “readily available” to the People, and non-disclosure cannot be excused, as the People seek to do, on the ground that they did not know about a pending §1983 action. See Perdomo, 929 F.2d at 970 (“The Fifth Circuit has spoken the most often on this issue and has declined to excuse non-disclosure in instances where the prosecution has not sought out information readily available to it”); Williams v. Whitley, 940 F.2d 132, 133 (5 Cir. 1991)(“The prosecution is deemed to haveth knowledge of information readily available to it ....”). The Fifth Circuit explained its reasoning in United States v. Auten, 632 F.2d 478, 481 (5 Cir. 1980):th The leading articles on enhanced criminal discovery emphasize what we stress here, that Brady and other means of criminal discovery indicate the need for disclosure of important information known or available to the prosecutor in order to promote the fair administration of justice. The need referred to in Calley [Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975)] is premised on the fact that the prosecutor has ready access to a veritable storehouse of relevant facts and, within the ambit of constitutional, statutory and jurisprudential directives, this access must be shared ‘in the interests of inherent fairness … to promote the fair administration of justice.’ See also Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 24 973 (1966). If disclosure were excused in instances where the prosecution has not sought out information readily available to it, we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government. This we decline to do. In failing to address this body of law, the County Court, like the People before this Court, rely on a series of inapposite rulings. It cites People v. Johnson, 226 A.D.2d 828 (3d Dept. 1996) (People’s brief: 43, n. 63), for the proposition that a police officer’s “secret knowledge of his own prior illegal conduct [cannot] be imputed to the prosecution.” Here, however, there was nothing secret about O’Leary’s very public federal lawsuit. The County Court and the People also rely on People v. Vasquez, 214 A.D. 2d 93 (1 Dept. 1995) (People’s brief: 43, f.st 64), but that too is inapposite. There, the Court found the prosecutor could not have known his police witness would be arrested for corruption after trial; here, the prosecutor could have, and should have known O’Leary was sued in federal court, because it occurred before trial. The same holds true for People v. Roberson, 276 A.D.2d . Because O’Leary was the People’s witness, and a law5 enforcement officer, who they could interview, and learn about the pending case, it would be unfair to argue that the defense had equal access to the federal court case. Cf. United States v. Wilson, 901 F.2d 378, 381 (4 Cir. 1990)(“where the exculpatoryth information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine”). 25 446 (1 Dept. 2000) (People’s brief: 21, n. 13), in which the courtst held “there was no evidence that[,] at the time of defendant’s trial[,] the prosecution was aware of the officer’s alleged misconduct in other cases.” Here, in contrast, the allegations were set forth in public, before trial, in federal court.5 (3) Prejudice Arose because the Suppressed Evidence was Material The People argued below that the §1983 lawsuit “did not constitute Brady material because it was collateral and not the proper basis to impeach a witness’ credibility” (People’s Affirmation: ¶ 12). They advance the same argument in this Court, claiming “[t]he impeachment evidence was not ‘material’ under Brady” (People’s brief: 35). They are wrong: the Brady material was not only material, it was, in fact, the linchpin of Garrett’s entire defense. . Because defense counsel was precluded from making a6 specific pre-trial Brady request by the People’s very withholding of that evidence, Garrett should be held to the reasonable possibility rather than reasonable probability standard. While the Second Department found the “reasonable probability” prevailed, Garrett, 106 A.D.3d at 930, Garrett rejects that finding, because it unfairly punishes him for the People’s wrong. 26 At trial, defense counsel argued the People had no evidence, and that the confession had been illegally extracted. He asked Detective O’Leary, under oath, if he “ ... ever had a case with a false confession .....” He replied, “No, sir.” If defense counsel had the Brady material, and could have set a perjury trap on cross-examination about the federal case, there is a “reasonable possibility” that this would have changed the result6 of the proceeding. People v. Vilardi, 76 N.Y.2d 67, 77 (1990). Indeed, there was a reasonable possibility the outcome would have been different, because the jury might have concluded that, without any forensic evidence or eyewitness accounts, the dubious confession alone could not support proof beyond a reasonable doubt. After all, it was taken by a Detective who knew he had just been sued in federal court, had been served with the complaint, yet apparently still lied on the stand about it. 27 Before the County Court, the People claimed that this impeachment evidence would not have been admitted because it was no different than other precluded evidence at trial (People’s Affirmation: ¶ 12). They note, for example, that the court would not permit questioning about an “ ... unrelated homicide case where fellow Suffolk County Homicide Detectives allegedly coerced a false confession by means of physical abuse” (Hearing transcript: 558-559; Trial transcript: 607-609). Here, however, the facts are different. Once Detective O’Leary apparently lied that he had never had a case with a false confession--even though one was then pending in federal court-- defense counsel had the Sixth Amendment right to confront him with that prior bad act evidence. Taken together, the Second Department correctly ruled that the County Court should have not have denied Garrett’s application to vacate his judgment of conviction, pursuant to section 440.10(1)(h) of the Criminal Procedure Law, because the People suppressed impeachment evidence which, if the jury heard, was so material to his defense, on the dispositive issue in 28 the case, that there is a reasonable possibility that this would have changed the result of the proceeding. Had the jury seen and heard the Detective impeached with evidence that he had, in fact, apparently lied about a prior case, then pending in federal court, that he had physically abused a defendant to extract a confession, the whole case in Garrett, which was otherwise devoid of evidence, would have been placed in a different light. Indeed, all confidence in the verdict has now been undermined. Youngblood, 547 U.S. at 870 (Reversal is required under Brady upon a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict”). In specifically attacking the decision and order rendered by the Second Department, the People raise four principal points, namely, that Schroeter’s civil complaint was not within its possession and control; that knowledge of the civil lawsuit was not material under Brady; and, finally, that, even if it was, there was no reasonable probability that Garrett would have been acquitted. The People are incorrect on all counts. 29 (1) Schroeter’s Civil Complaint was within the control of the prosecution. The People claim that the civil complaint filed in federal court against its star witness--alleging he engaged in the identical physical abuse to extract a “confession”--was not within its “control” (People’s brief: 28-30). It is wrong. The witness, a Suffolk County Detective and fellow member of law enforcement, was within its control, and all it had to do was ask what every prosecutor would, namely, whether he beat this or any other defendant, to obtain a confession and, if so, whether he had ever been sued for doing so. The People claim they had no duty to “ ... try to locate potentially exculpatory information in the files of another sovereign, such as the federal government” (People’s brief: 29). That, however, is not what occurred in this case. The §1983 complaint was not hidden in the files of another federal agency; on the contrary, it was in the public domain, in federal court, and was even readily accessible on the Suffolk County District . Pacer, or Public Access to Court Electronic Records, is7 an electronic public access service, provided by the federal Judiciary, that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts. 30 Attorney’s own computers, at www.pacer.gov. 7 The People’s reliance on People v. Santorelli, 95 N.Y. 2d 412, 421 (2000) (People’s brief: 29, n. 26), in support of its claim that the Brady material was in the hands of a federal agency, is misplaced. There, this Court ruled that the Brady material was “ ... in the hands of the FBI, an independent Federal law enforcement agency not subject to State control.” Here, in contrast, the information was not in the hands of the FBI, or any other independent law enforcement agency. Rather, it was in plain view, in a parallel court, on publically viewable Pacer. (2) Knowledge of the Civil Lawsuit was Material under Brady The People next claim that the Appellate Division erred, as a matter of law, when it held that knowledge of Schroeter’s lawsuit constituted impeachment material (People’s brief: 30). It is again wrong. In fact, there is no more vital impeachment evidence, in a 31 criminal trial that turns almost exclusively on a confession, than whether the chief detective, who beat the confession out of the defendant, engaged in the identical conduct with another defendant, who, in turn, filed a §1983 civil rights action against him. The People claim that Detective O’Leary could not be cross-examined and impeached with the civil complaint, because, it reasoned, that was “ ... nothing more than a list of unsubstantiated accusations made to commence a lawsuit, with no assurance that any of the underlying facts alleged by the complainant are founded” (People’s brief: 31). It is wrong. Inquiry into a witness’s conduct to impeach a witness is allowed, on cross-examination if, in the discretion of the court, the conduct is probative of truthfulness or untruthfulness. See, e.g., Rule 608(b)of the Federal Rules of Evidence (“Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into 32 if they are probative of the character for truthfulness or untruthfulness of: (1) the witness ....”). The allegations in the civil complaint would also have been admissible to impeach O’Leary as prior bad acts. The inquiry into those instances would have clearly been probative of the detective’s truthfulness or untruthfulness. This is not a case where Schroeter filed an unfounded and unreliable complaint with a civilian complaint board about police misconduct, which was dismissed. It was filed in federal district court before Garrett was arrested, and remained pending throughout trial, before “settling.” Compare United States v. Taylor, 417 F.3d 1176, 1179 (11 Cir. 2005)(“The district courtth did not abuse its discretion by denying Taylor’s request to either reference or admit ... thirteen complaints of police misconduct under Rules 404(b) or 608(b). Taylor’s attempt to offer or reference these ‘unfounded’ complaints into evidence at trial is similar to the failed defendants’ efforts in United States v. Novaton, 271 F.3d 968 (11 Cir. 2001).”). th The People’s reliance on the Second Department’s ruling 33 in Kourtalis v. City of New York, 191 A.D.2d 480 (2d Dept. 1993), is misplaced. There, the Second Department ruled that reversal was warranted where, in an action to recover damages for, inter alia, assault and battery, false arrest, and malicious prosecution, the plaintiff cross-examined the police officer about complaints “ ... that were [n]ever substantiated or resulted in disciplinary action.” That is not the case here, where the civil complaint remained pending in federal court before and during trial, and may have been substantiated, given the ultimate settlement. There is a qualitative difference between impeachable material that is an actually provable fact, in a court of law, and unsubstantiated allegations in a civilian complaint, which have already been dismissed as unfounded. The People’s reliance on People v. Andrew, 54 A.D.3d 618 (1 Dept. 2008) (People’s brief: 32, n. 34), is equally misplaced.st There, the First Department ruled: The [trial] court properly exercised its discretion when it denied defendant’s request to question the arresting detective regarding certain federal lawsuits ... The detective was one of several officers named as defendants in two actions, principally against the 34 City of New York, that involved a single incident that occurred one year before the incident at issue in this case. The mere existence of the federal litigation was not a proper subject for cross-examination and the defense failed to establish a good faith basis for eliciting the underlying facts as prior bad acts .... as the complaints and amended complaints in the federal actions did not allege, or even support an inference, that this detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers (citations omitted). Here, in contrast, the defendant was prevented from establishing a good faith basis for eliciting the underlying facts as prior bad acts precisely because the People withheld this invaluable Brady material. Because Schroeter’s complaint alleged O’Leary personally engaged in specific misconduct–beating a confession out of a defendant–it was the proper subject for cross-examination, and the defense could have easily established a good faith basis for eliciting the underlying facts as prior bad acts. Clearly, beating a confession out of a defendant is a bad act on many levels: constitutionally, professionally and morally. The People’s reliance on People v. Ducret, 95 A.D.3d 636 (1 Dept. 2012) (People’s brief: 32, n. 34), is also misplaced.st . The People’s claim that other detectives also questioned8 Garrett (People’s brief: 40) ignores that O’Leary was the carrying detective who both investigated the crime and was the face of the interrogation team. After all, he was the one who testified at trial about the interrogation (Trial transcript: 609). 35 There, the First Department ruled that the “ ... defendant received a sufficient opportunity to cross-examine the officer about the underlying facts of the lawsuit,” even though they were “unproven allegations.” Here, in sharp contrast, Appellant was deprived of that right. The Brady violation prevented Garrett from cross-examining O’Leary at trial, to establish the linchpin of his defense: that the only damning evidence against him--his8 confession--was unreliable because it had been physically extracted from him by the same detective who had engaged in the identical conduct with another defendant, and was then civilly sued for doing so. The People’s claim that evidence of O’Leary’s violent assault of a defendant to extract a confession “ ... does not constitute evidence of a material nature” (People’s brief: 32) is incorrect. Indeed, it constitutes a bad act, and was highly relevant to his credibility. Had the Detective been cross-examined about 36 engaging in the same misconduct in a prior case--beating a confession out of another defendant--the jury could have naturally and inexorably inferred that this was his modus operandi. (3) There is a reasonable possibility--and even probability--that disclosure of the lawsuit would have changed the outcome of the defendant’s trial. The Second Department ruled that “[t]he primary evidence at trial establishing the defendant’s identity as the murderer was his confession. The other evidence tying him to the crime was weak, consisting of testimony that he was seen with the victim shortly before she disappeared.” Garrett, 106 A.D.3d at 931. On appeal, the People claim that, even if the Brady material had been disclosed, there is no reasonable probability it would have “changed the outcome of the proceedings” because “the circumstantial case against defendant was a strong one” (People’s brief: 39-40). In fact, the People’s case, as the Second Department recognized, was “weak.” The People proved, simply, that the victim was seen with the victim before she disappeared; she was found behind the home of Garrett’s mother; she was bound with . Wolfe, The Bonfire of the Vanities, at 603, quoting9 Wachtler, Ch. J. See, People v. Carter, 77 N.Y.2d 95, 107 (1990)(Titone, J., dissenting). 37 material found in the mother’s home (Trial Transcript: 483-88); and that Garrett was not in the area when he was arrested, several weeks later. Simply put, anyone with access to Ms. Garrett’s home could have perpetrated the murder. Taken together, this evidence was so weak that, even though a grand jury Grand Jury could indict a ham sandwich, it is unlikely it would have indicted9 the defendant. But even if it did, without the confession, no rational jury could have convicted anyone of murder based on this evidence, because, with a dubious confession, there is no connection between the person who committed the crime and the victim who was murdered. Obviously, that link was supplied by the alleged confession-- which Garrett refused to make on tape. Yet if the jury weighed Garrett’s claim that the confession had been physically extracted from him, against evidence that the Detective was being sued in a federal lawsuit, on the same exact facts, there is a reasonable possibility--and even probability--as the Second 38 Department correctly found--that disclosure of the lawsuit would have changed the outcome of the trial. Finally, the People claim that the Second Department has somehow “redefine[d] Brady to now include the existence of civil complaints against police witnesses ....” (People’s brief: 26). Garrett, in fact, redefined nothing, and simply gave meaning to Brady. In a case where a defendant alleges a detective beat a confession out of him, a civil suit against the detective who procured a defendant’s contested confession is Brady material if the district attorney’s office is aware of the suit. See Castellanos v. Kirkpatrick, 2013 U.S. Dist. LEXIS 99412 * 6 (E.D.N.Y July 16, 2013)(Margo K. Brodie, J.)(In “People v. Garrett, 106 A.D.3d 929, 964 N.Y.S.2d 652 (App. Div. 2013), decided in May 2013, ... the Appellate Division found that a civil suit against the detective who procured a defendant’s contested confession is Brady material if the district attorney’s office is aware of the suit * * * In light of ... Garrett, Petitioner’s argument that details regarding four civil suits against Detective Trujillo and six internal affairs investigations constituted Brady material is not 39 plainly meritless.”). As a result of Garrett, the People argue “ ... the People are now imputed to know, or at least investigate, whether any member of their prosecution team has ever been sued or accused of misconduct on any previous case because it may constitute Brady” (People’s brief: 27). And well they should be. After all, the touchstone of due process is the fairness of the trial, which turns on full and fair Brady disclosure. Here, that was not done, as the Second Department correctly found. The People’s related claim--that Garrett “ ... presents this Court with a fundamentally flawed expansion of the prosecution’s Brady obligations”--is equally flawed. In fact, all it requires the prosecutor to do is ask his star witness if he has ever been sued for coercing a confession. Rather than expanding Brady, Garrett simply gives it life. No more is demanded, and no less required, because, in a murder prosecution, where the entire defense was a physically coerced confession, any rational juror would want to know that the lead detective was accused, in a federal lawsuit, of the same conduct. This is particularly true where the entire case 40 hinges on whether the contested confession is the product of coercion, lacking indicia of reliability. A hearing is necessary, therefore, to determine whether the District Attorney’s office had sufficient knowledge of the suit against O’Leary to trigger its Brady obligations. 41 CONCLUSION THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE, SECOND DEPARTMENT SHOULD BE AFFIRMED. Dated: December 10, 2013 Reckson Plaza Uniondale, NY Steven A. Feldman 42 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- MARK GARRETT, Defendant-Respondent. _______________________________________ I, Steven A. Feldman, an attorney duly admitted to practice law in the State of New York, affirm, under penalties of perjury, that, on January 18, 2014, I served three copies of Respondent’s brief and appendix, by first class United States mail, on the Suffolk County District Attorney, Criminal Courts Building, 200 Center Drive, Riverhead, NY 11901, and a copy of the brief and appendix on Mark Garrett, 00 A 3947, Shawangunk Correctional Facility, P.O. Box 700, Walkill, NY 12589. _______________________ Steven A. Feldman