The People, Appellant,v.Mark Garrett, Respondent.BriefN.Y.June 3, 2014 To Be Argued By: ANNE E. OH Time Requested: Fifteen Minutes COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Case Appellant, No. APL-2013-00232 - against - App. Div. Case No. 2010-04483 MARK GARRETT, Suffolk Co. Indictment No. 1781-98 Defendant-Respondent. --------------------------------------------------------------x APPELLANT’S REPLY BRIEF THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 ANNE E. OH Assistant District Attorney Of Counsel TABLE OF CONTENTS Page Table of Authorities .......................................................................................... i Introduction ....................................................................................................... 1 Argument........................................................................................................... 5 1. Defendant never claimed that Detective O’Leary extracted a confession from him through violence. ........... 5 2. The mere fact that the evidence could have been favorable does not render it Brady material. ...................... 9 Conclusion ........................................................................................................ 16 Certification ...................................................................................................... 17 i TABLE OF AUTHORITIES Page United States Supreme Court Giglio v United States, 405 U.S. 150 (1972) ........................................................ 8,9 Kyles v Whitley, 514 U.S. 419,434, 436, 437-38 (1995) ............................. 10,14,15 Strickler v Greene, 527 U.S. 280, 281-82 (1999) ...................................................10 United States v Agurs, 427 U.S. 97, 108 (1976) ....................................................... 2 Federal Court Milke v Ryan, 711 F3d 998, 1002 (9th Cir 2013) ............................................. 4,8,9 United States v Payne, 63 F3d 1200 (2d Cir 1995) ................................................. 4 Castellanos v Kirkpatrick, __FSupp2d__, 2013 WL 3777126 (EDNY 2013) ................................................................11 Garrett v Smith, __FSupp2d__, 2006 WL 2265094 (EDNY 2004) .................... 8,12 Court of Appeals People v Bryce, 88 NY2d 124, 128 (1996) .............................................................. 10 People v Gissendanner, 48 NY2d 543, 549 (1979) ................................................. 13 People v Hayes, 17 NY3d 46, 51 (2011) ................................................................. 14 People v Hunter, 17 NY3d 46 (2011) .....................................................................8,9 People v Santorelli, 95 NY2d 412 (2000) ............................................................... 15 People v Vilardi, 76 NY2d 67, 77 (1990) ................................................................ 10 Appellate Division People v Garrett, 8 AD3d 676 (2d Dept 2004) ................................................. 11,12 People v Garrett, 103 AD3d 929 (2d Dept 2013) ..................................................... 2 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Case Appellant, No. APL-2013-00232 - against - App. Div. Case No. 2010-04483 MARK GARRETT, Suffolk Co. Indictment No. 1781-98 Defendant-Respondent. --------------------------------------------------------------x INTRODUCTION As argued in the opening brief, the Appellate Division’s reversal of the trial court’s denial of defendant’s pro se motion to vacate the judgment was wrong as a matter of law for many reasons. First, the Court ruled on the issue of materiality without any evaluation regarding the quality of the alleged Brady material – that is, (1) whether a civil complaint against a police officer by another defendant in a completely unrelated case filed publicly in federal court could even be deemed within the “possession” or “control” of the People or (2) whether the unsubstantiated allegations made by that other defendant in an unrelated civil complaint could be deemed sufficiently reliable evidence so as to trigger a prosecutor’s obligation under Brady. Second and more troubling was the Appellate Division’s ruling that a Brady violation occurred because the “credibility of the detectives who obtained the 2 defendant’s confession was of central importance in the case, the nondisclosure [of the § 1983 claim] was material (A6).”1 The Appellate Division’s ruling was overbroad and incorrect as a matter of law because it did not properly evaluate the “materiality” of the contested evidence. Instead, it appears that the Court deemed it material mainly because it could have been favorable to defendant. This is improper. It is well-settled that “the mere possibility that an item of undisclosed evidence might have helped the defense…does not establish ‘materiality’ ” in the constitutional sense.2 The fact that evidence may be “favorable” does not automatically entitle a defendant to hearing regarding his post-conviction motion to vacate the judgment of conviction. Instead, the alleged Brady evidence must have such evidentiary value that it actually undermines the Court’s confidence in the outcome of the trial. Schroeter’s §1983 claim has no such evidentiary value. Here, the Appellate Division based its ruling on a general statement that the evidence was material because the “credibility of the detectives who obtained the defendant’s confession was of central importance in the case” (A6), and a speculation that the civil complaint “may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence” (A5-6). The only rationale provided by the Appellate 1 People v Garrett, 103 AD3d 929 (2d Dept 2013). 2 United States v Agurs, 427 U.S. 97, 108 (1976). 3 Division was that the evidence tying defendant to the crime was “weak” and that defendant’s confession was “the primary evidence” of defendant’s guilt. As argued in our opening brief, the Appellate Division’s summary of the strength of the People’s case was not correct. Also, the Appellate Division erred as a matter of law because it did not adequately and properly address the issue of materiality under Brady. Besides some general speculation, there was simply no “showing” of how there was a “reasonable probability” that possession of the §1983 claim would have changed the outcome of the proceedings. We rely on our opening brief regarding the issues of “custody and possession,” as well as whether a civil complaint, in and of itself, can be deemed sufficiently reliable to constitute Brady evidence. We maintain that a civil complaint filed by another defendant on an unrelated criminal case cannot per se constitute Brady material because it is (1) not within the custody or possession of the People and (2) not sufficiently reliable to implicate a prosecutor’s obligation under Brady. Further, we continue to assert that Brady does not impose upon a prosecutor the affirmative duty to learn whether a testifying police officer has been previously sued in either Federal or State court for matters unrelated to the criminal 4 prosecution. Such evidence is equally accessible to both sides as public documents and, therefore, not within the realm of documents contemplated under Brady.3 In this reply, we address only the issue of materiality in response to the claims made by defendant in his brief. As discussed below, the Appellate Division erred as a matter of law when it deemed the evidence material merely because it was possibly favorable and speculatively helpful to the defense. This does not meet the rigorous constitutional standard set forth by both this Court and the Federal Courts when assessing what constitutes Brady evidence. Accordingly, we urge the Court to reverse the Appellate Division’s decision and affirm the trial court’s denial of defendant’s motion to vacate the judgment of conviction. 3 In defendant’s brief, he cites Milke v Ryan, 711 F3d 998 (9th Cir 2013) and claims that the federal courts have rejected our argument that the defense could have just as easily confirmed the existence of any civil complaint filed against Detective O’Leary. Specifically, he quotes “That the court documents showing Saldate’s [the lead detective] misconduct were available in the public record doesn’t diminish the state’s obligation to produce them under Brady.” But what defendant leaves out is the latter statement of the Ninth Circuit that clarifies the rule regarding public documents – that it is considered suppression only in cases where a defendant doesn’t have enough information to find the Brady material with reasonable diligence. Notably, this is the rule in the Second Circuit. See, United States v Payne, 63 F3d 1200 (2d Cir 1995) (where the suppressed document is a public record, the test is whether defense counsel “was aware of facts that would have required him to discover exculpatory evidence through his own due diligence”). Here, the defense was aware that Detective O’Leary was the lead detective in the case and he knew his client alleged that the confession was involuntary. Accordingly, defendant could have easily either interviewed Detective O’Leary or checked the public documents for any purported civil claim against the detective. 5 ARGUMENT The crux of the lower court’s ruling, as well as defendant’s reply, is that the civil complaint filed by Keith Schroeter constituted Brady material because it could have potentially impeached the lead detective in this case and further corroborated the defense that Detective O’Leary procured defendant’s confession through physical force. According to the Appellate Division, defendant’s possession of Schroeter’s §1983 claim was material because the “credibility of the detectives who obtained the defendant’s confession was of central importance in the case” (A6) and “may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence” (A5). We disagree. 1. Defendant never claimed that Detective O’Leary extracted a confession from him through violence. Evidence of a federal lawsuit filed against Detective O’Leary was not critical impeachment evidence in this case. Defendant never alleged that Detective O’Leary ever harmed or brutalized him in order to obtain the confession. Instead, defendant unequivocally stated that the “only time O’Leary ever touched me was like at the ending of the night” and “It wasn’t a hurting thing or anything like that” (A250-51). Thus, all of the arguments advanced in defendant’s brief that Detective O’Leary was being sued, before trial, “for the same exact misconduct” (DB. 13), 6 and that Keith Schroeter’s §1983 claim was material because it made “it more likely that this was the Detective’s modus operandi” (DB. 16) are unpersuasive. Also, the Appellate Division erred when it accepted defendant’s speculative claim on direct appeal that evidence of Detective O’Leary’s history of procuring false confessions by force would have “dove tailed with the defense theory of the case” (DB. 18). First, defendant never alleged that Detective O’Leary used force to procure his confession. At the pretrial hearing, defendant identified Detective Eugene Walsh and another unnamed detective as his assailants – not Detective O’Leary: Q: So this third person came in the room, opened the door and then closed the door? A: Yes. Q: And you said that Walsh went behind you? A: Yes. Q: And was anything said during this time that he walked in and you say that Walsh went be behind you? A: He said that, “No one knows you here. And that you’re going to give us what we want.” That’s it. Q: And what happened then? A: I seen the officer take off his ring. Q: Which officer? A: The officer that came in the room took off his ring. Walsh took of his middle ring at this time. And I was just slapped once in the back of the head. Q: And what happened next? A: The drilling went on. Q: The drilling meaning, “You did it. You did it?” A: “You did this. This is how you did it. No one knows you here.” This is what went on. No one knows 7 you here. Your parole officer is not coming here.” And it just – it just progressed from there. Q: When you say “progressed,” what happened? A: The other officer slapped me in the back of the head. Q: This is the fair haired officer? A: Yes. Walsh came on the side, slapped me in the face. Q: What about O’Leary, did he have any – did he touch you at all? A: The only time O’Leary ever touched me was like at the ending of the night, like. Just my lips. It wasn’t a hurting thing or anything like that. Just played with my lips said, “Something…something’s wrong with his speech” (A249-51). Accordingly, defendant’s claim that there was “no more vital impeachment evidence” as Schroeter’s §1983 claim in this case which “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 against him” is overstated. Here, there was simply no evidence that Detective O’Leary actually physically harmed defendant and that fact must be taken into account when evaluating the potential impact of the disclosure of the civil claim at trial. Also, the Appellate Division erred as a matter of law when it held the civil complaint was material to the credibility of the detectives who took the confession. First, its assessment of the evidence as weak was incorrect and directly contradicts the fact finding of the federal court that previously denied defendant’s habeas 8 corpus petition. There, the Eastern District of the United States District Court held that “[p]etitioner’s confession is strongly corroborated by the circumstantial evidence presented, including the unique black electrical wire wrapped around the victim being similar to the wiring found in petitioner’s mother’s home, the similarity between the sheet used to wrap the victim’s body and the sheets in petitioner’s mother’s home, petitioner’s relationship with the victim, the testimony that the victim was the last person seen with petitioner, and the location of the murder at the petitioner’s mother’s house.”4 Also, in determining that Detective O’Leary’s credibility was central to the case, the Appellate Division relied on cases that are readily distinguishable from this one. All of those cases involved trials based upon the testimony of only one witness. In People v Hunter,5 the verdict rested solely upon the testimony of a rape victim who had filed nearly identical charges against another. Giglio v United States6 dealt with the testimony of the defendant’s co-conspirator who was the only witness linking petitioner to the crime. And although Milke v Ryan similarly involved the testimony of a detective who procured a defendant’s detective, that case was an extreme one. In Milke, the detective had a well-documented history of misconduct that resulted in the vacatur of at least eight Arizona convictions based 4 Garrett v Smith, __FSupp2d__, 2006 WL 2265094 at p6 (EDNY 2004). 5 People v Hunter, 17 NY3d 46 (2011). 6 Giglio v United States, 405 U.S. 150 (1972). 9 upon his misconduct.7 In Milke, the detective was the only witness to the alleged confession. Here, although Detective O’Leary was the lead detective, he was a member of a team consisting of five other detectives who participated in defendant’s questioning. Also, the quality of the alleged Brady evidence was completely different. In the cases cited by the Appellate Division, the contested impeachment material possessed significantly more evidentiary value – they included: a victim’s nearly identical allegations of rape against another man (Hunter); an agreement between the co-conspirator and prosecution for leniency based upon the co-conspirator’s testimony against defendant at trial (Giglio); and prior court and internal affairs determinations based upon a detective’s misconduct (Milke). In each of those cases, in contrast to the irrelevant allegations made in Schroeter’s §1983 claim, the evidence was irrefutably material in a constitutional sense. 2. The mere fact that the evidence could have been favorable does not render it Brady material. 7 Milke v Ryan, 711 F3d 998, 1002 (9th Cir 2013) (“Milke claimed that Detective Saldate ignored her request and proceeded with the interrogation, which ultimately led to a confession. Saldate didn’t record the interrogation, even though his supervisor instructed him to do so. Saldate didn’t bring a tape recorder to the interview, nor did he ask anyone to witness the interrogation by sitting in the room or watching through a two-way mirror. Saldate also skipped the basic step of having Milke sign a Miranda waiver. Not even Saldate’s interview notes made it into court. Saldate testified that he destroyed them after writing his official report three days after the interrogation. The jury thus had nothing more than Saldate’s word that Milke confessed”). 10 Even in cases where the prosecution intentionally or inadvertently suppresses or fails to disclose favorable evidence to a defendant, there is no Brady violation unless the information is material.8 In New York, in cases, such as this one, where a defendant makes a general Brady demand, evidence will only be deemed material if “there is a reasonable probability that had it been disclosed to the defense, the result would have been different – i.e. a probability sufficient to undermine the court’s confidence in the outcome of the trial.”9 The question before this Court then is whether there is a reasonable probability that defendant’s possession of the §1983 claim would have either changed the result of the jury trial or is sufficient to undermine the Court’s confidence in the outcome of the trial.10 We urge the Court to conclude there was no such probability. There is no such probability because the prosecution can establish at a subsequent hearing, that the §1983 claim named, in fact, a completely different detective – namely, Detective James O’Leary of the Suffolk County Arson Squad. Unfortunately, the People did not discover the facts until after the Appellate Division’s decision and thus, this case appears before the Court with a bizarre set of facts. Quite obviously, if defendant Garrett was in possession of Keith Schroeter’s §1983 claim at trial, there was no reasonable probability that it would 8 Strickler, 527 U.S., at 281-82. 9 People v Bryce, 88 NY2d 124, 128 (1996); citing People v Vilardi, 76 NY2d 67, 77 (1990). 10 Strickler, 527 U.S., at 280-82; quoting Kyles, 514 U.S. at 434. 11 have changed the result of defendant Garrett’s jury trial. Conduct by Detective James O’Leary is obviously not material to this case. But since this information was not before the Appellate Division when it rendered its decision, and is not part of the decision under review, this case is grounded on the lower court’s erroneous and speculative belief that the detective’s credibility in this case could have been impeached with the §1983 claim. Had the evidentiary hearing been held according to the Appellate Division’s remittitur, the People would have prevailed. But that would have left the Appellate Division’s decision and order intact. Unfortunately, the impact of the Appellate Division’s decision in this case is far reaching. The case has been subsequently cited by other courts to hold that, in New York, 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.”11 It is the People’s position that such a holding is an unprecedented and unworkable expansion of the prosecution’s Brady obligation. The Appellate Division’s decision now entitles any convicted defendant to an evidentiary hearing any time he or she can establish that one of the detectives involved in the procurement of his confession had been sued civilly. Because of this, the Appellate Division’s decision must be reversed. But in order 11 See, Castellanos v Kirkpatrick, Slip Copy, 2013 WL 3777126 (EDNY 2013) (staying and abeying a petitioner’s habeas corpus petition in order to include unexhausted Brady claim based on Appellate Division’s decision in People v Garrett). 12 to do so, we must argue our case in the hypothetical, as if Schroeter’s §1983 claim actually named Detective Vincent O’Leary. Even in this context, the Appellate Division erred as a matter of law when it ruled that the §1983 claim was “material” under Brady. There was no “reasonable probability” that the disclosure of the lawsuit would have changed the outcome of defendant’s trial. Most importantly, the claim of police brutality was not the lynchpin of the defense, as alleged by defendant in his brief. In fact, in defendant’s papers submitted for his direct appeal and federal review for habeas corpus relief, defendant never raised a claim that this was a false confession which resulted from police brutality. Instead, defendant argued that his confession was involuntarily made because it was obtained after the homicide detectives affirmatively misled him regarding the subject matter of the interrogation – not because it was the result of physical coercion.12 Also, given defendant’s own testimony at his hearing that Detective O’Leary did not harm or hurt him, it is highly unlikely that the trial court would have permitted defendant to impeach him with a hearsay civil complaint that alleged that Detective O’Leary procured a false confession by repeatedly striking a handcuffed defendant in the head with a telephone book until he confessed. 12 People v Garrett, 8 AD3d 676 (2d Dept 2004); Garrett v Smith, 2006 WL 2265094 (EDNY 2006). 13 Furthermore, citing People v Gissendanner,13 the court stated that disclosure of the civil suit might have provided a basis for the disclosure of otherwise unavailable police personnel records. But in Gissendanner, this Court held that in order to have a judge sign an order authorizing a subpoena of a police officer’s confidential file, he must set forth in good faith a factual predicate and “more than a bare allegation that the inspection is sought as fodder for an untracked attack on credibility.”14 Given defendant’s testimony at the hearing, that Detective O’Leary did not harm him or participate in any alleged abuse, it is mere speculation that possession of the civil complaint would have entitled him to access Detective O’Leary’s personnel records. Also, defendant’s claim that Detective O’Leary lied when he testified that he had not been previously involved in any cases involving false confessions must fail. Defendant argues that the §1983 claim was critical impeachment evidence because it proved that the detective was lying. Defendant’s “proof” of the detective’s perjury is Schroeter’s §1983 claim. This argument is without merit and need not be addressed. The civil claim alleged violations by Detective James O’Leary of the Suffolk County Police Arson Squad and it cannot be used as proof that Detective O’Leary testified falsely. 13 People v Gissendanner, 48 NY2d 543 (1979). 14 Gissendanner, at 549. 14 CONCLUSION We urge the Court to reverse the Appellate Decision’s order. If affirmed, Garrett will muddy the well-established law regarding Brady and will redefine a New York prosecutor’s obligation under Brady beyond all precedential limitations previously imposed by the Courts. As noted previously by this Court, the “protection of Brady extends to “discoverable evidence gathered by the prosecution and seeks to ensure the disclosure, or prevent the destruction of exculpatory information already within the People’s possession.”15 The People, however, are not a clearinghouse for potential exculpatory or speculative impeachment evidence. As held by the Supreme Court, “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. [The Court has] never held that the Constitution demands an open file policy (however such a policy might work out in practice).”16 Instead, the evidence must be material and the court must make a showing of how the disclosure of the evidence would have changed the outcome of the trial. The Appellate Division erred as a matter of law when it conclusively held that the evidence of the §1983 claim was material without conducting any evaluation of how the evidence would have impacted defendant’s trial. 15 People v Hayes, 17 NY3d 46, 51 (2011). 16 Kyles v Whitley, 514 U.S. at 436-7. 15 Accordingly, we urge the Court to reverse the Appellate Division’s determination that the evidence of was material. Also, the Appellate Division’s remittitur was improper. In its decision, the court determined that “a hearing is necessary to determine whether the District attorney’s office had sufficient knowledge of the suit against O’Leary so as to trigger its obligations under Brady” (A6). Under prevailing Constitutional law, if the complaint was, in fact, Brady material, it simply did not matter whether the prosecution knew about the complaint or not. Under Kyles v Whitley,17 if the evidence was material, as long as Detective O’Leary knew of the complaint, then the People were imputed to know. In Kyles, the Supreme Court held that a prosecutor must “learn of any favorable evidence known to the others acting on the government’s behalf in the case” and promptly disclose any such material evidence to the defendant.18 Similarly, this Court has also imputed the People with “knowledge of exculpatory information in the possession of the local police, notwithstanding the trial prosecutor’s own lack of knowledge.”19 The Appellate Division’s improper remittitur, therefore, is a misapplication of prevailing constitutional law. 17 Kyles v Whitley, 514 U.S. 419, 437-38 (1995). 18 Id. 19 People v Santorelli, 95 NY2d 412 (2000). COURT OF APPEALS STATE OF NEW YORK. --------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against- MARK GARRETT, Defendant-Respondent. --------------------------------------------------------------x Court ofAppeals Case No. APL-2013-00232 App. Div. Case No. 2010-04483 Suffolk Co. Indictment No. 1781-98 ATTORNEY'S CERTIFICATION I, ANNE E. OH, ESQ., an attorney admitted to practice in the State of New York, hereby certifies that the digital filing of Appellant's Reply Briefrequired by sections 500.2, 500.12[h] and 500.14[g] of the rules are in PDF format and are identical to the filed original printed material. DATED: April 17, 2014 Riverhead, New York ./ .&NNEE. OH Assistant District Attorney OfCounsel to THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant 17 Sworn to before me this 17th day of April, 2014. AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) KRYSTINA MOORE, being duly sworn, deposes and says: That on the 17th day of April, 2014, I served three (3) copies of the within Appellant's Reply Brief upon the defendant, MARK GARRETT, by Express Mail, through their attorney, Steven A. Feldman, ESQ., by depositing a true copy of same enclosed in a postpaid wrapper in the official depository maintained and controlled by the United States Postal Service, at Criminal Courts Building, 200 Center Drive, Riverhead, New York 11901, directed to said defendant's attorney at Feldman and Feldman, 626 EAB Plaza, West Tower, 6th Floor, Uniondale, New York 11556, the address designated by the attorney or the place where they then kept an office. Deponent is over the age of eighteen (l &) years. <: .> THOMAS C. COSTELLO Notary Public, State of New York Registration #02C05036155 Qualified In Suffolk County Commission Expires November 21,2014