A Guide to Effective Brady Motions

Discouraged by the Strickler standard, which makes it nearly impossible for the defendant to show before trial that evidence is subject to pretrial disclosure, defense attorneys often just try to preserve issues for appeal by filing routine Brady motions requesting exculpatory and impeachment material in all too general terms. Such motions fail to assist the court's understanding of possible Brady topics or prompt the government to think carefully about potentially exculpatory materials in its possession.

The Safavian Decision

United States v. Safavian stands out as a recent case where the court rejected the Strickler materiality standard and ordered the government to produce, well before trial, 'any potentially exculpatory or otherwise favorable evidence without regard for how the evidence may be viewed ' with the benefit of hindsight ' as affecting the outcome of trial.' U.S. v. Safavian, 233 F.R.D. 12 (D.D.C. 2005); see also, U.S. v. Acosta, 357 F. Supp. 2d 1228 (D. Nevada 2005); U.S. v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999). These cases make clear that the defense should file detailed Brady requests, and that the government must review specific requests carefully and file meaningful responses well in advance of trial.

In Safavian, the defendant was charged in a five-count indictment with three counts of making false statements (18 U.S.C. ' 1001) and two counts of obstruction of justice (18 U.S.C. ' 1505). While Safavian was a government employee, he sought an ethics opinion from the General Services Administration (GSA)'s ethics officer as to whether he could accept a golf outing to Scotland from lobbyist Jack Abramoff. Safavian told the officer that Abramoff had no business before the GSA and did all his lobbying on Capitol Hill. The government charged that this was a knowing misrepresentation and resulted in Safavian's improperly obtaining permission for the trip. The indictment also alleges that Safavian made false statements to the FBI and the GSA's Office of Inspector General (GSA-OIG).

Safavian filed a motion seeking documents in the government's possession, custody or control that are necessary and material to the preparation of his defense (Rule 16(a)) or constitute exculpatory material pursuant to Brady and its progeny. In his ruling, Judge Paul Friedman noted that the government was required by Rule 16(a)(1)(A) to produce any statements made by the defendant in response to interrogation by a person he knew to be a government agent if prosecutors intend to use the statement at trial, specifically including by name 'questions put to Mr. Safavian by the GSA Office of the Inspector General (OIG) as well as questions put to him by the FBI and other law enforcement agencies.' The court also observed that the government was required to provide any written or recorded statement by Safavian that the government has and prosecutors know about (or should know through due diligence), even where there was no government interrogation. Rule 16(a)(1)(B)(i). Finally, the court ordered that the government disclose any items that are 'material to preparing the defense.' Rule 16(a)(1)(E).

Turning to the Brady requests, Judge Friedman noted the government's position that it was required to turn over material only if there was a reasonable probability that the result at trial would be different if the evidence is disclosed ' the Strickler standard. As the court pointed out, however, Strickler was a response to Brady challenges during the post-conviction process for appellate review. The standard does not deal with a defendant's rights pretrial. Using Strickler to limit the government's pretrial disclosure would undermine Brady in its entirety.

Another problem with the Strickler standard is that it relies on the government's unilateral determination ' long before the jury returns a verdict and before the trial even commences ' of what evidence is 'favorable' to the defendant and will affect the outcome at trial. The court noted that prosecutors are neither 'objective' nor 'prescient.' In fact, it would be impossible for any advocate or even judge to predict what evidence is 'material' under the Strickler standard before pretrial motions are decided and before the first witness takes the stand. 'The prosecutor cannot be permitted to look at the case pretrial through the end of the telescope an appellate court would use post-trial,' Judge Friedman wrote.

Accordingly, the court concluded that the government must always produce any potentially exculpatory or otherwise favorable evidence without regard for how the evidence may be viewed with the benefit of hindsight. In so doing, the court rejected using the Strickler standard of materiality to limit the government's pretrial disclosure in a criminal proceeding.

Judge Friedman then turned his attention to the question of what might be considered 'favorable' evidence. The court found that any information related to guilt or punishment that tends to help the defendant by bolstering his case or impeaching a government witness should be considered 'favorable.' To resolve the 'close calls,' the court suggested that all doubts by the government as to whether evidence was favorable should be resolved in favor of disclosure.

Judge Friedman also ruled that exculpatory statements by government witnesses must be disclosed before trial notwithstanding 18 U.S.C. ' 3500, which generally immunizes such statements from pretrial discovery ('no statement ' by a Government witness ' shall be the subject of … discovery ' until said witness has testified on direct examination in the trial of the case'). Judge Friedman found, however, that the government's Brady obligations trump the timing of disclosure under ' 3500 and ordered disclosure of exculpatory portions of the '3500 material' pretrial.

The Safavian decision makes clear that there are judges who, when presented with the appropriate facts, case law, and creativity, will require the government pretrial to cull files for Brady material and respond to specific defense requests. Judge Friedman's thoughtful opinion rejects the 'rear view mirror' rationale of Strickler in favor of full and early disclosure ' a standard that is workable in the pretrial setting. Further, in rejecting a government motion for clarification, Judge Friedman wrote: 'There simply is a need for the Justice Department to change the mindset of its trial prosecutors to assure that its approach to Brady is broad and open, 'consistent with the special role of the American prosecutor for truth in criminal trials,” quoting Berger v. United States, 295 U.S. 78, 88 (1935).

Practice Considerations

Defense attorneys should file detailed Brady requests at the earliest discovery stage. Such motions should go beyond the perfunctory 'disclose all favorable evidence.' They should address the nature of the indictment, specify the areas for which Brady material may exist, cite legal authority, provide definitions along with specific requests, and seek an order requiring prompt pre-trial disclosure. See, eg, Defendant's Mem-orandum of Law in Support of Motion for Timely Production of Exculpatory Material and Disclosure of Impeach-ment Information in United States v. Conrad Black et al., 05 CR 727, U.S.D.C., N.D.IL. filed on March 31, 2006. Finally, Brady motions should seek not only exculpatory evidence as to guilt, but also any evidence that may mitigate punishment.

In this era of increasingly complex indictments of corporations and corporate officers, a defendant's Brady motion is one of counsel's earliest opportunities to educate the court about a white-collar criminal defense and to obtain favorable evidence from the government both as to guilt and punishment. A detailed motion will force prosecutors to think seriously about their Brady obligations and to disclose exculpatory information or risk sanctions. As Judge Friedman emphasized in Safavian, the government's approach to Brady obligations should be 'open and broad.' It should also be timely.

Robert W. Tarun, a member of the Board of Editors of this newsletter, and Deborah L. Steiner, both of Latham & Watkins LLP in Chicago and both former federal prosecutors, represent the misunderstood in federal criminal matters across the country.

Too often, criminal defense attorneys file boilerplate 'Brady motions' seeking in essence 'any and all information which may be favorable to the defendant and material to the issue of guilt or punishment.' Brady v. Maryland, 373 U.S. 83 (1963). Prosecutors respond in cookie cutter form that they are 'aware of their Brady obligation and will disclose such evidence when and as appropriate.' This might be on the eve of trial, mid-trial, or even post-trial. If truly pressed at the motion stage with a detailed Brady request, some prosecutors and courts have relied on Strickler v. Greene , 527 U.S. 263, 280 (1999), as grounds for denying the defense request.

The Strickler Rear-View Mirror Standard

Under Strickler, evidence is considered Brady material, subject to disclosure, only if there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. This standard is widely accepted in every circuit and even cited by some defense attorneys making motions for Brady material. Yet, use of this standard in practice is virtually impossible, since it requires the government, an advocate in the case, to look narrowly into its crystal ball and unilaterally determine whether a piece of evidence might alter the outcome of the trial. As a result, the protections that Brady was intended to ensure are lost.

Discouraged by the Strickler standard, which makes it nearly impossible for the defendant to show before trial that evidence is subject to pretrial disclosure, defense attorneys often just try to preserve issues for appeal by filing routine Brady motions requesting exculpatory and impeachment material in all too general terms. Such motions fail to assist the court's understanding of possible Brady topics or prompt the government to think carefully about potentially exculpatory materials in its possession.

The Safavian Decision

United States v. Safavian stands out as a recent case where the court rejected the Strickler materiality standard and ordered the government to produce, well before trial, 'any potentially exculpatory or otherwise favorable evidence without regard for how the evidence may be viewed ' with the benefit of hindsight ' as affecting the outcome of trial.' U.S. v. Safavian , 233 F.R.D. 12 (D.D.C. 2005); see also , U.S. v. Acosta , 357 F. Supp. 2d 1228 (D. Nevada 2005); U.S. v. Sudikoff , 36 F. Supp. 2d 1196 (C.D. Cal. 1999). These cases make clear that the defense should file detailed Brady requests, and that the government must review specific requests carefully and file meaningful responses well in advance of trial.

In Safavian, the defendant was charged in a five-count indictment with three counts of making false statements (18 U.S.C. ' 1001) and two counts of obstruction of justice (18 U.S.C. ' 1505). While Safavian was a government employee, he sought an ethics opinion from the General Services Administration (GSA)'s ethics officer as to whether he could accept a golf outing to Scotland from lobbyist Jack Abramoff. Safavian told the officer that Abramoff had no business before the GSA and did all his lobbying on Capitol Hill. The government charged that this was a knowing misrepresentation and resulted in Safavian's improperly obtaining permission for the trip. The indictment also alleges that Safavian made false statements to the FBI and the GSA's Office of Inspector General (GSA-OIG).

Safavian filed a motion seeking documents in the government's possession, custody or control that are necessary and material to the preparation of his defense (Rule 16(a)) or constitute exculpatory material pursuant to Brady and its progeny. In his ruling, Judge Paul Friedman noted that the government was required by Rule 16(a)(1)(A) to produce any statements made by the defendant in response to interrogation by a person he knew to be a government agent if prosecutors intend to use the statement at trial, specifically including by name 'questions put to Mr. Safavian by the GSA Office of the Inspector General (OIG) as well as questions put to him by the FBI and other law enforcement agencies.' The court also observed that the government was required to provide any written or recorded statement by Safavian that the government has and prosecutors know about (or should know through due diligence), even where there was no government interrogation. Rule 16(a)(1)(B)(i). Finally, the court ordered that the government disclose any items that are 'material to preparing the defense.' Rule 16(a)(1)(E).

Turning to the Brady requests, Judge Friedman noted the government's position that it was required to turn over material only if there was a reasonable probability that the result at trial would be different if the evidence is disclosed ' the Strickler standard. As the court pointed out, however, Strickler was a response to Brady challenges during the post-conviction process for appellate review. The standard does not deal with a defendant's rights pretrial. Using Strickler to limit the government's pretrial disclosure would undermine Brady in its entirety.

Another problem with the Strickler standard is that it relies on the government's unilateral determination ' long before the jury returns a verdict and before the trial even commences ' of what evidence is 'favorable' to the defendant and will affect the outcome at trial. The court noted that prosecutors are neither 'objective' nor 'prescient.' In fact, it would be impossible for any advocate or even judge to predict what evidence is 'material' under the Strickler standard before pretrial motions are decided and before the first witness takes the stand. 'The prosecutor cannot be permitted to look at the case pretrial through the end of the telescope an appellate court would use post-trial,' Judge Friedman wrote.

Accordingly, the court concluded that the government must always produce any potentially exculpatory or otherwise favorable evidence without regard for how the evidence may be viewed with the benefit of hindsight. In so doing, the court rejected using the Strickler standard of materiality to limit the government's pretrial disclosure in a criminal proceeding.

Judge Friedman then turned his attention to the question of what might be considered 'favorable' evidence. The court found that any information related to guilt or punishment that tends to help the defendant by bolstering his case or impeaching a government witness should be considered 'favorable.' To resolve the 'close calls,' the court suggested that all doubts by the government as to whether evidence was favorable should be resolved in favor of disclosure.

Judge Friedman also ruled that exculpatory statements by government witnesses must be disclosed before trial notwithstanding 18 U.S.C. ' 3500, which generally immunizes such statements from pretrial discovery ('no statement ' by a Government witness ' shall be the subject of … discovery ' until said witness has testified on direct examination in the trial of the case'). Judge Friedman found, however, that the government's Brady obligations trump the timing of disclosure under ' 3500 and ordered disclosure of exculpatory portions of the '3500 material' pretrial.

The Safavian decision makes clear that there are judges who, when presented with the appropriate facts, case law, and creativity, will require the government pretrial to cull files for Brady material and respond to specific defense requests. Judge Friedman's thoughtful opinion rejects the 'rear view mirror' rationale of Strickler in favor of full and early disclosure ' a standard that is workable in the pretrial setting. Further, in rejecting a government motion for clarification, Judge Friedman wrote: 'There simply is a need for the Justice Department to change the mindset of its trial prosecutors to assure that its approach to Brady is broad and open, 'consistent with the special role of the American prosecutor for truth in criminal trials,” quoting Berger v. United States , 295 U.S. 78, 88 (1935).

Practice Considerations

Defense attorneys should file detailed Brady requests at the earliest discovery stage. Such motions should go beyond the perfunctory 'disclose all favorable evidence.' They should address the nature of the indictment, specify the areas for which Brady material may exist, cite legal authority, provide definitions along with specific requests, and seek an order requiring prompt pre-trial disclosure. See, eg, Defendant's Mem-orandum of Law in Support of Motion for Timely Production of Exculpatory Material and Disclosure of Impeach-ment Information in United States v. Conrad Black et al., 05 CR 727, U.S.D.C., N.D.IL. filed on March 31, 2006. Finally, Brady motions should seek not only exculpatory evidence as to guilt, but also any evidence that may mitigate punishment.

In this era of increasingly complex indictments of corporations and corporate officers, a defendant's Brady motion is one of counsel's earliest opportunities to educate the court about a white-collar criminal defense and to obtain favorable evidence from the government both as to guilt and punishment. A detailed motion will force prosecutors to think seriously about their Brady obligations and to disclose exculpatory information or risk sanctions. As Judge Friedman emphasized in Safavian, the government's approach to Brady obligations should be 'open and broad.' It should also be timely.

Robert W. Tarun, a member of the Board of Editors of this newsletter, and Deborah L. Steiner, both of Latham & Watkins LLP in Chicago and both former federal prosecutors, represent the misunderstood in federal criminal matters across the country.