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When Maurice Sykes was convicted of murdering the son of a Bulgarian diplomat nine years ago, the case received a smattering of media coverage and was quickly forgotten. But now, Sykes has become something of a cause c�l�bre to D.C. criminal defense lawyers, who have long complained that prosecutors routinely withhold evidence that could clear defendants. In March the D.C. Court of Appeals threw out Sykes’ conviction because the government waited more than a year before revealing evidence that could have changed the outcome of his trial. “For the defense bar this was cataclysmic,” says criminal defense lawyer Bernard Grimm, who represented Sykes during his trial, “because for the first time, the court provided unequivocal guidance about timing.” The opinion is already having an impact on criminal cases in D.C. Superior Court. One judge ordered a mistrial in a murder case after finding the U.S. Attorney’s Office improperly withheld information from the defense. And D.C. defense attorneys say at least six other trials have been postponed for similar reasons. Defense lawyers and prosecutors have long been engaged in a tug of war over when the government must turn over evidence that can assist the defense’s case. In the District, defense lawyers commonly complain that the government routinely waits as long as possible before disclosing information — usually just before a trial begins — about witnesses or facts that could impeach or contradict other witnesses in the case. The Sykes case, they say, could change that. Although the March 9 opinion did not set new precedent, defense lawyers say it was the first time the court reversed a conviction explicitly based on the point in time when the government disclosed the existence of exculpatory evidence. “It is a big deal because it reminds the trial court that this is an issue where they can get reversed,” says Mark Rochon, a partner at Miller & Chevalier and the former trial chief of the Public Defender Service for the District of Columbia. “This court does not do that very often.” THE BRADY BUNCH When investigating a case and preparing for trial, the government has access to all kinds of evidence, such as police interviews and grand jury transcripts, that a defense attorney does not. To balance the inherent unfairness, the Supreme Court has ruled that the prosecution must turn over any evidence it comes across that may be helpful to the other side. In the 1963 Supreme Court case Brady v. Maryland, the Court held that failure by the government to reveal evidence that could help a defendant’s case violates a person’s right to a fair trial. But while Brady is clear on the government’s obligation to turn over evidence that could be beneficial to the defense, the decision leaves open to interpretation precisely what type of evidence falls within that category and exactly when such evidence must be handed over. That’s left prosecutors and defense lawyers to fight it out before trial, which they routinely do in Washington. “What is Brady and what is not will always be a source of contention between defense attorneys and prosecutors,” says Roscoe Howard Jr., a former U.S. attorney in the District and a partner at Troutman Sanders. One way for prosecutors to handle the tension, Howard says, is to turn over everything in a timely manner. But he concedes that since decisions about what evidence is considered Brady are left to individual assistant U.S. attorneys, “I’ve got no doubt that some guys are holding on to it.” Some states, including Maryland and Virginia, have dealt with Brady requirements by implementing a more open discovery system. In those states the U.S. Attorney’s Office made the decision that it is easier to turn over the whole case file, with few exceptions, than to worry about hashing out disputes in court. “We produce everything,” says Thomas DiBiagio, the former U.S. attorney for Maryland and a partner at Beveridge & Diamond. DiBiagio says that Maryland’s open system leads to few discovery disputes between the defense and the government. The only time his attorneys held back information, he says, was over concerns for witness safety. Paul Kemp, a former public defender in Maryland who is now a partner at Venable, says the government typically provides a discovery letter in which it promises to provide all of the relevant information, usually about two weeks before a trial, and in return, defense attorneys agree to do the same. Sometimes, he says, the government will turn over so much discovery material that a defense attorney may even miss a crucial piece of evidence because it is buried within all the paperwork. In the District it’s different. After defense lawyers file a general request for Brady information at the beginning of a case, they still must follow up sometimes with multiple requests for specific information during the course of discovery. It is common for disputes about what constitutes Brady evidence and when prosecutors chose to disclose it to end up before a judge — sometimes on the eve of trial. Channing Phillips, a spokesman for the U.S. Attorney’s Office in Washington, declined to comment on the Sykes case or how the D.C. office handles Brady decisions. WHAT WITNESSES? The case that led to the Sykes appellate opinion began more than a decade ago, when a diplomat’s son was killed and another man was badly beaten in a vicious robbery gone bad on the steps of the Bulgarian Embassy. Maurice Sykes and two other men were charged in the attack after a paid police informant said he heard them confess. Two days before Sykes’ trial was set to begin in April 1997, prosecutors dropped a bombshell: More than a year earlier, two witnesses had testified before the grand jury and contradicted their informant’s account. The prosecutor, Mary Incontro, didn’t tell the defense about the testimony earlier in order to protect the identity and safety of the informant, according to court papers. But she assured then-D.C. Superior Court Judge Reggie Walton that one of the men, Wayne Sellers, was currently in jail and available to testify at the trial. The other man, Tony Parrott, however, was missing. When defense attorneys learned about the new witnesses, they immediately sent their own investigators to find Parrott. But by the first day of trial no one was able to locate him. With Parrott missing, Walton offered to continue the case to give the attorneys more time but declined to dismiss the case or strike the informant’s testimony. Instead, Walton — now a D.C. federal judge — allowed the defense to read parts of Parrott’s grand jury testimony to the jury. About two weeks into the trial, Incontro revealed that Sellers was also missing, claiming he was accidentally released from the D.C. jail. Incontro said police were searching for him, but by closing arguments he hadn’t turned up. Walton allowed the defense to read portions of Sellers’ grand jury testimony, as well. In April 1997, Sykes was convicted of first-degree felony murder, attempted armed robbery, and other gun charges. He was later sentenced to 30 years to life. It took seven years to get Sykes’ case before the D.C. appeals court and another two years for a decision. But the three-judge panel found that the late disclosure of the existence of the two witnesses and the inability of anyone to find them violated Sykes’ right to a fair trial. “[T]here was a reasonable probability that the outcome would have been different had the defense been able to present at trial one or both of the witnesses whose grand jury testimony rebutted that of a key government witness,” wrote Judge Inez Smith Reid, who was joined by Judges Michael Farrell and Stephen Glickman. TRIALS ON HOLD Defense lawyers wasted little time in using their new ammunition. On April 18, three days into Antonio Clark’s third trial for first-degree murder, Judge Hiram Puig-Lugo declared a mistrial after he found the government had withheld Brady evidence. Clark’s attorney, Mary Kennedy, trial training counsel at Arnold & Porter, says the mistrial occurred after she requested a copy of a police radio run that she believes contained information about another possible suspect in the shooting death of Clark’s former roommate. Her request was denied by Judge Judith Retchin during Clark’s second trial, but Kennedy says she tried again while preparing for the third trial because some of the testimony from the previous trial led her to believe the recording contained information that could help her client. Prosecutors argued that the radio tape was not exculpatory and, therefore, it did not need to be turned over to the defense. This time, Kennedy says, Puig-Lugo listened to the tape and immediately ordered that it be turned over. In declaring the mistrial, Puig-Lugo cited a list of 23 cases that Clark’s lawyers had attached to their motion to dismiss showing other instances where the government had withheld Brady evidence in the past. “I probably would have made the request regardless,” Kennedy says, “but I think Sykes made everyone more sensitive.” Another recent case involved Gregory Terrell, accused of assault with intent to kill. On the eve of his trial the government disclosed that four witnesses had made deals with the government in exchange for their testimony against Terrell. The late disclosure came despite the fact that a trial judge had ordered the government to reveal all Brady evidence two weeks earlier. On March 30, Terrell’s attorney, Veronice Holt, asked the court for, and was granted, a continuance. In her motion, Holt argued that the appeals court in Sykes specifically rejected this type of late disclosure. At a hearing, Judge Wendell Gardner Jr. agreed, and according to those present in the courtroom, the judge admonished Assistant U.S Attorney Michael Liebman for his failure to disclose the information in a timely manner. Some D.C. defense lawyers say that since the Sykes opinion was issued, D.C. judges have been more receptive to their complaints about evidence not being turned over by the government, and at least five other trials have been put on hold due to late disclosures. Despite the effect the opinion is having on criminal cases, the U.S. Attorney’s Office decided not to ask the appeals court for a rehearing and has yet to make a decision on whether to retry Sykes. And defense lawyers say the true magnitude of Sykes won’t be known until cases start appearing before the appeals court. “ Sykes has now been written in stone,” Grimm says. “The court finally put its foot down.”
Bethany Broida can be contacted at [email protected].

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