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Prosecutors do not have to turn over exculpatory and impeachment materials to the defense on demand, the 2nd U.S. Circuit Court of Appeals has ruled. In a decision keenly awaited by prosecutors and the defense bar, the 2nd Circuit said U.S. Supreme Court precedent requires only that such materials be provided to the defense in time for their use at trial. In United States v. Coppa, 01-3031, the court overruled Eastern District of New York Senior Judge I. Leo Glasser, who had found that the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny require the government to disclose materials immediately, even if the defense requests them far in advance of trial. The decision came on a petition for writ of mandamus sought by prosecutors in Coppa, which involved stock fraud and money laundering allegations. Long before a trial date had been set, Glasser ruled that the Brady Court’s admonition that a defendant’s constitutional rights are violated where the prosecution fails to produce exculpatory evidence “on demand of the accused” should be taken literally. Glasser’s decision came on the heels of his similar ruling in the case of United States v. Shvarts, 90 F.Supp. 2d 219 (E.D.N.Y. 2000). There the prosecution had agreed to turn over all materials under Brady, but had refused to provide any impeachment materials relating to potential government witnesses, as required by Giglio v. United States, 405 U.S. 150 (1972). The prosecution argued Giglio required only that the impeachment materials be disclosed in time for trial. Although prosecutors did not challenge the Shvarts ruling, they used the Coppa case to challenge his interpretation of both Brady and Giglio. Oral arguments on the petition were heard by the 2nd Circuit in May. The New York Council of Defense Lawyers and two other defense bar organizations filed amicus curiae arguing that the unwillingness of prosecutors to hand over exculpatory and impeachment materials on demand put defendants at a disadvantage. Second Circuit Judge Jose A. Cabranes said the court is normally reluctant to entertain what it called the “extraordinary remedy” of a petition for a writ of mandamus. But the court would entertain such a petition, he said, to “cure a defective pretrial discovery order” if there is a novel or significant question of law at stake, a lack of adequate alternative remedies and the court is presented with a legal issue “whose resolution will aid in the administration of justice.” Cabranes said there was a “significant divergence of views among district judges of this Circuit concerning the correctness of the District Court’s ruling,” and resolving it would aid the administration of justice. And prosecutors, he said, had “no other means” of protecting their interests other than by the filing of the petition. Without mandamus, he said, “the Government would either have to comply with the District Court’s scheduling order, or risk contempt for failure to comply, exclusion of its witnesses, or dismissal of the indictment.” Moreover, he said, compliance with the order would require the prosecution to “identify many of its potential witnesses to the defense far in advance of trial, which would run afoul of the Jencks Act and Federal Rule of Criminal Procedure 26.2. Both the Jencks Act, 18 U.S.C. �3500, and Rule 26.2 say that no statement of a government witness or a prospective government witness is subject to discovery until that witness has testified on direct examination. TIMING OF ‘BRADY’ Having decided to take the petition, the court said the district court “erred with respect to both the scope and the timing of the disclosure required by the Constitution” as interpreted in Brady. In the evolving case law following Brady, Judge Cabranes said, the nature of the prosecutor’s duty to disclose has shifted from “an evidentiary test of materiality that can be applied rather easily to any item of evidence” to a results-based test “that obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if the disclosure had been made.” In this case, Cabranes said, the parties agreed that Judge Glasser used the terms “ Brady material” and “ Giglio material” to mean all exculpatory and impeachment evidence, and that Glasser had ordered disclosure of all impeachment evidence in the government’s possession without regard to its materiality. “Neither the Supreme Court nor any Court of Appeals has given the words in Brady, ‘on demand of the accused,’ the temporal significance attributed to these words by the District Court,” Judge Cabranes said. In fact, he said, the high court’s use of that phrase appears to signify “the importance that the Supreme Court placed in the 1960s and 1970s on whether a defendant had actually requested exculpatory material.” “In nearly four decades of jurisprudence, the Supreme Court has never suggested that the reference reflected a constitutional duty to disclose Brady and Giglio material as soon after indictment as such materials are requested,” he said. Senior Judge Jon O. Newman, and Judge Stefan R. Underhill of the U.S. District Court for the District of Connecticut, sitting by designation, joined in the opinion. Eastern District U.S. Attorney Eric Corngold represented the government. Jay Goldberg, Andrew Weinstein, Jeffrey Lictman, Joseph Bondy and Larry Bronson represented defendant Frank Coppa. John H. Doyle III and Victor J. Rocco of the New York Council of Defense Lawyers weighed in as amicus curiae.

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