Bronx District Attorney Robert Johnson’s suggestion in his Aug. 1, 2012 letter to the editor, in response to Marvin Schechter’s column in the state bar’s Criminal Justice Section newsletter, that his office complied with its Brady obligations in People v. Waters, 571/2007, is disingenuous and simply wrong. The decision, though, is important reading for those who want to understand the Brady rule.

In Waters, the prosecutor failed to disclose a statement made by an eyewitness which was directly contrary to another statement made by that same witness which went to the heart of the case.

The court explained that: “Under Brady, the People are required to disclose, in advance of trial, evidence which is favorable to the accused. Brady v. Maryland, 373 U.S. 83. Disclosure of such evidence must be made in time for the defense to use it effectively. People v. White, 178 A.D.2d 674. Evidence that the defendant is entitled to is not limited solely to evidence which supports the defendant’s trial theory. It also includes evidence which would bear on trial strategy. United States v. Bagley, 473 U.S. 667. When reliability of a given witness may be dispositive of guilt or innocence, material evidence affecting that witness’s credibility constitutes exculpatory evidence. Giglio v. United States, 405 U.S.150. “

The Waters court also said:

“The prosecutor’s ‘trial by ambush’ tactic resulted in both unfairness and inefficiency”; “The prosecutor’s failure to disclose this information is inexcusable”; “It is fundamentally unfair and a clear violation of a defendant’s right to due process for a prosecutor to present testimony that he knew, or should have known, was perjured”; “It appears that he has granted [the witness] immunity from prosecution for his perjury, something heretofore unheard of by this Court”; “However deplorable the Court finds the prosecutor’s conduct, dismissal is not an appropriate sanction, as society should not be punished for the misconduct of the prosecutor.”

Despite these findings Johnson is still defending the conduct of his assistant and assailing Schechter for pointing out the deficiencies in his assistant’s conduct and lamenting the poor training received by assistant district attorneys. What sanction did his office level on the assistant whose “inexcusable” and “deplorable” “misconduct” resulted Waters? None.

That’s the most important training that prosecutor’s get. This just supports the fact that “they just don’t get it.”

Daniel N. Arshack
New York, N.Y.