Essential information for investigators, support staff, and victim assistance coordinators

Colleen Gaido

Assistant District ­Attorney in Harris County

A quick lesson on exculpatory evidence—also known as Brady material—for non-lawyer staff in a prosecutor’s office

When TDCAA asked me to write an article about Brady for prosecutor support staff, I thought, “What better way to begin the article than with stories from my favorite secretaries, investigators, and victim assistance coordinators about encountering Brady in their day-to-day work life?” After all, many of them have been at their jobs longer than I have been a prosecutor and are so great at what they do that I am half-convinced that they could come to court on any given day and be as effective a prosecutor as anyone.
    So I sent out an email soliciting “a story about encountering Brady” to my favorite support staff. The response? Crickets. I sent the email to over a dozen people and got just one response. This response came from the best secretary I have had at any job I’ve ever held and that she’s probably forgotten more about the workings of our office than I’ll ever know.
        She replied while she couldn’t remember anything specific, there were many times where defendants had called and asked when they could get their guns back. I responded that while I didn’t think that qualified as Brady, it was very funny. She in turn replied to say, “I thought the Brady law was the gun control thing. John Hinckley shot James Brady, and President Clinton signed the Brady handgun law into effect. Right?”
    My first thought was that she clearly knew more about the Brady handgun legislation than I did. But my second was that I had my answer as to why nobody else responded to my email: Perhaps the support staff didn’t know what I was talking about when I said “Brady.” And really, why should they? It is one of those terms that we as prosecutors throw around casually while everyone who isn’t a prosecutor looks at us like we are speaking Greek (see also Batson, Crawford, and Miranda). But much like police officers need to be familiar with Miranda, support staff (and police officers) need to be familiar with Brady and how to recognize it.

First things first
So what do we mean by “Brady?” Brady is the term that we use to describe evidence that is both favorable and material to the defendant. The term comes from the landmark United States Supreme Court case Brady v. Maryland.
    In 1958 John Brady was charged with murder along with a co-defendant named Donald Boblit for kidnapping William Brooks and killing him for his car. Both Brady and Boblit gave numerous statements to the police after their arrests, but in Boblit’s fifth statement he admitted to being the one who actually strangled the victim. Brady’s defense attorney asked for all of Brady’s and Boblit’s statements, but the prosecutors withheld Boblit’s fifth statement. Both defendants were convicted of first-degree murder and sentenced to death.
    The Supreme Court ruled that withholding that statement by Brady’s co-defendant violated Brady’s right to due process. While that statement had little to do with whether Brady or Boblit were guilty of first-degree murder (both clearly were), the Supreme Court stated that the issue of who had actually strangled the victim could have impacted the punishment phase of trial.
    For evidence to be considered “Brady,” it must be both favorable and material to the defense. In other words, it must be helpful to the defendant’s case at either the guilt-innocence or punishment phase of trial. A good friend of mine describes Brady material as anything that makes the prosecutor say, “Oh, &%$#—that can’t be good for us.” While that may not be the standard that the courts use, it’s a helpful way to think about Brady. There are countless cases on what is considered “favorable” and “material,” but it is always better to err on the side of caution and over-disclose.
In the State’s possession
The State is obligated to share with the defense attorney only the Brady material that is in our possession. If the State doesn’t know about a piece of exculpatory evidence, then it isn’t required to disclose it because, hey—we didn’t even know it existed.
    But—and here is why you are still (I hope) reading this article—the “State” is more than just the prosecutor. For purposes of Brady evidence, the State includes police officers, administrative staff, investigators, and victim assistance coordinators. Basically the courts look at all of us as being on the same team (we’ll call it Team State) and if one person on Team State knows about a piece of Brady evidence, then that piece of evidence is in all of Team State’s possession and must be disclosed.
    That means that even if I as a prosecutor do not know that a certain piece of Brady evidence exists, I am still under a duty to disclose it to the defense attorney if someone else on Team State knew about it. That is why it is so important that we make sure that we share any Brady information that we learn about with one other.

Why it matters
The failure to disclose exculpatory evidence to the defense can result in a mistrial or in a guilty verdict being reversed on appeal. It can also result in State Bar sanctions at the least for the prosecutor who failed to disclose that evidence. Even without a formal sanction, withholding Brady evidence can hurt the reputation of a prosecutor and by association the office in which she works.
    Beyond those undesirable repercussions, there is another important reason to make sure that every member of Team State knows about all Brady evidence. If our goal is to make sure that justice is done, then we must know everything we can about a case. We are as duty-bound to ensure that the innocent are not prosecuted as we are to make sure that the guilty are held accountable. We can fulfill that duty only when we have all of the information.
    Let’s look at some examples.

The recanting complainant
If you have been at your office longer than a week, you have no doubt encountered a recanting or minimizing complainant, most likely on a family violence case. Let’s say you are the administrative assistant for a prosecutor, and the complainant—we’ll call her Julia—calls to speak with the prosecutor assigned to her assault (family member) case. When you ask her what the call is regarding, Julia says, “I need to tell her that I want to drop charges. I was drunk, I overreacted, and he never actually hit me. I really need her to call me back.” You take down her name and number and send the prosecutor an email telling her to call Julia back.
    Both the fact that the complainant does not want to press charges and the fact that she said that the assault never took place fall under Brady. If you get a call like this, you should let the prosecutor handling the case know exactly what the complainant said so that she can relay that to the defense attorney.
    Now let’s say that after speaking with Julia, you see the photographs of her face from the night of the assault and she is covered in bruises. You are convinced that she was, in fact, assaulted and that she is now lying because she doesn’t want the defendant to get in trouble. Do you still need to tell the prosecutor? Yes. Even if you are convinced that what the complainant told you in her later message is not true, you still need to let the prosecutor know.

The second gunman
on the grassy knoll
Many times our fearless investigators go out into the community to find our witnesses and end up finding witnesses we didn’t even know existed. People who were scared to talk to the police the night of the murder suddenly can’t stop talking about everything they know (or have heard) about what happened during the crime. We hope that a lot of the information they share is both helpful and true.
    But what if you find a witness who swears she saw someone else shoot the complainant? Or says the defendant wasn’t even there that night? Or even says the defendant shot the complainant but only because the complainant had picked up a gun and threatened the defendant first? All of that information is exculpatory and needs to be shared with the prosecutor immediately.
    Now let’s say that this new witness is 95 years old and legally blind; she has repeatedly run into things during your interview because she can’t see 10 feet in front of her. You are pretty convinced that she couldn’t see the biggest E on an eye exam chart, much less a shooting that took place 50 yards away. Do you still tell the prosecutor? Yes. Even if the exculpatory evidence does not seem credible to you, it must be disclosed.

The suddenly somewhat ­sympathetic defendant
There can be times when a complainant is reluctant to share everything with the prosecutor handling her case. Because many of us have talented victim assistance coordinators (VACs) who establish relationships with our complainants, we are able to learn more about what happened from the VAC’s conversation with that complainant than we ever would have on our own.
    Let’s say that you are a VAC and you have been asked to sit with a 16-year-old complainant while she waits to testify in a sexual assault of a child case. The complainant has told the police and the prosecutor that she met the 25-year-old defendant only one time at a party and that after much intimidation and pressure on his part, she reluctantly had sex with him. Right before her testimony she confides in you that she and the defendant had actually been dating for a year prior to having sex. She also tells you that he repeatedly told her that he would not have sex with her because she was underage but she insisted and insisted until finally one night he gave in. Do you have to tell the prosecutor?
    Clearly this does not change whether the defendant is guilty of sexual assault of a child. He still had sex with a girl under the age of 17 and he was more than three years older than she. But remember that Brady doesn’t apply just to exculpatory evidence at the guilt-innocence stage of trial; it applies to mitigating evidence at the punishment phase as well. A jury is likely to have much more sympathy for the defendant who refused his underage girlfriend repeatedly than for the Lothario who pressured a 16-year-old girl he had just met into having sex. Therefore, the prosecutor needs to know about it and tell the defense about it.

Team State
For purposes of Brady evidence, it is helpful to think of all of us as being on one team, Team State. What one of us knows, all of us must know. And while that means we must be more diligent about sharing information with one another, I personally like the idea of all of us being on a team. The job we have is an important one, and none of us can effectively seek justice alone. We need the help of everyone on Team State to make sure that the right thing happens in every case we handle. By sharing exculpatory and mitigating evidence with each other we can help ensure that we achieve that goal.