Tuesday, November 7, 2017

Brady: Not just a jury trial right

Looking for persuasive authority that the district court can grant your Brady motion for information related to a motion to suppress or dismiss? Check out footnote 10, buried deeply within United States v. Wells, a Tenth Circuit case decided last month.

Mr. Wells and his codefendant were convicted of misdemeanor trespassing for operating ATVs on federal land closed by the Bureau of Land Management for that purpose during a land-use protest. On appeal, they argued (among other things) that the district court should have granted them a new trial based on their Brady claim that the government failed to disclose a right-of-way map that they could have used to negate the legality of BLM's closure order.

The Tenth Circuit rejected this argument, holding that the evidence was not material to the claimed defense. On the way to that holding, the Court declined to adopt the government's position "that evidence relevant to a ruling made by a judge—as opposed to a factual finding made by a jury—cannot, as a categorical matter, constitute Brady material":

"Under the circumstances of this case, we are not persuaded by the government's argument, though we need not definitively opine on the matter. . . . [T]he government . . . offers no legal authority to support its underlying premise—viz., that a Brady claim cannot be based on a piece of evidence that could only affect a question to be decided by the court rather than the jury—and we have not unearthed any. For example, can it truly be said that such evidence can never, as a categorical matter, engender 'a reasonable probability that the result of the proceeding would have been different'? Reese, 745 F.3d at 1083. It is enough for us to note that, in light of the government's scant presentation here, we may assume that Defendants-Appellants could make a Brady argument based on the suppression of evidence pertinent to an R.S. 2477 defense in a criminal prosecution."

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