The First Circuit Court of Appeals reversed two District Court decisions excluding cooperating witnesses from testifying based on the alleged failure of the government to provide Brady discovery. The Supreme Court held in Brady v. Maryland that the government had a duty to provide the defense with all exonerating evidence. By exonerating evidence the Supreme Court meant evidence that is “favorable to the accused and material to guilt or punishment.” Specifically it requires the provision of evidence that is either exculpatory or impeaching in nature.

Joseph Prochilo is charged with possession of a firearm by a convicted felon and Elvis Guerrero is charged with attempting to buy cocaine for purpose of sale in separate cases. The cases against both men rely primarily upon cooperating witnesses. In each case the government provided initial Brady discovery relating to the cooperating witnesses. Defense counsel in both cases moved for further discovery.

Prochilo requested:

(1) details regarding the witness’s work with the United States Secret Service, the Essex County Sheriff’s Department, the DEA, and the FBI; (2) information regarding the other ATF cases on which the cooperator worked; (3) the witness’s cooperation agreements with government agencies other than the ATF; (4) a description of other firearms seized by the government as a result of the witness’s cooperation; (5) information about the cooperator’s contacts with other government agencies as they related to other matters or other investigations; and (6) a list of all benefits the witness received as a result of these contacts.

Guerrero requested:

to produce all information in its possession, custody, or control, regarding the witness, and identifying several categories of information.

Prochilo said that the requested information might reveal that the cooperating witness is “flawed”, that the discovery could help substantiate an entrapment defense, that many of the cases that the cooperating witness handled were thrown out requiring an explanation, and because only his counsel, not the government or the district court, will be able to judge what evidence is both favorable to him and material.

Guerrero claims that the discovery is needed for impeachment purposes.

The First Circuit reversed the District Court decisions in both cases. It held that for the defendants to obtain a court order for Brady material beyond what the government provides the defense must make specific requests for specific items and give specific reasons why the discovery is necessary. “[T]he defendant should be able to articulate with some specificity what evidence he hopes to find in the requested materials, why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”

The problem with this is that you are asking defense counsel to request specific items from the prosecution’s file. If the defense knew what was in the file the defense would not need to ask for discovery. It is the basic requirement of due process and fairness that originally led the Supreme Court to require discovery of exculpatory evidence that is violated when you require the defendant to list specific items out of the government’s file so that he/she can use the items to impeach the cooperating witness.

President Obama accepted the resignation yesterday of Federal District Court Judge who is serving a prison sentence for obstruction of justice after he was charged with sexual harassment of two member of his staff. The sexual harassment charges were dismissed in exchange for his plea to the obstruction of justice charge.

He initially said he would resign immediately after the conviction but then changed his mind and dated the resignation for June 1, 2010. Since Federal judges can only be removed from office by resignation or impeachment, this would have allowed him to collect his $174,000 annual salary for another year. President Obama did not accept the resignation dated June 2010 but he accepted the immediate resignation which came at the same time that Kent received notice that he was going to be tried before the Senate.

In response to his delayed resignation, The House of Representatives impeached him on four count–two of harassing his staff and one each of lying to judicial investigators and to the Justice Department. He is currently awaiting trial on the impeachment charges in the Senate.

A Congressional committee recommended Wednesday the impeachment of U. S. District Judge Samuel Kent who was convicted of obstruction of justice for lying to a judicial investigating committee and the FBI which were investigating sexual abuse complaints against him by his secretary and case manager.

According to testimony by staff members he would grope them, often while drunk. As part of a plea bargain he was sentenced to 33 months on the obstruction of justice charge and the sex related charges were dismissed. At his sentencing a statement by his case manager was read in which she said,

“After forcing himself upon me and asking me to do unspeakable things, he told me that pleasuring him was something I owed him. That was it for me.”

Kent has turned in a resignation effective June 2010, Thus unless he is impeached he will continue to get his full salary for the next year while he is in prison. The House Judiciary Committee voted unanimously to impeach him. Assuming that the House votes for impeachment and the Senate convicts him his salary will be terminated immediately.