Sunday, November 22, 2009

Benefits & Brady

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that
In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that
Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

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