Judge Takes Prosecutor To Task For Failure to Disclose Evidence
A Bronx judge has held that a Bronx prosecutor acted unethically in hiding from defense lawyers that a witness had materially changed his story. You can read the decision here
In People v. Waters, The prosecutor, Assistant District Attorney Jason Petri, claimed his decision not to disclose that a witness to a murder had changed his story "was motivated by an intent to secure defendant's conviction".
But Supreme Court Justice Edgar Walker disagreed. Characterizing Mr. Petri's behavior as "an attempt to mislead the defendant," amounting to "an affirmative act of deceit," the Bronx jurist ruled the prosecutor should have disclosed the new information to defense counsel when he learned about it, three weeks before the trial was scheduled to begin.
Most people believe that all the lawyers involved in a trial – both the prosecutor and the defense lawyer - know all the evidence in advance. In a criminal trial, this couldn't be further from the truth. The government, whose job it is to prove the defendant's guilt (not the other way around – an accused person never has to prove his innocence!), has investigative powers far that far surpass that of the average criminal defendant.
Because the prosecutor has access to so much more information than the accused, he has a constitutional obligation to tell a defendant's lawyer if he learns of any evidence that is favorable to the accused, far enough before the trial is scheduled to begin, so that the lawyer can properly prepare.
By intentionally withholding evidence that a key prosecution witness had materially changed his story, Justice Walker concluded that not only had ADA Petri violated the defendant's constitutional rights, but that his "trial by ambush" tactics had also broken New York's rules of professional conduct concerning proper conduct of a prosecutor. Specifically, Rule 3.8(b) states:
A prosecutor . . . in criminal litigation shall make timely disclosure to counsel for the defendant . . . of the existence of evidence or information known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.
This case highlights one of the many reasons to hire an experienced criminal defense attorney at the earliest possible moment. Can a prosecutor bury important evidence that could help the defense, and get away with it? Of course, he can. However, bringing in a defense attorney who knows the legal and ethical rules a prosecutor must follow concerning pre-trial disclosure of evidence will help ensure that all evidence that should be disclosed gets turned over to the defense as soon as possible.