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The Queens District Attorney denies that his office has done anything wrong by instituting a practice of keeping records from its Witness Protection Program separate from trial attorneys’ case files, even when witnesses who have been supported by the program testify at trial. The DA’s office noted in a recent appeal that “as a matter of custom”, witness security program records—which could include things like financial expenses for witnesses—were not included in a trial assistant’s litigation file. Yet it denies that this is problematic for its prosecutors’ constitutional obligation to turn over evidence of money paid to witnesses who will testify at trial.

The New York Law Journal reports that the DA’s office defended the record-keeping practices by stating, “[T]here is no constitutional requirement that the District Attorney’s office maintain their files in a particular manner,” in court papers relating to the case of People v. Bedi, Queens County Supreme Court, No. 4107/96.

Whether the intent of separating the files is so that trial attorneys can plausibly deny knowledge that a witness had received benefits from the DA’s office or not, the outcome surely leads to violations of the state’s duty to disclose evidence under Brady v. Maryland (1963). From the New York Times:

The unwritten policy, described internally as a Chinese wall, tells members of the district attorney’s office not to share certain information about witnesses and defendants with each other in some circumstances. Though such policies can be used to prevent conflicts of interest, in the murder case it effectively blocked the release of material information that legally must be disclosed to the defense, the judge found.

The practice was uncovered by attorney Joel Rudin, who filed a Freedom of Information request only to discover that a witness who testified against his client had received $20,000 in benefits from the Queens DA’s office and subsequently denied receiving any such benefits on the stand. In a ruling delivered last week, Justice James P. Griffin of the State Supreme Court in Queens wrote that this violated Brady because:

If the jury had been presented with this apparent conflict in [the witness’] testimony, a juror could have reasonably drawn any number of inferences including, but not limited to, that the witness was attempting to cover up those payments because he believed they were given to him simply to induce him to testify. That could well affect the jurors’ impression not only of the testimony of [this witness] but the jurors’ view of all the other prosecution witnesses as well.

Furthermore, the judge refuted the notion that the trial attorney not knowing that the witness had received benefits from the Witness Protection Program absolved the state of its duty to disclose the information:

The trial assistant need not be personally aware of the falsity of her witness’s testimony,” he wrote. “If any member of the prosecutor’s office, as in the instant case, is aware of information indicating the witness’s testimony is false, the information is imputed to the trial assistant along with a duty to correct that testimony. This is a duty shared by the prosecutor’s office as a whole.

The misconduct of the Queens DA’s office in this case was not limited to Brady violations. Prosecutors also violated their obligation to correct false testimony under Napue v. Illinois (1959) since the witness said on the stand that he hadn’t received anything from the DA’s office; they overlooked the Supreme Court’s holding in Giglio v. United States (1972) that Brady obligations extend to all prosecutors in the office (including, in this case, those who were aware that the witness had received $20K in reimbursements); and finally, they ignored the Supreme Court in Banks v. Dretke (2004) when it clearly placed the onus on prosecutors to disclose Brady material – since the state argued that it was the defense attorney’s fault for failing to properly counter the witness’ claim on the stand that he, not the DA’s office, had paid for his expenses.

These cases are not news to the Queens DA’s office. Some of this caselaw is more than 50 years old. Yet, according to the Joel Rudin, this practice has gone on for “the last 20 years by current Queens District Attorney Richard Brown.”

The actions of the Queens DA’s office in the instant case calls into question the validity of witness testimony in all criminal cases during this period since there are likely undisclosed files from the Witness Protection Program that were never turned over to trial attorneys in a number of cases, not to mention the office’s obvious lack of understanding about its own obligations under the Constitution. The Open File will be watching for similar cases out of this office in the future.

Read Judge Griffin’s opinion here.


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