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In a recent drug conspiracy case out of Tennessee, the U.S. government tried to downplay its failure to disclose favorable evidence by pinning the suppression of exculpatory statements on the defendant. The U.S. Attorney’s Office for the Eastern District of Tennessee claimed that Mr. Abel Tavera’s attorney failed to perform due diligence by declining to interview his client’s co-defendant, and asked the 6th Circuit U.S. Court of Appeals to uphold Mr. Tavera’s 15 year sentence for conspiracy and intent to distribute methamphetamine. The 6th Circuit, however, laid the blame squarely at the government’s feet.

Tavera’s case involves a government bust of a methamphetamine deal which was supposed to occur in a McDonald’s parking lot in Morristown, Tennessee. Four defendants were arrested in the bust, including Tavera – a roofer who was travelling in the truck that carried the drugs.

At issue is whether Tavera knew about the drugs and was involved in the deal, or whether he really believed he was going with his co-defendant, Placedo Mendoza, to view a construction project.

Unlike his co-defendants, Tavera would not agree to a plea and maintained his innocence at trial; he had no methamphetamine residue on his hands or cell phone; and he did not communicate with the men who were supposed to collect the drugs.

During two interviews with Assistant U.S. Attorney Donald Taylor, Mendoza told Taylor – who went on to prosecute Tavera – that Tavera did not know about the drugs in the truck and believed that the purpose of the trip was to see about a roofing job. These statements were never disclosed to Tavera or his defense attorney.

The government defended its failure to turn over Mendoza’s statements on appeal by leaning on the due diligence rule, arguing that Tavera or his lawyer should have interviewed Mendoza to see if he had spoken to Taylor prior to Tavera’s trial.

However, the 6th Circuit criticizes the due diligence rule because it places the burden of discovering exculpatory evidence on the defendant; a criticism that is taken up by Kate Weisburd in her article, “Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule”:

The Brady doctrine is premised on the dual goals of truth seeking and fair trials. It furthers these goals by requiring that prosecutors provide broad, timely, and absolute disclosure of all material exculpatory evidence. In contrast, the defendant due diligence rule suppresses exculpatory evidence by shifting the burden of discovery to the defendant and suggesting that the government’s disclosure duty is not absolute. This diminution in the prosecutor’s absolute burden, in turn, perversely incentivizes the prosecutor to err on the side of delayed disclosure at best, and complete suppression at worst…
It is internally inconsistent to demand that the prosecution learn of and disclose exculpatory evidence regardless of any request by a defendant and simultaneously to place a burden on defendants to exercise due diligence in learning of and obtaining the evidence on their own. 

In its opinion, the 6th Circuit relied on Banks v. Dretke, 540 U.S. 668 (2004) to refute the application of due diligence in Tavera’s case, stating that “the clear holding in Banks should have ended that practice”:

Even with a broad diligence rule, it seems highly unlikely in this case that an adverse co-defendant like Mendoza, if interviewed, would have disclosed to Tavera that he had at first told the prosecutor that Tavera was innocent but changed his story during his plea negotiations. Mendoza’s lawyer would have told him that he would be admitting to a federal crime by admitting that he had lied to government agents either before or after the plea agreement.

Writing for the majority, Senior Judge Gilbert Merritt found Mendoza’s statements to be both exculpatory and material, and ordered a new trial for Mr. Tavera. Judge Merritt also reprimanded Assistant U.S. Attorney Donald Taylor for withholding the evidence and recommended that Taylor’s office conduct an investigation into the reasons for his conduct to make sure that such errors do not happen again.

Judge Eric Clay dissented from the majority opinion, disagreeing that the due diligence rule did not apply because the government never made a representation to the defendant that everything in its files had been disclosed. The government has since requested that all 16 members of the Court review the decision, which is still pending.

Read the Court’s opinion here.


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