If the title of this post looks familiar, it may remind you of the previous one: “RI: Prosecutor’s Deliberate Hiding of Impeachment Evidence Requires New Trial in High-Profile Murder Case.” Again, prosecutorial misconduct is in the headlines, prompting reasonable courts to hold the State accountable for complying with the constitutional due process rule articulated in Brady. This time, it is the Second Circuit Court of Appeals handing down the relevant decision. On July 15th, the court granted Jose Alex Fuentes a new trial, finding that the New York state courts had unreasonably applied clearly established federal law. Like the Rhode Island case covered in the Open File’s previous post, the court made its decision in the face of a strong dissent. Here, that dissent characterizes the majority opinion as one in which the court held that “a young woman’s struggle with minor depressive disorder is so obviously damaging to her credibility in the prosecution of her alleged rapist that there is no room for fairminded disagreement.” Despite the stakes in this rape case—or perhaps in light of them—the majority concluded that “[t]he State’s suppression of [a key] psychiatric record . . . undermines confidence in the outcome of Fuentes’s trial.”
The State’s case relied heavily on the complaining witness’s testimony about what happened on the night of the alleged crime. She—referred to in the opinion by her initials G.C.—testified that after a night out with her friends, Mr. Fuentes followed her to her apartment building from the subway, eventually got onto the elevator with her, pulled a knife, and proceeded to rape her. Fuentes, on the other hand, testified in his own defense, and stated that he had met G.C. out at the bar and after spending some time with her there suggested they go home together. According to him, she invited him to her apartment building and they had consensual sex on the building’s rooftop. At the end of the night, Mr. Fuentes claimed that G.C. became upset when he did not ask for her phone number and suggested they leave things as a one-night stand. At bottom, there was no medical evidence that suggested force was used against G.C., the defendant admitted that intercourse occurred, and the only dispute was about consent.
During closing arguments, Mr. Fuentes’s lawyer was flipping through medical records the State had introduced during trial and spotted an unfamiliar record indicating that G.C. had a psychiatric consultation after reporting she had been raped. The prosecutor admitted she had intentionally withheld the record during discovery, citing psychiatrist-patient privilege. The defense lawyer argued that the record would have enabled him to cross-examine G.C. and call into question her credibility. The trial court ultimately denied the defense’s request for a mistrial, finding that the record was not exculpatory.
G.C.’s psychiatric consultation record indicated that she reported she had been depressed for two years and had suicidal thoughts during that time. She also stated that she had frequent crying spells. The record suggested G.C. may have “dysthymic disorder”—a condition defined primarily by a chronically depressed mood.
Unlike many Brady cases, this one does not involve a dispute about whether the State actually suppressed the evidence in question. The prosecutor admitted that she did from the get-go. And, while in some cases the State might prevail on a technicality—like the claim that the defense actually got access to the impeachment evidence during trial because the lawyer came across it during his closing argument—the New York appellate court instead decided straight-up that the improperly concealed evidence did not warrant a new trial because it was not “material.” (Interestingly, New York state law provides a different, slightly lower, standard for materiality in situations in which the exculpatory documents were specifically requested. Even using a standard easier for the defendant to meet, the state court found Fuentes did not do so here.)
Although the lower court had questioned whether the consultation record was exculpatory, the Second Circuit said that the record’s potential corroboration of G.C.’s testimony that she walked home alone from the subway did not negate its status as Brady. Impeachment material, no matter its potentially inculpatory value to the State, must be disclosed nonetheless. (In the Tempest case out of Rhode Island, the state supreme court held the same—that impeachment evidence is covered by Brady even where it may contain potentially inculpatory aspects.) Conducting a “careful, balanced examination of the nature and strength of the evidence presented, as well as an evaluation of the potential impact of the evidence on the witness’s credibility,” the Second Circuit found:
- The state appellate court had misunderstood the consultation record, failing to realize that G.C. had reported having suicidal thoughts for two years—not just since the time of the alleged crime.
- The state appellate court also overstated the strength of the State’s case—which was far from overwhelming.
- These dual mistakes amplified the error in the analysis—undervaluing the impeachment evidence’s potential value to the defense and overvaluing the State’s evidence and its likelihood it would seal a conviction.
- The record would have helped Mr. Fuentes bolster his claim that G.C. was unstable and erratic, particularly when he stated that he did not want her contact information.
Reading the Second Circuit’s opinion, one sees that the court took seriously its obligation to review the case as a whole. Unlike the lower courts, it conducted a true test of the State’s case, pointed out inconsistencies in the testimony of prosecution witnesses, and assessed the plausibility of the complaining witness’s testimony. It also tried to comprehend why the jury deliberated for two days and asked the court to read-back testimony of certain witnesses during its deliberations. The lower courts failed to recognize that this was a close case. And, it close cases, the defendant can meet Brady’s materiality standard. The court summarized its findings:
At bottom, the trial record presented two diametrically opposing versions of what happened, and the jury had to decide whether G.C.’s version of the events, despite Fuentes’s version, should be believed beyond a reasonable doubt. G.C.’s testimony was the only evidence that what occurred on the rooftop was a rape rather than a sexual encounter in which she was a willing participant; Fuentes’s version was that the encounter was consensual and that G.C. thereafter became angry and vindictive when it became clear that he did not want to see her again. If the jury had been aware of the psychiatric record revealing that G.C. suffered from a chronic disorder characterized by low self-esteem, feelings of inadequacy, and excessive anger—and if counsel had been able to develop his line of defense further by obtaining in time for trial a psychiatric opinion that was obtainable only after the belated discovery of the withheld Record of Consultation—the jury could well have given greater credence to Fuentes’s version of events.
The dissenting opinion, written by Judge Wesley, disagreed with the majority in light of his view of the strict limits that the Anti-Terrorism and Effective Death Penalty Act and the Supreme Court’s interpretation of it put on the federal courts. Nevertheless, he agreed that the trial prosecutor was out of line: “It is certainly inexcusable for a prosecutor to represent that everything has been produced when it has not . . . .” Finding that this conduct “could certainly form the basis of professional discipline for ethical violations,” Judge Wesley “directed the Clerk of the Court to forward copies of the [opinions] . . . to the Grievance Committee . . . in order that they may consider whether the prosecutor in this case breached her ethical obligations in a manner warranting professional discipline.” Even though he disagreed with the majority’s legal analysis and its conclusions, he took the unusual and laudable step of referring a misbehaving prosecutor to the disciplinary association. While it was the majority that provided justice to the defendant in this case, it was the dissent who offered the hope of justice to future litigants by prompting a disciplinary process that may punish the prosecutor for wrongdoing (though it seems unlikely such disciple will follow).