When the State doesn't comply with the discovery code.
The Due Process Clause of the Fourteenth Amendment of the United States Constitution requires that criminal prosecutions conform with prevailing notions of fundamental fairness and that criminal defendants be given a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479 (1984). The Oklahoma Court of Criminal Appeals has referred to due process as “one of the most sacred rights” of a citizen, assigning the court with the responsibility to see an accused’s constitutional rights are not violated. Wallace v. Oklahoma, 1995 OK CR 19, 893 P.2d 504, 518 (1995).
A defendant in a criminal case has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S. at 87. “A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of the proceeding that does not comport with the standards of justice.” Id. at 87-88 (internal citations omitted). Even absent a specific request, a prosecutor has a constitutional duty to turn over exculpatory evidence. United States v. Agurs, 427 U.S. 97 (1976) reversed on other grounds by United States v. Bagley, 473 U.S. 667, 682 (1985).
There are two instances in which the failure of the State to provide evidence can result in a violation of the defendant’s due process rights. The first instance concerns the purposeful withholding of exculpatory evidence by the State. This instance applies only to evidence that is exculpatory in nature and which the State either fails to produce or fails to preserve. This was the issue presented in Brady v. Marlyand and expounded upon by the Trombetta court. The second instance concerns the failure to preserve evidence that might be useful to the accused. This was the issue presented in Arizona v. Youngblood, 488 U.S. 51. The present case is the former and requires a sanction upon the State.
Whether or not the body cam footage still exists is immaterial to the Court’s analysis of this issue. The body camera footage is obviously material to the defendant’s current procedural posture: the footage has a reasonable probability, sufficient to undermine the current coarse the case is set upon, of completely changing the trajectory of this matter. See U.S. v. Bagley, 473 U.S. 667, 682 (1985). If body cam footage currently exists, in which the defendant has clearly not given consent to the authorities to search his home, and the State is refusing to produce the evidence, there is a clear violation of the defendant’s right to due process and this case should be dismissed. If the footage existed in the past, which it clearly did as it is referenced in Officer’s report, and it was purposefully destroyed or was destroyed outside of the Tulsa Police Departments normal practice or against its procedures, there is still a due process violation and this case should be dismissed. Either way, this Court should reach the same inevitable result. It is only the analysis which differs.
I. THE STATE, THROUGH THE TULSA POLICE DEPARTMENT, HAS SUPPRESSED MATERIAL EVIDENCE THAT HAS BEEN REQUESTED BY THE DEFENDANT.
“Society wins not only when the guilty are convicted but when criminal trials are fair, our system of the administration of justice suffers when any accused is treated unfairly.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Fairness, due process, requires that the rules be known and that they be followed. Presently, the defendant has sought the video made of him by Tulsa Police officers on January 13, 2019. Tulsa Police and the State of Oklahoma have refused to turn over the video. “[I]t is rarely justifiable for the prosecution to have exclusive access to the storehouse of relevant fact.” Dennis v. U.S., 384 U.S. 855, 873 (1966). Thus, the Oklahoma Legislature, sought to open the “storehouse” to both parties in a criminal case with the criminal discovery code. Okla. Stat. Tit. 22 § 2002 provides, in relevant part:
“1. Upon request of the defense, the state shall be required to disclose the following:
c. any written or recorded statements and the substance of any oral statements made by the accused…
3. The prosecuting attorney’s obligations under this standard extend to:
b. any information in the possession of law enforcement agencies that regularly report to the prosecutor of which the prosecutor should reasonably know, and
c. any information in the possession of law enforcement agencies who have reported to the prosecutor with reference to the particular case of which the prosecutor should reasonably know.” 22 O.S. §§ 2002(1)(c), 2002(3)(b), 2002(3)(c).
The State is well aware of the material sought by the Defense as: (1) it was referenced in Officer’s report ; (2) it was requested by the Defense; and (3) it was referenced in the Court’s minutes. Further, the State is well aware of the rules regarding the disclosure of evidence requested by a defendant.
Suppression of favorable evidence by the State is an impermissible violation of the defendant’s due process rights. See Brady at 87. The Defense is entitled to present a complete defense, a component of which is the legal argument surrounding his refusal to consent to the search of room 115. See California v. Trombetta, 467 U.S. 479, 485 (1984) (internal citations omitted). A key component of many defenses is that the police investigation was ineffective, evidence that tends to draw into question the investigation is material under Brady. Bowen v. Maynard, 799 F.2d 593, 612-13 (10th Cir. 1986). “The withheld evidence [a list of other suspects] also raises serious questions about the manner, quality, and thoroughness of the investigation that led to Bowens arrest and trial. A common trial tactic of defense lawyers is to discredit the caliber of the investigation…and we may consider such use in assessing a possible Brady violation.” Id. at 613.
The present matter had been set for disposition pending the State’s release of the requested body camera footage. While it may be tempting to infer that no further evidence was required for the defendant to have made his decision to waive his right to jury trial and set the matter for plea, the Tenth Circuit Court of Appeals has held that Brady applies to guilty pleas as well. See United States v. Wright, 43 F.3d 491 (10th Cir. 1994). In Wright, the Court highlighted that “pleading guilty does not preclude a defendant from claiming that his plea was the product of prosecutorial ‘threats, misrepresentations, or improper promises. Such claims directly challenge the voluntary and intelligent nature of the plea.” Wright at 495. While here, it is a near plea, the same principle of justice applies, especially as concerns the intelligence of entering the plea. The State has withheld material evidence that could be dispositive of the matter via dismissal rather than plea.
In Baker v. State, the Oklahoma Court of Criminal Appeals reversed the conviction of the defendant. Baker v. State, 2010 OK CR 19, 238 P.3d 10 (2010). The State had, in Baker, suppressed and failed to disclose impeachment evidence related to the complaining witness. Id. at ¶5. The Court reasoned that “[e]vidence of a witness’s bias, credibility and motivation for testifying is always relevant.” Id. Presently, the video in question would (likely) directly contradict the report filed by Officer. The footage sought by the defendant would directly demonstrate that Officer is not a credible witness. However, the State has allowed the defendant’s discovery request to languish for approximately six months, which is a clear indication that the State is not treating the discovery dispute with the seriousness that it warrants.
II. ALTERNATIVELY, THE STATE HAS FAILED TO PROPERLY PRESERVE APPARENT MATERIAL EVIDENCE IN VIOLATION OF THE DEFENDANT’S DUE PROCESS RIGHTS.
The State has a duty to preserve evidence that might be expected to play a significant role in the suspect’s defense. Trombetta at 488. The prosecution is required to preserve and produce evidence that possesses “an exculpatory value that [is] apparent before the evidence [is] destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. The value of the body camera footage was apparent from the moment Officer started recording. It became the only objective evidence of whether or not there was a consent to search given to police by the defendant. Additionally, the video recording is the only evidence of its type to exist, without it the Court and the defendant are left with a he-said-he-said situation.
In U.S. v. Zaragoza-Moreira, the Ninth Circuit Court of Appeals held that the exculpatory value of video footage of defendant was readily apparent to the government. U.S. v. Zaragoza-Moreira, 780 F.3d 971, 978 (9th Cir. 2015). The Court noted that the defendant repeatedly “alerted” the government of her duress claim. Id. at 979. The government went on to argue that even if the evidence was apparently exculpatory, the destruction was due to an “oversight.” Id. at 980. The Court rejected this proposition finding that it was not oversight, nor was it pursuant to the government’s procedures. Id. The Court even rejected that plea negotiations excused the prosecutor from attempting to preserve the video. Id. at 981. Lastly, the Ninth Circuit noted that there was no comparable evidence that the defendant could produce and that the suggestion that defendant testify in lieu of the video ran “afoul” of the Fifth Amendment. Id.
III. ALTERNATIVELY, THE STATE HAS ACTED IN BAD FAITH IN ALLOWING THE DESTRUCTION OR FAILURE TO PRESERVE MATERIAL EVIDENCE IN THE CASE AT BAR.
If the Court finds that the evidence sought is not in existence anymore and that the footage is only potentially material exculpatory evidence, then the defendant is forced to demonstrate bad faith. See U.S. v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The Youngblood test requires two things: (1) destruction of or failure to preserve evidence that is potentially useful to the defense (2) in bad faith. Arizona v. Youngblood at 58. If this Court decides that bad faith on behalf of the State is a necessary element, the defendant would illustrate for the Court that 1) bad faith can be inferred from the States actions, either in purposeful destruction of the body cam footage or destroying the body cam footage outside of the normal practice or against the procedures of the Tulsa Police Department and 2) that the State, Tulsa Police in particular, knew the exculpatory value of the footage at the time it was destroyed or not preserved. Bohl at 911, citing Youngblood at 57.
The Tulsa Police Department publishes, for benefit of its officers and the public its policies and procedures. The Tulsa Police Department has specific rules and regulations regarding the use of video recording equipment and the procedure for the recordings use and storage. The Department requires all those equipped with mobile video recorder system (MVRS), which includes body worn cameras (BWC), to record all enforcement actions. Officer, as stated previously, was equipped with a BWC. See Exhibit 1. Officer was engaged in an “enforcement action,” which includes consents to search, on the night of January 13, 2019. The Department procedures further require:
“1. At the beginning of each shift, Tulsa Police personnel will test their assigned MVRS to assure functionality.
8. All officers are responsible for the uploading of [audio/video] A/V recordings. All audio and video files must be uploaded prior to the end of an officer’s assigned shift.
10. Officers will indicate in official police reports…whether or not an A/V recording was captured and may provide evidence.
12. …A/V recordings will be retained for a minimum of 26 months from the date of the recorded incident…”
Officer is aware of the procedures that the Department employees to ensure that recordings are maintained and properly reported. In fact, officers and supervisors are to review reports for accuracy prior to finalization. All police officers understand the importance of accuracy within their reporting methodology; Officer stated twice in his report that body camera footage existed to support his contention that a consent to search had been obtained. Lastly, the Department requires that each officer ensure that the recordings are uploaded prior to the end of his or her shift. Failure to follow the rules and regulations regarding recordings can result in sanctions, as it should in the case at bar.
The significance of Officer's recording was apparent enough for Officer to mention it twice in his report – it was known to him that the question of whether consent was obtained was crucial to the Department’s case. The State had, also, been put on notice by the defendant, through counsel, not later than the defendant’s preliminary hearing setting that the recording was requested for use in the defendant’s defense. Beyond the request, the State was on notice as to the video’s importance due to the necessity for a consent to search and, therefore, secure their evidence. Furthermore, while the defendant contends that the video is still in State possession, the discovery production from the State thus far indicates that the Department had possession of the video at the time the defendant gave notice of his need for the video. Bohl at 912. What’s more, the evidence obtained through the defendant’s alleged consent to search is central to the State’s case. Id. Lastly, the State has no innocent explanation for the destruction or failure to preserve the video. Id. As with many cases, the Court in Bohl, noted that following a “standard procedure” was likely not bad faith. Id. Conversely, failure to follow clear policies and procedures of the Department is at a minimum a prima facie case of bad faith.
IV. THE STATE SHOULD BE SANCTIONED FOR ITS DUE PROCESS AND DISCOVERY VIOLATIONS.
Oklahoma statutes specifically leave sanctions to the sound discretion of the trial court. 22 O.S. § 2002(E)(2). A trial court can restrict or suppress the evidence or dismiss the case. Id. The Oklahoma Court of Criminal Appeals has found dismissal of the charge(s) an appropriate remedy for discovery or Brady violations. State v. Lefebvre, 1994 OK CR 38, 875 P.2d 431, 433 (1994). “[T]he disposition of evidence that is central to the case may permanently deprive the defendant of due process. Accordingly, after concluding that there has been a violatioin of Youngblood, the decision to either suppress the government’s secondary evidence describing the destroyed material or to dismiss the indictment turns on the prejudice that resulted to the defendant at trial.” Bohl at 914.
Disclaimer: Reading this blog post does not create an attorney-client relationship, and it is not formal legal advice. This is for information purposes only. It is always best to speak with an attorney about your questions, concerns, legal issues and needs.