Saturday, March 12, 2011

Case o' The Week: A Brady Bombshell -- Kohring and Discovery Nondisclosure

Could there possibly be anything better than a righteous and persuasive Brady / Giglio discovery decision penned by the Honorable Judge Sidney Thomas (right)?

Only an indignant and persuasive discovery dissent, penned by the Honorable Betty Fletcher (below left). United States v. Kohring,__ F.3d __, Slip. Op. at 3433 (9th Cir. Mar. 11, 2011), decision available here.

Players: Big win for D. Wa. AFPD Michael Filipovic. Decision by Judge Sidney Thomas, joined by Judge Tashima, concurrence and dissent by Judge Betty Fletcher.

Facts: Kohring, an Alaskan state legislator, had a series of private taped meetings with oil company executives where money was discussed or exchanged. Slip Op. at 3439. He was charged with several public corruption offenses in federal court. Id. The government’s lead witness was an oil executive named Allen. Id. Some of Allen’s transactions with Kohring culminated during a period of key oil legislation. Kohring was convicted of most of the counts. Id. at 3442.

While the appeal was pending, it was disclosed that Allen was also a witness in the infamous Senator Stevens’ case – and damning information about Allen had not been disclosed in either of the cases. Id. at 3442. Kohring’s case was remanded by the Ninth for a hearing on this evidence: the district court held that while the thousands of pages of nondisclosed evidence was favorable to the defense, Kohring hadn’t been prejudiced by its non-disclosure. Id. at 3444.

Issue(s): “The district court determined the prosecution had failed to disclose favorable evidence to Kohring, but it concluded the government did not violate Brady/Giglio because the newly-disclosed information is not material.” Id. at 3439.

Held: “We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring’s conviction and remand to the district court for a new trial.” Id.

Of Note: Kohring joins United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010) as a discovery must-read for the defense. It is also a fascinating tale: Allen, the government’s snitch, had allegedly sexually abused minors, then tried to obstruct their testimony, was on meds that made his memory of the events fuzzy, had said to the feds that there was no quid pro quo for the payments to Kohring, varied wildly as to the amounts of payments that had been made, and voluntarily ate a grand’s worth of his FBI handler’s golf fees (which was never reimbursed) – and all of this info was not disclosed before trial!?!

How to Use: There’s too much of value in Kohring to fully report here: highlights follow. Judge Thomas explains how FRE 403 does not defeat the Brady / Giglio claim, in a rare appellate rebuke analyzing that broadly-discretionary rule. Id. at 3449. He explains that impeachment evidence isn’t “cumulative” if it shows different motives to lie, and if it reveals the magnitude of the snitch’s motives. Id. at 3450.

Of greatest importance, he rejects an AUSA's “work product” protection as insulation for
Brady / Giglio facts within the work product: those facts must nonetheless be disclosed. Id. at 3456. That language alone is worth a quick discovery letter to your favorite AUSA, demanding a review of e-mails for all Brady / Giglio facts.

The only dark cloud is Judge Thomas’s refusal to dismiss the indictment, for government conduct that was at least “reckless” (and, we suspect, outrageous). Judge Betty Fletcher correctly takes him to task in her dissent, god bless her, and earns an apologetic rejoinder in the majority’s final footnote from her admiring colleagues. Id. at 3455 & n.5

For Further Reading:The prescient Judge Trott warned ‘em way back in ‘96 - time to revisit his classic article. See Hon. Stephen Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381 (1996).

Image of the Honorable Sidney Thomas from .

Image of the Honorable Judge Betty Fletcher from .

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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