Saturday, January 16, 2021

Case o' The Week: Backward-looking Brady Blues - Bruce II and Brady Obligations

 “Prosecutors cannot turn a blind eye to their discovery obligations.” 

United States v. Bruce II, 2018 WL 2021 WL 98242 (9th Cir. Jan. 12, 2021), decision available here.

Players: Decision by Judge Christen, joined by Judge Hawkins and visiting DJ Gritzner.

Facts: Suspects visiting Atwater prison were interrogated, and agreed to cooperate against “Officer Johnson” in an alleged drug-smuggling scheme. Id. at *2.

The cooperators described the officer’s build and noted he wore a Steelers hat – when shown a Facebook photo of defendant (and prison guard) Bruce in a Steelers hat, a cooperator identified Bruce immediately. Id.

The cooperators went to Atwater in an arranged meet: Bruce circled the lot and was then arrested. Id.

Before Bruce’s trial, the government filed an ex parte motion for in camera review of materials relating to prison guard and supervisor Paul Hayes. Id. Hayes was the subject of dozens of inmate complaints, was under active investigation for drug smuggling in another prison, and had been at the stop and arrest of Bruce. Id. The court granted the government’s motion not to disclose this information to the defense. Bruce was convicted at trial. Id. at *3. 

Shortly after Bruce’s verdict, the government indicted Hayes – but the district court denied Bruce’s motion for a new trial alleging a Brady violation

Issue(s): “Bruce argues he is entitled to a new trial because the government violated the discovery obligations imposed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In particular, Bruce argues the government violated his right to due process because it failed to disclose evidence of another prison guard’s alleged malfeasance.” Id. at *1.

Held:We agree with Bruce that at least some of the withheld evidence was exculpatory, but conclude it was not material within the meaning of Brady. The district court did not err by denying Bruce's motion for a new trial.” Id.

Of Note: The first issue in Bruce II is a challenge to the suggestive identification. Id. at *4. Sadly, the Ninth rejects a strong defense challenge to the use of a Facebook photo – of Bruce wearing a Steelers hat – as the picture that was shown to the cooperators. Id. at *5.

It is a disappointing analysis, but one that merits reading (and distinguishing) if raising a suggestive ID challenge.  

How to Use: Although the defense Brady challenge ultimately fails on prejudice, the opinion does have a very helpful discussion of what is “exculpatory.” Id. at *8. Judge Christen rejects the government’s attempts to conflate the “materiality” and “exculpatory” analyses, and chastises the government for failing to “acknowledge its broader ethical responsibility” to search out information relating to Hayes. Id. Even if the government did not intend to call Hayes as a witness, it still “bore the burden of investigating whether potentially exculpatory evidence existed.” Id.

While this opinion begins with a suggestive-ID loss and ends with a prejudice whimper, mine its middle for useful gems on Brady obligations.                              

For Further Reading: In October of 2020 the Due Process Protection Act (“DPPA”) created advisement requirements to remind the government of its Brady obligations. See article here

Would a DPPA advisement have prevented the deeply troubling Brady violations that were chastised in Bruce II? Nope. A pretrial Brady order with more teeth than the DPPA is needed – and one that promises to enforce California Rule of Professional Conduct 3.8 if there are violations. See Rule 3.8 here

An admirable model Brady order has long been in use in D.C. – something to emulate out here in the West. See D.C. Standing Order here



“Turning a blind eye” illustration, of Lord Nelson, from



Steven Kalar, Federal Public Defender N.D. Cal. Web site available at



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