The Brady Bunch Of Non-Harmless Errors

The Kansas Court of Appeals has reversed a rape conviction due to a Brady violation and closing argument expressions of personal opinion

As already discussed, following the second day of evidence at Newson’s jury trial, Major Nicholson of the BSPD gave defense counsel 220 photographs and over five hours of video footage from the hotel, from the 7-Eleven, and from BSPD officers’ Axon body cameras. Put plainly, it takes substantial time to skim this amount of material, let alone thoroughly review this material to effectively and zealously represent a criminal defendant on trial for rape, aggravated criminal sodomy, and aggravated sexual battery. On the third day of evidence at Newson’s jury trial, defense counsel tried to explain her dilemma. She told the district court that she was only able to start reviewing the new discovery at 9:50 p.m. the previous evening.

Defense counsel should have never been placed in this position. The Sixth Amendment to the United States Constitution guaranteed Newson the right to effective assistance of counsel. Through no fault of defense counsel, the district court limited defense counsel’s ability to effectively represent Newson in violation of his right to effective representation. No reasonable person could expect defense counsel to be adequately prepared to defend Newson after being given so much discovery, some of which was clearly exculpatory, late at night the evening before presenting Newson’s defense.

For this same reason, the State’s contention that the evidence from the delayed disclosure was not Brady material because Newson was able to effectively use the evidence at this trial is a crowning non sequitur (it does not follow). If we were to take the State’s contention seriously, the State could simply delay in turning over Brady material to a defendant until after the complaining witness (here Jane is the complaining witness) has testified and has been released from his or her subpoena to appear. Indeed, this is exactly what happened in this case. Here, the State shielded Jane from meaningful cross-examination when it delayed the disclosure of the exculpatory evidence until after Jane had been released from her subpoena.

Surely, the State should not be in a stronger position because it delayed in turning over Brady material to Newson until after Jane was no longer available for cross-examination than the State would have been in if the defense could have cross-examined and impeached Jane’s credibility based on her exculpatory and contradictory text messages she had previously made to John. Our Supreme Court has recognized the following important witness credibility factor: “One of the reasons that appellate courts do not assess witness credibility from the cold record is that the ability to observe the declarant is an important factor in determining whether he or she is being truthful.” State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008). Thus, Newson’s inability to crossexamine Jane due to the State’s delayed disclosure of Brady material cut off a vital line of -impeachment evidence for him to use in testing the truthfulness of Jane’s testimony.

Brady elements

To summarize, there are three elements of a Brady violation: (1) that the evidence at issue was favorable to the accused, either because it is exculpatory or useful for impeachment purposes; (2) that the evidence was suppressed by the State, either willfully or inadvertently; and (3) that the evidence suppressed was material, which means that there is a reasonable probability that if the accused had the evidence, the result of the proceeding would have been different. Hirsh, 310 Kan. 321, Syl. ¶ 1. Here, we conclude that the State’s violation of Brady resulted in Newson not having the best evidence available to effectively present his defense based on undermining Jane’s testimony and strengthening John’s credibility with the jury. When compared to her testimony, Jane’s text messages impeached her credibility. Given this factual scenario and that the evidence against Newson was not overwhelming, there is a reasonable probability that the jury would have acquitted Newson of rape if he had timely access to the text messages to properly incorporate the messages into his consensual sex defense. Indeed, the probability that the jury would have reached a different outcome seems especially reasonable since the jury acquitted Newson of aggravated criminal sodomy.

Closing argument

Previously, our Supreme Court has held that a prosecutor must be careful when using phrases like “we know,” “we submit,” “I know,” and “I submit” during closing arguments to the jury. See State v. King, 308 Kan. 16, 34, 417 P.3d 1073 (2018); State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006). Although a prosecutor may use phrases like “we know” and “I submit” when the prosecutor is speaking about uncontroverted evidence, a prosecutor cannot use these phrases to give the prosecutor’s personal opinion. King, 308 Kan. at 34; Corbett, 281 Kan. at 315-16. A prosecutor  also errs whenever the prosecutor makes an argument that draws inferences for the jury about controverted evidence using such phrases. King, 308 Kan. at 34-35.

During closing arguments, the district attorney made some statements using these controversial phrases. Newson takes issue with the prosecutor saying that the “State submits to you what’s not in dispute is that on that day, on that night . . . the defendant raped and sodomized [Jane].” He takes issue with her statement, “I submit to you we have proven [the] elements [of rape and the elements of aggravated criminal sodomy].” He takes issue with the prosecutor stating that “[t]here was a lot going on, . . . but what we do know is [he] raped [Jane] and sodomized [Jane].” He also takes issue with the prosecutor’s repeated statements that he did not ask for consent and Jane never gave him consent. Newson rightfully points out that by pleading not guilty to rape and arguing that he and Jane had consensual sex, whether he and Jane had consensual sex was a controverted fact. In addition, he stresses that the State’s case against him hinged on Jane’s credibility. He stresses that the prosecutor’s errors involve interjecting her personal opinion about Jane’s credibility. So, under the assumption that this court rules that the prosecutor’s disputed comments were erroneous, he argues that the State cannot prove the prosecutor’s errors were harmless.

Thus

under the doctrine of cumulative error, the prosecutor’s errant statements during closing arguments combined with the harm stemming from the State’s Brady violation requires the reversal of Newson’s rape conviction too.

(mike Frisch)