Massachusetts Supreme Court: Brady Requires Disclosure of Exculpatory Material Revealed During Immunized Testimony Before Grand Jury
by Douglas Ankney
The Supreme Judicial Court of Massachusetts affirmed an order of a trial judge requiring a district attorney to disclose to defense attorneys details of misconduct by two police officers that were disclosed during the immunized testimony of the officers before a grand jury.
In July 2019, Fall River police officer Michael Pessoa submitted an arrest report, claiming the arrestee was noncompliant and threatened to punch the officers whereupon Pessoa used force (an “arm bar take down”) to take the arrestee to the ground. Because the arrestee was noncompliant, Pessoa added a charge of resisting arrest. Two additional Fall River officers were present during the arrest, and they each submitted use-of-force reports corroborating Pessoa’s account and supporting the additional charge of resisting arrest.
Shortly thereafter, surveillance video revealed that the arrestee had been compliant when Pessoa approached and punched the man on the left side of his head, and then, Pessoa violently took him to the ground in a manner not using the arm bar takedown. An ensuing criminal investigation resulted in 15 indictments against Pessoa. During the course of the investigation, the district attorney obtained orders of immunity pursuant to G. L. C. 233, §§ 20C-20G for the two officers who were present during the arrest. In the officers’ testimony before a grand jury, they each admitted to filing the false use-of-force reports.
The district attorney then filed a motion in Superior Court requesting the authority to disclose the information revealed by the officers to defense attorneys in cases where the officers had either filed a report or would be called to testify. The Superior Court granted the motion. The officers appealed.
The Court observed “[u]nder the due process clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, a prosecutor must disclose exculpatory information to a defendant that is material either to guilt or punishment.” Brady v. Maryland, 373 U.S. 83 (1963). When the reliability of a given witness may be determinative of guilt or innocence, evidence affecting that witness’ credibility must be disclosed. Giglio v. United States, 405 U.S. 150 (1972). Impeachment evidence is exculpatory and must be disclosed. Commonwealth v. Hill, 739 N.E.2d 670 (Mass. 2000). A prosecutor is required as part of automatic discovery to disclose to the defendant “[a]ny facts of an exculpatory nature.” Mass. R. Crim. P. 14(a)(1)(A)(iii).
The Court rejected the officers’ four arguments against disclosure. First, the officers argued that since failure to disclose the information would not require a reversal of any defendant convicted at a trial where the officers testified, then the information isn’t Brady material. That is, under United States v. Bagley, 473 U.S. 667 (1985), a prosecutor’s failure to disclose exculpatory information is not a breach of the prosecutor’s duty to disclose unless the evidence is “material,” i.e., had the evidence been disclosed, there is a reasonable probability that result of the proceeding would have been different.
The Court reasoned that the officers were equating a duty to disclose with the standard of review used to determine whether failure to disclose requires a new trial. The Court had declined to adopt the Bagley standard, choosing instead to adhere to the test in United States v. Augurs, 427 U.S. 97 (1976), which requires only a showing that the evidence “might have affected the outcome of the trial.” And in Massachusetts, the rules of criminal procedure require disclosure. A prosecutor’s duty to disclose is based upon whether the information is exculpatory. When deciding to disclose evidence, the prosecutor is not to weigh whether it is material, the Court explained.
The Court also rejected the officers’ argument that the since the information wasn’t admissible at any trial, it should not be disclosed. Generally, specific instances of misconduct for impeachment purposes are not admissible absent a conviction. Commonwealth v. LaVelle, 605 N.E.2d 852 (Mass. 2000). But there are narrow exceptions where the interest of justice prohibits strict application of the rule. Id. It is for a trial judge to decide whether evidence of misconduct in the absence of a conviction should be admitted. Commonwealth v. Lopes, 91 N.E.3d 1126 (Mass. 2018).
Next, the Court rejected the argument that the orders of immunity under G. L. c. 233, §§ 20C-20G prohibit disclosure. The immunity protected the officers only from prosecution in any criminal or civil action based upon their immunized testimony or based upon any evidence obtained as a result of their testimony. Matter of a John Doe Grand Jury Investigation, 539 N.E.2d 56 (Mass. 1989). Immunity does not protect from community scorn, embarrassment, or even being fired from one’s job when details of misconduct become known by the public.
Finally, the Court rejected the argument that disclosure violates the rule that grand jury proceedings are to be kept secret. Disclosure of the information is part of a prosecutor’s duty, and as such, it is part of the grand jury proceedings that are intended for disclosure. Mass. R. Crim. P. 5(d).
The Court concluded that the information was Brady material that the prosecutor had a duty to disclose to defense attorneys where the officers may be witnesses or where they had filed a report.
Accordingly, the order of the Superior Court was affirmed. See: In the Matter of a Grand Jury Investigation, 152 N.E.3d 65 (Mass. 2020).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
In the Matter of a Grand Jury Investigation
| Year | 2020 |
|---|---|
| Cite | 152 N.E.3d 65 (Mass. 2020) |
| Level | State Supreme Court |
| Conclusion | Bench Verdict |
