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Mega Edition: Order Denying Kohberger's Motion To Strike The Death Penalty Or Adopt Other Procedures (8/10/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're going to head right back up to
• 0:05
  Speaker 1: Moscow and we're going to take a look at Judge
• 0:07
  Speaker 1: Hipler's order denying Brian Colberger's motion to strike the death
• 0:11
  Speaker 1: penalty and adot the other necessary procedures. Case number CR
• 0:16
  Speaker 1: zero one, DASH twenty four DASH three one sixty sixty five,
• 0:20
  Speaker 1: State of Idaho Plaintiff, Verst. Brian C. Coberger, the defendant.
• 0:25
  Speaker 1: Defendant contends that the discovery produced by the State in
• 0:28
  Speaker 1: this case has been voluminous and unorganized, thus rendering him
• 0:32
  Speaker 1: unable to meaningfully review and investigate the state's evidence in
• 0:36
  Speaker 1: time for trial. Asserting his due process rights have been violated,
• 0:40
  Speaker 1: defendant seeks sanctions in the form of striking the death
• 0:43
  Speaker 1: penalty and imposing certain organizational requirements upon the state today
• 0:48
  Speaker 1: the defendant's review of discovery. The state responds that it
• 0:51
  Speaker 1: has complied with all discovery obligations, including Brady, and there
• 0:55
  Speaker 1: is no basis for sanctions or other measures or A
• 0:59
  Speaker 1: argument on the motion was held on April ninth, twenty
• 1:02
  Speaker 1: twenty five, after which the court took the matter under
• 1:05
  Speaker 1: advisement because defendants failed to show a discovery violation or
• 1:09
  Speaker 1: due process violation by the state, sanctions are not warranted.
• 1:13
  Speaker 1: The court further declines to require the state to provide
• 1:16
  Speaker 1: further organizational assistance to the defendant. Two standard. A trial
• 1:21
  Speaker 1: court's decision regarding discovery violations must be supported by substantial
• 1:26
  Speaker 1: and competent evidence in the record state verus Coke, one
• 1:29
  Speaker 1: fifty seven Idaho eighty nine, ninety three, twenty fourteen. Choice
• 1:34
  Speaker 1: of sanctions for failure to comply with discovery obligations is
• 1:38
  Speaker 1: discretionary state Verus Cochrane, one, twenty nine, nineteen ninety seven.
• 1:43
  Speaker 1: On discretionary matters, the trial court must one correctly perceive
• 1:46
  Speaker 1: the issues as one of discretion, two act within the
• 1:50
  Speaker 1: outer boundaries of its discretion, three act consistently with the
• 1:54
  Speaker 1: legal standards applicable to the specific choices available to it,
• 1:58
  Speaker 1: and four reach its decision by the exercise of reason.
• 2:02
  Speaker 1: Lanneborg verse My Fun Life, one sixty three, twenty eighteen.
• 2:07
  Speaker 1: Three analysis pursuant of Brady versus Maryland. A prosecutor has
• 2:11
  Speaker 1: a constitutional duty to disclose favorable evidence to the accused
• 2:16
  Speaker 1: where such evidence is material either to guilt or to punishment.
• 2:20
  Speaker 1: Three seventy three US at eighty seven. This duty covers
• 2:24
  Speaker 1: not only exculpatory material, but also information that could be
• 2:28
  Speaker 1: used to impeach a key government witness jilliovers us nineteen
• 2:32
  Speaker 1: seventy two. Brady does not, however, grant broad discovery rights
• 2:37
  Speaker 1: to a defendant. State versus. Campbell, one, seventy, Idaho, two
• 2:40
  Speaker 1: thirty two, twenty twenty two, quoting United States Verse Vaguely
• 2:46
  Speaker 1: for seventy three, nineteen eighty five. An interpretation of Brady
• 2:50
  Speaker 1: to create a broad, constitutionally required right of discovery would
• 2:54
  Speaker 1: entirely alter the character and balance of our present system
• 2:58
  Speaker 1: of criminal justice. It simply imposes the due process standard
• 3:02
  Speaker 1: upon prosecutors by requiring them to disclose favorable material evidence.
• 3:07
  Speaker 1: Campbell won seventy, Idaho, citing vaguely Supra. In tandem with Brady,
• 3:13
  Speaker 1: the Idaho criminal rules require the prosecuting attorney to disclose,
• 3:17
  Speaker 1: as soon as practicable following the filing of charges, any
• 3:21
  Speaker 1: evidence which tends to negate the guilt of the accused
• 3:24
  Speaker 1: as to the offense charged, or which would tend to
• 3:27
  Speaker 1: reduce the punishment. State versus Gardner, one, twenty six, Idaho,
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  Speaker 1: nineteen ninety four, quoting ICR sixteen A, the discovery obligations
• 3:38
  Speaker 1: under both Brady and ICR sixteen extend to all the
• 3:41
  Speaker 1: government agents having a significant role in investigating and prosecuting
• 3:46
  Speaker 1: the offenses. Defending complains that the state has failed to
• 3:49
  Speaker 1: satisfy its obligation under Brady and ICR sixteen due to
• 3:53
  Speaker 1: its method of discovery production. He contends that the state
• 3:56
  Speaker 1: has turned over more than sixty eight terabytes of data
• 4:00
  Speaker 1: in discovery, consisting of an excess of thirteen thousand photographs,
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  Speaker 1: fifteen thousand video clips from businesses, and eight thousand video
• 4:08
  Speaker 1: clips from residences. It also includes more than sixty digital devices,
• 4:14
  Speaker 1: digital data, and search warrant return data. Defendant also contends
• 4:18
  Speaker 1: that the state has not provided the discovery in a
• 4:21
  Speaker 1: searchable format, has not provided detailed logs and indexes that
• 4:25
  Speaker 1: would facilitate defense's review of the material, and has not
• 4:29
  Speaker 1: specifically identified any Brady evidence. Defendant argues he has been
• 4:33
  Speaker 1: prejudiced by the state's data dump method of discovery and
• 4:37
  Speaker 1: contends that sanctions are warranted in the form of striking
• 4:41
  Speaker 1: the death penalty and excluding witnesses. He also asks that
• 4:44
  Speaker 1: the court required the state to identify Brady material or
• 4:48
  Speaker 1: hot documents within its discovery. While the state acknowledges there
• 4:52
  Speaker 1: is a massive amount of data in the case, it
• 4:54
  Speaker 1: contends the majority of it is completely irrelevant. Specifically, the
• 4:59
  Speaker 1: state contends that most of the data is from cell
• 5:01
  Speaker 1: phone extractions and weeks of surveillance video footage throughout the
• 5:05
  Speaker 1: Moscow area obtained following the homicides. It affirmed on the
• 5:10
  Speaker 1: record that is unaware of any Brady material in those
• 5:13
  Speaker 1: videos other than those specifically identified in motion practice and
• 5:18
  Speaker 1: otherwise throughout the case. Further, the state's expert who reviewed
• 5:22
  Speaker 1: the various devices, including cell phones and other digital data,
• 5:26
  Speaker 1: have disclosed opinions that they found no connection between defendant
• 5:29
  Speaker 1: and the victims from the devices and the data. The
• 5:33
  Speaker 1: state also notes that since the case began over two
• 5:36
  Speaker 1: years ago, it has continuously turned the same format as
• 5:40
  Speaker 1: the information was received by the state. This was done
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  Speaker 1: at defendant's request, who specifically asked that the state produce
• 5:47
  Speaker 1: everything the state had from the get go. Defendant also
• 5:51
  Speaker 1: issued four hundred itemized requests for discovery in this case. Thus,
• 5:55
  Speaker 1: the state contends it is on the same playing field
• 5:58
  Speaker 1: as defendant recording discovery. In addition, the state points out
• 6:02
  Speaker 1: that on September fourth, twenty twenty four, at approximately the
• 6:05
  Speaker 1: same time as its discovery deadline, it provided defendant with
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  Speaker 1: a three hundred and twenty page index identifying the location
• 6:13
  Speaker 1: of requested discovery, a description of the evidence, and the
• 6:16
  Speaker 1: date discovered. In addition, all of the evidence received from
• 6:20
  Speaker 1: the FBI, which comprises the majority, was provided to defendant
• 6:24
  Speaker 1: with a searchable index. In some the state asserts it
• 6:27
  Speaker 1: has provided everything required by ICR sixteen A and Brady,
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  Speaker 1: and disputes that it has engaged in any discovery violations.
• 6:36
  Speaker 1: A defendant is not established a discovery violation, thus sanctions
• 6:41
  Speaker 1: are not warranted. There are three components of the true
• 6:44
  Speaker 1: Brady violation. The evidence that issue must be favorable to
• 6:48
  Speaker 1: the accused, either because it's exculpatory or because it's impeaching.
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  Speaker 1: That evidence must have been suppressed by the state, either
• 6:56
  Speaker 1: willfully or inadvertently, and prejudice must have ensued. State verse
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  Speaker 1: Hall Won sixty three Idaho seven forty four, twenty eighteen,
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  Speaker 1: quoting Strickler versus Green five twenty seven, nineteen ninety nine,
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  Speaker 1: Defendant as he appears to have acknowledged that the hearing
• 7:12
  Speaker 1: cannot establish these elements because he is not identified and
• 7:16
  Speaker 1: he withheld evidence that is exculpatory or impeaching. Further, he
• 7:21
  Speaker 1: is not identified any obligation under ICR sixteen that the
• 7:25
  Speaker 1: state is violated. His quibble rather is with the method
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  Speaker 1: in which the state is produced discovery, arguing it is
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  Speaker 1: effectively a data dump that prevents them from meaningfully reviewing
• 7:36
  Speaker 1: the discovery for Brady material. There are, however, several problems
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  Speaker 1: with the defendant's position. First, while neither Brady nor ICR
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  Speaker 1: sixteen prescribe the form discovery must take, it is well
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  Speaker 1: settled under federal law that there is no direct obligation
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  Speaker 1: for the government to identify or itemize Brady material for
• 7:56
  Speaker 1: the defense Rhodes versus Henry, six thirty eight f. Ter
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  Speaker 1: ten thirty nine, noting absence of authority for the proposition
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  Speaker 1: that the government's Brady obligations require it to point the
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  Speaker 1: defense to specific documents within a larger mass of material
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  Speaker 1: that it has already turned over. While the Supreme Court
• 8:15
  Speaker 1: in Brady held that the government may not properly conceal
• 8:18
  Speaker 1: exculpatory evidence from a defendant, it does not place any
• 8:21
  Speaker 1: burden on the government to conduct a defendant's investigation or
• 8:25
  Speaker 1: assist in the presentation of the defense's case US versus Morrero,
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  Speaker 1: nine oh four to Fifth Circuit, nineteen ninety Further, voluminous
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  Speaker 1: discovery alone is not basis for finding concealment under Brady.
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  Speaker 1: This occurs typically in open file discovery, where the government
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  Speaker 1: effectively makes its entire file available to a criminal defendant
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  Speaker 1: US versus Sarafina, DC. Twenty twenty. This method of discovery,
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  Speaker 1: which defendant requested of the state in this case, carries
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  Speaker 1: the recognized benefit of increasing the efficiency and fairness of
• 9:00
  Speaker 1: the criminal process Strickler versus Green, nineteen ninety nine. It
• 9:04
  Speaker 1: is only when the government uses the open file policy
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  Speaker 1: to hide exculpatory material or otherwise prevented defendant's access to
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  Speaker 1: such material, that a Brady violation will be found. For example,
• 9:16
  Speaker 1: in US for a skilling, the Fifth Circuit observe that
• 9:19
  Speaker 1: while the use of aluminous open file does not alone
• 9:22
  Speaker 1: violate Brady, its misuse by the government can give rise
• 9:26
  Speaker 1: to a Brady violation, stating, for instance, evidence that the
• 9:29
  Speaker 1: government padded an open file with pointless information to frustrate
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  Speaker 1: a defendant's review of the file might raise serious Brady issues.
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  Speaker 1: Creating a luminous file that is unduly onerous to access
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  Speaker 1: might raise similar concerns. It should go without saying that
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  Speaker 1: the government may not hide Brady material of which it
• 9:49
  Speaker 1: is actually aware in a huge open file in the
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  Speaker 1: hope that the defendant will never find it. These scenarios
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  Speaker 1: would indicate that the government was acting in bad faith
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  Speaker 1: in performing its obligations under Brady. However, there is no
• 10:03
  Speaker 1: proof that the government lardered its production with entirely irrelevant
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  Speaker 1: documents or made access to documents unduly onerous. A Brady
• 10:11
  Speaker 1: violation will not be found here. The defendant has not
• 10:14
  Speaker 1: shown any bad faith by the State with regard to
• 10:17
  Speaker 1: discovery production. While discovery is indeed voluminous, the court does
• 10:21
  Speaker 1: not find that the manner in which the State produced
• 10:24
  Speaker 1: it violates Brady or otherwise constitute's misconduct. The discovery was
• 10:29
  Speaker 1: produced to defendant as he specifically requested. The State received
• 10:33
  Speaker 1: the information from its investigating agencies, labeled the materials, and
• 10:37
  Speaker 1: turned them over to the defendant through a shared access
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  Speaker 1: drive in the same format as received. This method not
• 10:44
  Speaker 1: only puts the State and defendant on equal footing regarding
• 10:48
  Speaker 1: discovery review, it also serves the important purpose of protecting
• 10:51
  Speaker 1: against claims of missing or manipulated documents if the state
• 10:55
  Speaker 1: puts them in a different format or organization, or otherwise
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  Speaker 1: conveys them to a defendant in a different manner than received.
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  Speaker 1: While the State acknowledges that much of the discovery is
• 11:04
  Speaker 1: completely irrelevant, including surveillance videos and data from numerous phones, computers,
• 11:10
  Speaker 1: and other devices, it did not produce it for purposes
• 11:12
  Speaker 1: of patting the file or otherwise attempting in bad faith
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  Speaker 1: to hide Brady information in its haystack of information. Rather,
• 11:21
  Speaker 1: the defendant asked for everything, and everything is what he received.
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  Speaker 1: Defendant cannot demand everything under the sun and then complain
• 11:30
  Speaker 1: about the weight of all the planets. Moreover, defendant has
• 11:33
  Speaker 1: not produced any evidence showing the State has hidden Brady
• 11:36
  Speaker 1: material or made his access to discovery on duly onerous.
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  Speaker 1: Although the State did not provide all of the discovery
• 11:43
  Speaker 1: in a searchable format, as it was not received by
• 11:46
  Speaker 1: the state in such a format, it provided a three
• 11:48
  Speaker 1: hundred and twenty page index identifying the specific location of
• 11:52
  Speaker 1: evidence produced in response to defendants four hundred individual discovery requests,
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  Speaker 1: a description of the evidence and the date discovery In addition,
• 12:01
  Speaker 1: the discovery received from the FBI, which comprised the majority,
• 12:05
  Speaker 1: was provided to defendant in a searchable format other than
• 12:09
  Speaker 1: that the cell phone, digital data and video surveillance footage.
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  Speaker 1: Defendant has not identified what information is counsel will be
• 12:16
  Speaker 1: unable to review prior to trial, and why that information
• 12:19
  Speaker 1: is material. Further, the State has stipulated that it's unaware
• 12:24
  Speaker 1: of any Brady material in the video surveillance footage other
• 12:27
  Speaker 1: than specifically identified motion practice, and its experts who have
• 12:31
  Speaker 1: reviewed all the cell phone and other digital data in
• 12:34
  Speaker 1: the case have alpined they found no connection linking defendant
• 12:38
  Speaker 1: to the devices and data analyzed. In addition, Defendant's complaints
• 12:43
  Speaker 1: of being unable to meaningfully review the discovery ring hollow.
• 12:47
  Speaker 1: Defendant has been receiving discovery in the same manner for
• 12:50
  Speaker 1: over two years. In that time, he has not once
• 12:53
  Speaker 1: sought a remedy from this court to regulate discovery, such
• 12:56
  Speaker 1: as requiring the State to provide discovery in a different format.
• 13:00
  Speaker 1: He has not sought additional resources under ICR twelve dot
• 13:04
  Speaker 1: two to hire additional staff to review discovery or obtain
• 13:07
  Speaker 1: litigation document control software to help organize and sort evidence.
• 13:12
  Speaker 1: His lead council insisted that she be allowed to take
• 13:15
  Speaker 1: on a second high profile capital case, despite the voluminous
• 13:18
  Speaker 1: discovery in this case. Further, at oral argument, lead council
• 13:22
  Speaker 1: indicated that our practice is to personally review the discovery yourself,
• 13:27
  Speaker 1: rather than rely on associates and staff to review materials,
• 13:30
  Speaker 1: to cut through the less relevant information and point to
• 13:33
  Speaker 1: what materials need review by lead council. These actions are
• 13:37
  Speaker 1: not indicative of an overburdened defense team. In fact, it's
• 13:41
  Speaker 1: evident defendant has been able to capably navigate the discovery,
• 13:45
  Speaker 1: given as more than a robust motion practice, the scope
• 13:48
  Speaker 1: and breadth of the experts retained and the disclosures filed.
• 13:53
  Speaker 1: See Warshank one, ninety seven to ninety eight. No Brady
• 13:56
  Speaker 1: violation where there was no proof the government hit excls
• 14:00
  Speaker 1: valplatory evidence, and where the defendant's motion practice belied his
• 14:03
  Speaker 1: claim that he was unable to navigate the discovery. In
• 14:07
  Speaker 1: the cases cited by defendant where the courts have struck
• 14:10
  Speaker 1: the death penalty as a sentencing option, the defendant had
• 14:13
  Speaker 1: demonstrated that the prosecution either wilfully or inadvertently, but with
• 14:17
  Speaker 1: extreme resulting prejudice violated discovery obligations here. However, defendant has
• 14:23
  Speaker 1: not established a discovery violation under Brady or ICR sixteen.
• 14:28
  Speaker 1: In the first place, he has not shown the state
• 14:30
  Speaker 1: is attempted to conceal specific materials within the discovery, and
• 14:34
  Speaker 1: he has not shown discovery to be unduly burdensome to
• 14:37
  Speaker 1: the point where he's unable to examine the items that
• 14:40
  Speaker 1: are material and of evidentiary value. Consequently, there is no
• 14:45
  Speaker 1: basis for any sanction, let alone striking the death penalty.
• 14:49
  Speaker 1: All right, we're going to wrap up right here, and
• 14:51
  Speaker 1: in the next episode, we're going to pick up where
• 14:53
  Speaker 1: we left off. All of the information that goes with
• 14:55
  Speaker 1: this episode can be found in the description box. What's up, everyone,
• 15:00
  Speaker 1: and welcome back to the program. In this episode, we're
• 15:02
  Speaker 1: getting right back to it with Judge Hipler's order denying
• 15:06
  Speaker 1: Brian Colberger's motion to get rid of the death penalty
• 15:10
  Speaker 1: and adopt other necessary procedures. State vs. Skuyler mead nes
• 15:15
  Speaker 1: Percy County case number CR thirty five twenty four three
• 15:19
  Speaker 1: seven five zero See State verus Colberger's CR zero one
• 15:23
  Speaker 1: twenty four dash three one sixty sixty five October eighth
• 15:27
  Speaker 1: twenty twenty four xparte hearing minutes sealed. United States versus
• 15:33
  Speaker 1: Rivera Clemente, twenty twelve w L one two nine one
• 15:37
  Speaker 1: one zero five to one oh one, DPR September nineteenth,
• 15:40
  Speaker 1: twenty twelve, where the government showed a troubling reluctance to
• 15:44
  Speaker 1: disclose information relevant to the death penalty certification process, including
• 15:49
  Speaker 1: Brady material. Decertification was appropriate due to prejudice to defendant.
• 15:54
  Speaker 1: United States versus Rosato Rosario, nineteen ninety eight, DPR January fifteenth,
• 16:00
  Speaker 1: ninety eight. Striking death penalty is a sanction where the
• 16:03
  Speaker 1: government refused to comply with discovery order and filed the
• 16:06
  Speaker 1: notice of intent to seek the death penalty without first
• 16:09
  Speaker 1: seeking certification. Gardner vers. Florida for thirty US three forty nine,
• 16:15
  Speaker 1: nineteen seventy seven, Vacating death sentence for violation of due
• 16:18
  Speaker 1: process where death sentence was imposed based in part on
• 16:23
  Speaker 1: a pre sentenced investigation report that was not disclosed in
• 16:26
  Speaker 1: full to defendant so as to allow them the opportunity
• 16:29
  Speaker 1: to deny it or explain. State Versus Lori Valo de Belle,
• 16:34
  Speaker 1: Fremont County case number CR twenty two, twenty one sixteen,
• 16:38
  Speaker 1: twenty four March twenty first, twenty twenty three hearing striking
• 16:42
  Speaker 1: the death penalty is a sanction for the states inadvertent
• 16:44
  Speaker 1: failure to produce over one hundred hours of phone calls
• 16:47
  Speaker 1: and video visits containing statements of the defendant until two
• 16:51
  Speaker 1: weeks prior to jury selection, and the defendant had not
• 16:55
  Speaker 1: waived speedy trial. The transcript of the hearing was filed
• 16:58
  Speaker 1: November twenty fourth, twenty three. In that case, and to
• 17:01
  Speaker 1: the extent necessary, the Court takes judicial notice thereof under
• 17:06
  Speaker 1: iri to A one C. Indeed, the defendant has struggled
• 17:09
  Speaker 1: to identify materials that he has been unable to review
• 17:13
  Speaker 1: at all, except to indicate that lead Council has not
• 17:16
  Speaker 1: been able to personally review all the surveillance videos and
• 17:19
  Speaker 1: devise data produced, most of which the State is conceded
• 17:23
  Speaker 1: are not of evidentiary value and are neither exculpatory or inculpatory. B.
• 17:29
  Speaker 1: The Court declines to impose organizational requirements on the state.
• 17:34
  Speaker 1: Defendant additionally asks the Court to require the State to
• 17:37
  Speaker 1: identify Brady material or hot documents within its discovery. The
• 17:41
  Speaker 1: Court finds that neither is warranted. While the general rule
• 17:44
  Speaker 1: is the government need not specifically identify a Brady material
• 17:47
  Speaker 1: within the larger mass of disclosed evidence. Courts will sometimes
• 17:52
  Speaker 1: order the government to organize voluminous discovery to comply with
• 17:56
  Speaker 1: the spirit of its statutory and constitutional obligations. Such organizational
• 18:01
  Speaker 1: measures include requiring that the government specifically designate any known
• 18:06
  Speaker 1: Brady material within its discovery. Whether to order such identification
• 18:11
  Speaker 1: is highly dependent on the facts and circumstances of the case.
• 18:15
  Speaker 1: Courts consider not only the volume of discovery and how
• 18:19
  Speaker 1: it was produced, but the relative position of the defendant
• 18:22
  Speaker 1: requesting identification, such as a defendant's access to council, whether
• 18:28
  Speaker 1: the defendant is incarcerated, a defendant's access to resources, defendant's
• 18:33
  Speaker 1: ability to participate in their preparation of his own defense,
• 18:36
  Speaker 1: and whether the interests of multiple defendants are aligned. Us
• 18:40
  Speaker 1: versus Lacey Arizona, October fifteen, twenty eighteen in Safarina, for example,
• 18:46
  Speaker 1: the government produced approximately one million records and three million
• 18:50
  Speaker 1: pages of documents in discovery. With this discovery, the government
• 18:54
  Speaker 1: provided production logs, bait stamping, and metadata in an electronic
• 18:59
  Speaker 1: and searchable format. The court found that under the circumstances,
• 19:03
  Speaker 1: the government's Brady obligations required it to identify any known
• 19:07
  Speaker 1: Brady material to the extent that the government knows of
• 19:11
  Speaker 1: any such material in its production. In doing so, the
• 19:15
  Speaker 1: court emphasized that the defendant was voluntarily corporate assistants to
• 19:19
  Speaker 1: sift through the massive amounts of documents within the government's
• 19:23
  Speaker 1: voluminous production, that the defendant's council was handling the case
• 19:27
  Speaker 1: pro bono with time constraints and limited financial resources, and
• 19:32
  Speaker 1: that the government, assisted by at least two federal prosecutors
• 19:35
  Speaker 1: and several federal agents from at least two law enforcement agencies,
• 19:39
  Speaker 1: had the luxury of reviewing this material on a rolling
• 19:42
  Speaker 1: basis over the course of its three year investigation. Likewise,
• 19:46
  Speaker 1: in Salure, the court directed the government to identify previously
• 19:50
  Speaker 1: disclosed Brady Gillio material to the defendant. Where the government
• 19:54
  Speaker 1: collected documentary information during a five year investigation, and the
• 19:58
  Speaker 1: government's massive production consisted of electronic information with multiple gigabytes
• 20:03
  Speaker 1: and millions of pages. The court reached that conclusion based
• 20:07
  Speaker 1: on the circumstances of that case, which included one, there
• 20:11
  Speaker 1: was a singular individual defendant who was detained in jail
• 20:14
  Speaker 1: pending trial and who was represented by a relatively small
• 20:18
  Speaker 1: defense team, and two there was no parallel civil litigation
• 20:22
  Speaker 1: and the defendant did not have access to voluntary corporate
• 20:25
  Speaker 1: assistants in attempting to find the documents needed by the defense.
• 20:30
  Speaker 1: By contrast, in the United States versus Meek, the court
• 20:33
  Speaker 1: declined to compel the government to identify Brady material in
• 20:36
  Speaker 1: its discovery, noting that one, the government produced the discovery
• 20:41
  Speaker 1: in a user friendly, searchable and index format. Two, there
• 20:45
  Speaker 1: was no indication that the government deliberately concealed or buried
• 20:48
  Speaker 1: any exculpatory evidence in the information it turned over to
• 20:51
  Speaker 1: the defense. Three, the defendants were sophisticated, formally high level
• 20:56
  Speaker 1: executives represented by experienced and talented counts from notable law firms.
• 21:01
  Speaker 1: And for the defendants had access to the discovery for
• 21:05
  Speaker 1: over a year and had it in the same format
• 21:08
  Speaker 1: that the government did. The court further pointed out that
• 21:12
  Speaker 1: ordering the government to identify or label already produced material
• 21:16
  Speaker 1: is covered by Brady and by omission identified non Brady
• 21:20
  Speaker 1: material only invites future disputes as to whether the government
• 21:24
  Speaker 1: did an adequate job of identifying such material or characterized
• 21:29
  Speaker 1: the material consistent with the defendant's view of it. See
• 21:32
  Speaker 1: also US first Blanken Ship twenty fifteen, SD Virginia, June twelfth,
• 21:38
  Speaker 1: twenty fifteen, requiring government specifically to designate any known Brady
• 21:43
  Speaker 1: materials within its four million pages of discovery that was
• 21:47
  Speaker 1: disorganized and unsearchable, where the government had several years to
• 21:51
  Speaker 1: review the material yeah the defendant had only five months,
• 21:55
  Speaker 1: and where the defendant claimed the government was burying exculpatory
• 21:58
  Speaker 1: evidence Tissia, nineteen ninety eight. The government cannot meet its
• 22:04
  Speaker 1: Brady obligation by providing the defendant with access to six
• 22:08
  Speaker 1: hundred thousand documents and then claiming that the defendant should
• 22:11
  Speaker 1: have been able to find the exculpatory information in the haystack.
• 22:14
  Speaker 1: US first Cutting twenty seventeen January twelfth, twenty seventeen, requiring
• 22:20
  Speaker 1: the government to identify all known Brady material and discovery
• 22:24
  Speaker 1: numbering in the millions of pages. See also Skilling five
• 22:27
  Speaker 1: point fifty four, holding the government was not required to
• 22:30
  Speaker 1: identify Brady material where there was no indication that the
• 22:34
  Speaker 1: government was hiding exculpatory evidence, and where its discovery, consisting
• 22:38
  Speaker 1: of several million pages of documents, was electronic and searchable,
• 22:42
  Speaker 1: accompanied by indices and identified hawk documents that the prosecution
• 22:47
  Speaker 1: viewed as particularly relevant. While defendant is currently incarcerated, he
• 22:53
  Speaker 1: has a robust defense team and has not faced time
• 22:55
  Speaker 1: constraints given a speedy trial waiver, with this case well
• 22:59
  Speaker 1: over two years old. Further, unlike in the Sarafina and Celluar,
• 23:03
  Speaker 1: defendant has nearly as much time as the state to
• 23:06
  Speaker 1: review discovery. Defendant was arrested on December thirtieth, twenty twenty two,
• 23:11
  Speaker 1: approximately six weeks after the Homicides Defense Council filed a
• 23:15
  Speaker 1: notice of appearance on January twelfth, twenty twenty three, and
• 23:19
  Speaker 1: the state first began providing discovery on January eighteenth, twenty
• 23:23
  Speaker 1: twenty three. Thus, this is not a situation where the
• 23:26
  Speaker 1: state has had the benefit of years long investigation compared
• 23:30
  Speaker 1: to a defendant who has had mere months to review
• 23:33
  Speaker 1: the investigative material. Further, the court share is the significant
• 23:37
  Speaker 1: concern voiced in Meek that requiring the state to identify
• 23:42
  Speaker 1: Brady material in already produced discovery, or to organize it
• 23:46
  Speaker 1: in a way different from how the state received it
• 23:48
  Speaker 1: would simply invite future litigation as to whether the state
• 23:52
  Speaker 1: did a sufficient job. Not infrequently, what constitutes Brady material
• 23:56
  Speaker 1: is fairly debatable. Where the circumstances do not, as here
• 24:00
  Speaker 1: cry out for a departure from the general rule, the
• 24:03
  Speaker 1: court will not invite such further disputes. In addition, there
• 24:07
  Speaker 1: is no need to require the state to disclose a
• 24:09
  Speaker 1: list of hot documents, which is a tool imposed by
• 24:12
  Speaker 1: some courts for particularly voluminous discovery to the defendant in
• 24:17
  Speaker 1: identifying material that deserves closer attention Chen Bryan, Big Data
• 24:22
  Speaker 1: and Brady Disclosures ninety nine, one seventy five to four
• 24:26
  Speaker 1: seventeen eighty eight, November twenty twenty four. The state has
• 24:30
  Speaker 1: effectively already done so. Defendant was indicted by a grand jury.
• 24:34
  Speaker 1: This process required the state to present evidence supporting the
• 24:38
  Speaker 1: elements of the charges and identify any substantial evidence which
• 24:42
  Speaker 1: directly negates the guilty of the subject of the investigation.
• 24:46
  Speaker 1: ICR six point one B one. Defendant is privy to
• 24:49
  Speaker 1: all the evidence produced by the state at the grand
• 24:52
  Speaker 1: jury proceedings in this matter. Further, the state recently disclosed
• 24:55
  Speaker 1: its exhibit and witness lists, identifying precisely what the state
• 24:59
  Speaker 1: intendis to use to support its case. Additionally, the state
• 25:03
  Speaker 1: has taken reasonable steps to a defendant in navigating the discovery,
• 25:07
  Speaker 1: including by one providing a detailed index of all discovery produced,
• 25:11
  Speaker 1: identifying the location, a description of the evidence and the
• 25:15
  Speaker 1: data discovered, two providing the FBI materials with a searchable index,
• 25:20
  Speaker 1: three working with counsel to resolve access problems to documents,
• 25:24
  Speaker 1: and four representing the surveillance videos other than those highlighted
• 25:28
  Speaker 1: by the State do not contain any relevant footage, that
• 25:31
  Speaker 1: any of the devices, phones, and other digital data of
• 25:33
  Speaker 1: the victims and others do not show any connection between
• 25:36
  Speaker 1: the defendant and the victims. Collectively, this provides defendant reasonable
• 25:40
  Speaker 1: means to meaningfully review the discovery he requested. Consequently, the
• 25:45
  Speaker 1: court declined to impose additional organizational requirements five order based
• 25:51
  Speaker 1: on the foregoing the defendant's motion to strike the death
• 25:53
  Speaker 1: penalty and adopt other necessary procedures. Due to states disclosure
• 25:57
  Speaker 1: of violations is denied order this day of April twenty ninth,
• 26:02
  Speaker 1: twenty twenty five, and this was signed by Judge Hipler.
• 26:05
  Speaker 1: All of the information that goes with this episode can
• 26:08
  Speaker 1: be found in the description box.