It’s 2002: You’ve been accused of murder and held in jail. But then your lawyer says the prosecution has turned over a police report in which an informant said someone else confessed to the crime.

Trouble is, the District Attorney blacked out the informant’s name and contact information. Your lawyer doesn’t have much to go on.

Two years later, a jury finds you guilty, and a judge sentences you to 45 years in prison. Your lawyer never found the informant, and the judge excluded his reported statements to the cops as hearsay.

The jury never even learned that someone else confessed.

Legal Aid appeals your case on the grounds the prosecution suppressed exculpatory evidence by concealing the informer’s name. But the Appellate Division denies your appeal.

Sound like an over-the-top Hitchcock plot?

Not to Julio Alvarez, Green Haven Correctional Facility’s inmate number 04A1772.

It is unclear why police initially targeted Alvarez as a suspect in the murder of local drug boss Danny Colon on an early April afternoon in 2002.

Neither of the eyewitnesses (who were both drug-dealing associates of the decedent and who sustained gunshot wounds during the incident) identified Alvarez as the perpetrator when they were shown his picture as part of a photo array in the days immediately following the shooting.

Then, according to their trial testimony, Colon’s family visited and asked them to “cooperate” with the investigation. Shortly thereafter, both picked Alvarez from a live police lineup.

On May 3, a grand jury in Bronx County Supreme Court indicted Alvarez on one count of second-degree murder and two counts of assault.

In the interim, an alternative scenario and suspect had come to light, but the prosecution withheld both names and contact information for those witnesses from the defense.

Not for lack of requests: The court file contains five letters from Alvarez’s trial lawyers to the prosecution, copied to the judge, asking the DA to turn over any discovery not already provided. Two letters referred specifically to witness names and contact information.

Bronx District Attorney Robert T. Johnson defends his office’s response. “They asked us, but I don’t think they asked the court to compel us,” he said. “As a defense lawyer, I certainly would want as much [disclosure] as I can get and as early as I can, but I think our response is reasonable.”

Legal Aid’s William Carney, who helped argue People v. Alvarez on appeal, disagrees. “If they can turn over redacted information and say that’s sufficient disclosure, if that’s the case, [then] they’ll never turn over anything that’s useful to the defense,” he said.

In 1963’s Brady v. Maryland, the U.S. Supreme Court ruled that prior to trial, prosecutors must turn over evidence in their possession that is materially helpful to the defense. Failure to do so violates the defendant’s right to a fair trial under the Fourteenth Amendment’s due process clause.

On the eve of trial, having failed in their effort to find most of the individuals connected with the Brady statements, Alvarez’s trial lawyers implored Bronx Supreme Court Justice Edward M. Davidowitz to remedy prosecution’s tardy disclosure by allowing them to introduce favorable witness statements recorded by the detectives (which would normally be excluded as hearsay since they were not uttered in court).

The judge demurred, saying he he wasn’t sure that “delinquencies in the past” should be “re-litigated.” He said he would defer to the previous ruling by Bronx Supreme Court Justice Troy K. Webber, who had overseen the motion practice and discovery, declaring, “I can’t make a judgment on that.”

In essence, the judge concluded that the prohibition on hearsay trumped the Brady requirements. Defense was forbidden to cross-examine Detective Gary Alfred about why he chose not to pursue the lead provided, which might well have impeached the department’s thorough investigation of the case.

On February 10, 2004, a jury found Alvarez guilty of first-degree manslaughter and two assaults. Five weeks later, Davidowitz sentenced Alvarez to consecutive terms of 25 years — the max — for killing Colon, plus two 10-year terms for the assaults.

Alvarez won’t be eligible for parole until 2040. He’ll be 64 years old.

Some legal theorists have argued that suppressing exculpatory evidence violates not only the Fourteenth Amendment’s due process clause, but the defendant’s Sixth Amendment right to effective assistance of counsel as well, by making it impossible for defense lawyers to thoroughly investigate any case for reasonable doubt.  

Professor Jenny Roberts of Syracuse University College of Law explored that issue in a May 2004 Fordham Urban Law Journal article.

Her analysis showed that New York State’s discovery rules tend to favor narrow interpretations of a prosecutor’s responsibility to apprise a defendant of the case against him.

Judges do have discretion, said Professor Roberts in an interview, and she added, “I think they’re trying too hard to keep too much [evidence] out.”

Weeks after arguing Alvarez’s case before the Appellate Division, Carney was still livid over Davidowitz’s reason for excluding statements about the alternate confessor.

The judge’s ruling was “bizarre,” Carney wrote in his brief. “It is unthinkable that the court could . . . distance itself. . . . [The] ‘delinquencies’ were part of this case and directly related to the People’s late disclosure.”

Professor Roberts agreed. Regarding Davidowitz’s ruling that the prohibition on hearsay trumped the defendant’s Brady rights, she said, “The court is taking the prosecutor’s failure to turn the stuff over in a timely manner and using that to justify keeping it out,” she said. "[That] seems both inherently unfair, and it violates the spirit and purpose of Brady.”

Interpretations of materiality are crucial here. Under 1999’s Strickler v. Greene, such information can fall into two categories: exculpatory evidence that tends to exonerate the defendant, and evidence that tends to impeach government witnesses by discrediting either their testimony or reliability.

Johnson insists that turning over the statements and police reports constituted adequate fulfillment of his office’s obligations. “I don’t think Alvarez is a Brady issue,” he said. The state’s brief to the appellate bench expands the point: “There is nothing inherent in a name or address that proves a particular person’s guilt or innocence, or proves impeachment of a witness. What matters, for Brady purposes, is the potential evidence that a witness offers: not his identity.”

Technically, for the reason the prosecution offered (that they are not “inherently” exculpatory), it is true that names aren’t Brady material in and of themselves, said Professor Roberts. But, she added, “basically, you have to ask, 'Why does the prosecution want to hide this? . . . What are we worried about here?' If there is a possible other person, the jury should know about it.”

OF JUDGES AND JUDGMENT CALLS

When the DA finally turned over the contact information, all but one of the addresses was stale. The key figure was long gone.

DA Johnson defended the practice of withholding such witness information: “We’ve had cases where the witness is intimidated when the defense approaches them.”

But Legal Aid’s Carney pointed out that the witnesses in question would have been testifying for the defendant — who obviously would have had no motive to intimidate them.

Moreover, Carney said, it makes no sense that people who merely speak to the police and never appear in court qualify for a degree of protection that “trumps” the defendant’s Brady rights. The prosecution, he said, kept “raising all these hurdles for the defense, [but] it’s their obligation” to turn over all exculpatory or impeachment material. “For us, this whole case was about Brady materials and the fact that we didn’t get them until it was too late.”

Proper remedies for Brady violations come down to a judgment call — and all calls are not created equal.

With a reversal rate of only 3.5 percent between 2000 and 2005 (compared to a 7.0 percent average for his Criminal Term colleagues overseen by the Appellate Division, First Department), Justice Davidowitz is no lightweight. He also counts 20 years on the bench.

His pre-bench background is similarly impressive, though defense might have been most impressed by his stint as a prosecutor (click here for a review of the number of judges who were once prosecutors). After serving as a New York County assistant district attorney in the 1970’s, he moved to the office of the Special Prosecutor in 1980, where he stayed until 1986, when then-Governor Mario Cuomo appointed him to the Court of Claims. Court administration appointed him an Acting Supreme Court Justice the same year.

In 1996, he presided over the murder trial of Johnson Edwards, who was on trial for killing an auxiliary police officer. The jury found Edwards guilty, and Davidowitz sentenced him to 32 years-to-life.

Problematically, during the trial he had declined to conduct an in camera hearing with the confidential informant whose tip led cops to arrest Edwards. That ran counter to appellate precedent.

Although the informant’s story eventually held up, Davidowitz endured intense scrutiny by a press corps that was highly critical of his decision, because it could have established a technicality that would allow a cop killer to walk free.

As for Alvarez, in addition to denying defense the right to introduce at least the existence of the unnamed witness accounts, Davidowitz also refused defense counsel’s request to cross-examine the lead detective regarding his decision not to pursue the alternative suspect.

The Appellate Division agreed with Davidowtiz’s call, saying in its opinion that the reports “contained sufficient information to allow the defense to conduct an investigation of the relevant allegations.” Therefore, the appellate bench said, Alvarez was entitled to no remedies whatsoever. His conviction and sentence would stand.

For now.
 
A July 2007 decision by the U.S. Court of Appeals for the Second Circuit in United States v. Rodriguez indicates that high courts are aware of discovery’s current inconsistency, as attorneys Katya Jestin and Andrew Weissmann of Jenner and Block observed in a recent article for The New York Law Journal. In Rodriguez, the Second Circuit ruled that the government must turn over favorable evidence “in sufficient time that the defendant will have a reasonable opportunity to act upon the information efficaciously” and that “disclosures must be sufficiently specific and complete to be useful.”

Of course, such analysis can only occur after the fact. Which is why, last week, Legal Aid began the process of appealing Alvarez’s case to the New York Court of Appeals.

A ruling for greater procedural transparency might yet spring Alvarez. If not, no matter how brightly the sun shone on the April afternoon when Danny Colon was shot, as far as Julio Alvarez is concerned, it might as well have been a shot in the dark.

Next week: The discovery debate — in chambers, and in Albany.