Former AUSA Smackdown!

If you ever wondered whether or not there is a significant difference between litigating in Federal and State criminal court, look no further than Cliff Berry Inc. v. State of Florida.

Case reversed on Jury instruction, but took time to address a Richardson issue. 

Richardson, for those of you who don't know, basically says that a trial court must conduct an inquiry when there is a discovery violation.  In federal court, that would be the equivalent of actually holding AUSAs responsible when they...let's say...fail to turn over Giglio until the week before trial, when they were supposed to do it 14 days after the discovery order was entered.

Apparently, the former AUSA was practicing like he was back over in federal land where the lunatics run the asylum and there is no accountability as to prosecutors.  Here is the section dealing with the discovery violation:

"The record demonstrates that on November 26, 2008 – the day Schneir began testifying and before the State concluded its direct examination – defense counsel alerted the trial court to a possible discovery violation after it became clear that Schneir’s trial testimony was a significant departure from his pre-trial
statements and deposition:

[DEFENSE COUNSEL]: Judge, one request before we break, it’s through the Court to the prosecutors. . . .
Apparently now, with Mr. Schneir[’s] testimony and questions, it’s clear that Mr. Schneir’s testimony is at
odds with both his sworn [testimony] in May to the prosecutors, and his deposition in June.  And I’m asking if there are other statements, interviews or notes that occurred since that time, that are inconsistent with his prior testimony, that under Brady, that they be produced.

. . . .

THE COURT: So you’re invoking Brady, and I’m assuming, Mr. Scruggs, you’re aware of that, and
anything they are entitled to, you have turned over?

(Tr. 1545-46.)

The prosecutor denied being in possession of any such materials and asserted that “if I had any such reports or anything, they would have gotten them a long time ago.” (Tr. 1546.) [This line of course is cut and paste from the standard response in federal court...'the government is aware of...and will comply...]

Defense Counsel continued:

It’s clear from the question asked about dates and how he [Schneir] lied and all the meetings about dates, that Mr. Scruggs, before he asked these questions, knew that the testimony was going to vary from the sworn testimony previously given.

I believe that the oral statements have been made to Mr. Scruggs or to Mr. Fiedler that are inconsistent, that is within the obligation the prosecutor owes, and I cannot believe that Mr. Scruggs asked the questions, and is
surprised to hear that now the witness is testifying in variance.

So, I think there are statements out there, with all respect to Mr. Scruggs that Mr. Scruggs knows perfectly well and I ask for them now.

(Tr. 1546.)

In the exchange with the trial court that followed, the prosecutor agreed to think about and produce any undisclosed oral or written statements to the defense over the holiday weekend.

As we have already noted, based on the Assistant State Attorney’s Script, [in federal land, this would be referred to as work product, rather than the testimony the prosecutor prepared for the witness] it is clear that the State was aware Schneir would depart significantly from his pretrial sworn statement and deposition at trial before Schneir took the stand. For example, the Script summarizes the information the Assistant State Attorney expected to elicit from Schneir as follows:

• “Theft actually started in early 2000.”

• With respect to the outbound fuel lines, fuel was stolen “approx 12 times in 2000 to March 2003,” and with respect to the inbound fuel lines, fuel was stolen “approx 12 times.”

(Script, at R. P3364-65.)

The Script also outlines questions the Assistant State Attorney planned to (and did, in some form) ask Schneir at the trial:

• “Why lower numbers [and] wrong times for fuel theft?”

• “Why did you give wrong dates in depo?”

• “Why did you give wrong numbers/times in depo?” (Below this series of questions, the words “MINIMIZE INVOLVEMENT” were written in another person’s handwriting. These are the exact words Schneir used at trial to explain his departure from his pretrial testimony.)

(Script, at R. P3370.)

And, in fact, the Assistant State Attorney later confirmed at a post-trial hearing that he learned of the changes in Schneir’s testimony the weekend before Schneir took the stand. The State failed to notify the defense that
Schneir’s testimony had changed until after Schneir began testifying, and, exactly what the State told the defense is all but certain, as the dissent suggests."

...

"In his pre-trial sworn statements and a pre-trial deposition, Schneir contended that the Defendants began stealing jet fuel from the Fuel Farm in June 2002. At trial, Schneir testified that the theft of jet fuel began much earlier, in January 2000. Schneir's trial testimony at least doubled or tripled the amount of fuel he claimed the Defendants stole from the fuel farm and dramatically increased the duration of the crime. Although the State was aware that Schneir’s testimony at trial would drastically vary from his pre-trial sworn statement and deposition, the State failed to notify disclose the Defendants until Schneir had taken the stand."

The opinion goes on to reason that although the testimony was not Brady or impeachment material, the State was obligated to produce it when it became aware, and failed to do so, resulting in prejudice to the defense.

The contrast is really quite fascinating.  In federal court, there is no chance to depose or obtain statements pretrial, the manner in which this would have unfolded would have been that at trial, the guy would have testified to the higher fuel amounts, and then the government would have (if they were acting in good faith) produced the earlier, different statements.  The case would have gone up and the 11th would have PCA affirmed the conviction.

Great work by the boys over at Carlton Fields!