New York Federal Criminal Practice Blog
November 29, 2007

SDNY Judge Grants Pretrial In Camera Review of Potential Brady Material as a Matter of "Sound Case Management"

That the government is only required to disclose "material" information favorable to the accused often puts the fox in charge of the henhouse when it comes to complying with Brady obligations.  After all, what is material to a defense lawyer can all too easily be dismissed by a prosecutor as tangential and speculative.  A recent SDNY decision, United States v. Nogbou, 07 CR 814 (JFK), 2007 WL 4165683 (S.D.N.Y. November 19, 2007), adds a handy weapon to the defense's arsenal on this issue. In Nogbou, the court granted a pretrial in camera review of potential Brady material so as to avoid the possibility of a mid-trial delay or a post-conviction reversal because of a late Brady disclosure/discovery.  The case is an important precedent for the proposition that the government may not always be the appropriate party to determine Brady materiality.  

Nogbou was charged with assaulting a federal officer following an altercation at the security checkpoint of the SDNY courthouse.  He moved to inspect, or have the court inspect in camera, any portions of the officer's personnel file relating to prior allegations of abuse or aggression.  The government responded that the motion was premature and tantamount to unprecedented "open-file discovery."  Acknowledging that the Second Circuit does not mandate immediate disclosure of exculpatory and impeachment material upon the defendant's request, the court nonetheless pointed out that it could order early disclosure as a matter of "sound case management," quoting Judge Kaplan in United States v. Stein, 424 F.Supp.2d 720 (S.D.N.Y. 2006).  Here, "sound case management" counseled in favor of ordering an in camera review of the personnel file, particularly where "it is impossible to determine, in advance of trial, whether the evidence requested by Nogbou will be sufficiently material to fall within the ambit of Brady."

What is especially interesting here is that the court did not order the government to review the file and immediately turn over "material" items to the defense.  Rather, "in an excess of caution," the court would undertake its own in camera review, thus inserting a more independent perspective on the materiality question.  As the court pointed out:  "It is debatable whether the Government would determine that evidence of [the officer's] prior use of excessive force was sufficiently material within the meaning of Brady to warrant disclosure, even though the failure to disclose such evidence could be deemed, retrospectively, to constitute a Brady violation."

This holding is a useful precedent both for early disclosure of Brady material (but see also the recent Second Circuit decision of United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007), discussed here), and also in camera review of specific files or documents for Brady materiality determinations.

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