"When the court orders a Brady violation" by Ian Acker
Buckley Commentary & AnalysisIan Acker
What happens when prosecutors fail to make constitutionally required disclosures of evidence because the court ordered them not to? The U.S. Court of Appeals for the Sixth Circuit weighed in on this issue recently, vacating a cardiologist’s convictions for healthcare fraud and false statements because the trial court had ordered prosecutors to withhold a letter containing potentially exculpatory evidence despite the prosecutors’ desire to turn it over and even use the letter themselves. The Sixth Circuit made clear that a defendant’s Fifth Amendment due process rights under Brady v. Maryland – and prosecutors’ obligations to disclose evidence they think must be turned over under Brady – do not go away just because a trial court thinks the evidence should not be turned over for a non-Brady reason.
Trial Court orders withholding of potentially exculpatory information
Richard Paulus, a cardiologist at King’s Daughters Medical Center (KDMC) in Ashland, Kentucky was accused of performing medically unnecessary angiograms and billing Medicare for them, to the point of being “first in the nation for total amount billed to Medicare” for angiograms. Three of the government’s witnesses testified that a review of Paulus’ patient files found a nearly 50% error rate in his reviews of angiogram results, and that he performed (and billed for) unnecessary surgeries to insert stents based on those results.
A jury in the U.S. District Court for the Eastern District of Kentucky convicted Paulus in 2016 of one count of healthcare fraud and 10 counts of making false statements regarding healthcare matters. However, in 2017, the judge set aside the jury verdict and acquitted Paulus on grounds of insufficient evidence, and granted motion for a new trial. On appeal, the Sixth Circuit, in its first crack at the case in 2018, reinstated the convictions. Prior to sentencing on remand, the government disclosed to the defense for the first time that KDMC had sent a letter to the government that purported to contain an independent evaluation by KDMC consultants that found only 75 “problematic” cases of the 1,049 cases they reviewed. That 7% issue rate was vastly lower than the nearly 50% issue rate that the government’s experts found. The experts also had reviewed far fewer cases than the KDMC consultants, including some of which were apparently picked because they had been originally flagged by KDMC’s consultants as problematic.
After moving to compel disclosure of all information related to the letter, Paulus learned that the government had received the letter from KDMC before he was even indicted, and had originally planned to disclose the letter to him. KDMC had objected, though, arguing that the letter was privileged and inadmissible, leading to an ex parte hearing in front of the District Court. At the hearing, the judge asked for argument only on the issue of admissibility under Federal Rule of Evidence 408, regarding evidence of compromise offers and negotiations. The government argued that the letter was admissible, but also that regardless, the government was bound to disclose it under Brady. The judge ruled the letter was inadmissible and explicitly ordered that “the parties were not to disclose any more information about the KDMC Review” to Paulus (who first learned about the letter and the hearing years later).
Despite Paulus’ argument that this lack of disclosure violated Brady and warranted a new trial, the District Court sentenced him to five years in prison as well as restitution.
Sixth Circuit holds that government is bound by Brady even after trial court bars disclosure
On March 5, 2020, almost three years to the day after the District Court vacated Paulus’ original convictions, the Sixth Circuit vacated them for a second time, this time due to Brady violations that had been quite atypically ordered by a court and not attributable to the prosecutors.
Under Brady, as the Sixth Circuit explained, a defendant’s rights are violated where three conditions are met: “[(a)] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [(b)] that evidence must have been suppressed by the State, either willfully or inadvertently; [(c)] and prejudice must have ensued.” However, if the defendant “knew or should have known the essential facts” permitting use of the exculpatory information, there is no Brady violation.
In its analysis of Paulus’ Brady claims, the Sixth Circuit closely examined the third factor, whether Paulus was prejudiced by the nondisclosure. Prejudice requires that the withheld information be material, in that it would have had an effect on the outcome of the proceedings. The Sixth Circuit found that the details in the withheld letter were clearly material – the issue rate in the letter’s sample (7%) was much lower than that put forward by some of the government experts (nearly 50%), which could have refuted evidence of Paulus’ intent or been used to impeach the government’s experts.
The Sixth Circuit recognized the government’s belief that it was required to disclose the letter to Paulus under Brady and would have done so but for the District Court’s order. Regardless, the Sixth Circuit reiterated that “Brady is about the fairness of the trial” and regardless of intent or good or bad faith, the failure to disclose such material is a Fifth Amendment due process violation.
Implications and considerations
The uncommon facts of this case raise important considerations for both the government and the courts. Paulus makes clear, to whatever extent it was not already, that the constitutional obligations of Brady apply even if a lower court says disclosure is not warranted for another reason and avoids directly deciding the question of whether evidence is or is not Brady material.
The more interesting consideration is what the proper path would be, if any, for the prosecutors with the benefit of hindsight? The government here apparently fought to disclose the letter at the ex parte hearing. One option is to stay the course, accepting a trial court’s nondisclosure order under clear protest, but abiding by the court’s order. The DOJ’s Justice Manual for federal prosecutors makes clear that, when faced with ambiguity about disclosure of certain evidence. prosecutors are encouraged to provide it to the defendant or ask the court for guidance, which the prosecutors did in Paulus.
The government also could have appealed the District Court’s nondisclosure order. The Sixth Circuit emphasized in its decision that the idea that inadmissible evidence cannot be Brady material is “flatly wrong.” There may have been strong grounds for appeal had the government chosen to do so. Regardless of the appropriate path, however, Paulus should be a strong reminder that if prosecutors believe something qualifies as Brady material, the disclosure obligation does not go away unless or until a court directly rules on the Brady question.