The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
MEMORANDUM OPINION ON MOTION TO COMPEL DISCOVERY
Defendants Mark Pray, Kenneth Benbow, and Alonzo Marlow*fn1
have been indicted by a Grand Jury, along with co-defendants
who are not parties to the instant motion to compel, on narcotics
charges, murder charges in aid of racketeering, maintaining a
continuing criminal enterprise, and operating a Racketeer Influenced
and Corrupt Organization (RICO), in violation of federal and local
criminal statutes. Because of the nature of the charges, each is
potentially eligible for the death penalty and is facing the death
penalty authorization process at the Department of Justice ("DOJ").
The United States Attorney has not yet made any recommendation
regarding seeking the death penalty and the Attorney General has not
yet made any decision. Messrs. Pray, Benbow, and Marlow jointly move
to compel pre-authorization disclosure of certain exculpatory evidence
- in sufficient time for them to use it before DOJ to argue against
the prosecutor's seeking the death penalty in this case. As a result
of further disclosures by the government since the motion was filed,
the Defendants now limit their motion, seeking only "disclosure of
individuals who are
equally culpable in the charged murders but will not face the death
penalty" and disclosure of "a summary of issues which impair
[government] witnesses' credibility." Defs.' Reply [Dkt. # 127] at 1,
The Court recognizes the grave situation in which Defendants find themselves and that the information they seek could possibly help them make mitigating arguments against authorization of the death penalty. However much these circumstances might counsel such an order in a different case, a point the Court does not reach, no such order is appropriate in this one. Defendants Pray and Alonzo are charged, inter alia, with the murder of Crystal Washington in order to prevent her from testifying against Mr. Pray. The possibility of violent action against a potential witness - cooperator or not - cannot be ignored. The Court finds the risks to the lives of others too real to be overcome by Defendants' request. The motion to compel will be denied.
The Defendants are charged in a Superseding Indictment with murders in aid of racketeering, i.e., death-eligible offenses: Counts Four and Five allege that on September 24, 2008, Mr. Pray and Mr. Benbow murdered Van Johnson, Jr., and attempted to murder Steven Robinson; Count Six alleges that on April 10, 2009, Mr. Pray and Mr. Marlow murdered Crystal Washington; and Count Eight alleges that on January 13, 2010, Mr. Pray and Mr. Marlow murdered Jheryl Hodge. See Superseding Indictment, Counts 4-6 & 8, at 37--40.
The government is in the midst of considering whether to seek the death penalty against one or more of these Defendants. That process is commonly referred to as the Death Penalty Protocol in the U.S. Attorney's Manual ("USAM"). Under the Protocol, the United States Attorney for the District of Columbia will submit a recommendation to the Assistant Attorney General for the Criminal Division, after giving counsel for each Defendant "a reasonable opportunity to present any facts, including any mitigating factors, for the consideration of the United States Attorney." USAM § 9-10.050. Any materials from defense counsel will be forwarded to DOJ with the U.S. Attorney's submission. Within DOJ, the Attorney General's Review Committee on Capital Cases will review the submission and, if either the United States Attorney recommends seeking a death sentence or a member of the Capital Review Committee requests a conference, defense counsel will be provided an opportunity "to present evidence and argument in mitigation." USAM § 9-10.120. The Capital Review Committee will make a recommendation to the Deputy Attorney General, and the Deputy Attorney General then will make a recommendation to the Attorney General. Id. The Attorney General alone will decide whether to seek the death penalty. Id.
Pursuant to the Protocol, counsel for Mr. Pray and Mr. Benbow made presentations to the United States Attorney for the District of Columbia on January 31, 2011. Mr. Marlow's presentation is currently scheduled for February 28, 2011. Prior to those meetings, the government had produced substantial amounts of discovery to the Defendants:
First, the United States has made seven (7) separate productions of discovery in this case. These productions have included approximately 13,800 pages' worth of the court documents relating to Title III and search warrant authorizations, investigative case files, historical arrests, telephone records, surveillance and crime scene reports and photographs, and specific discovery relating to each of the three murders charged in the superseding indictment, including autopsy reports, crime scene reports, and crime scene photographs. The discovery also includes the line sheets and audio recordings from the extensive Title III surveillance in this case, and 51 discs containing all consensually-recorded telephone calls, undercover videos of controlled purchases of narcotics, and video surveillance by law enforcement agents. The discovery has been produced electronically and in an organized fashion, with a detailed index, to facilitate counsel's review of the material.
Second, the government, on or about December 23, 2010, prepared a separate written response to a defense letter seeking twenty-three (23) separate categories or types of "discovery materials or information relevant to the government's determination as to whether to seek the death penalty." . . .
Finally, on or about January 14, 2011, the government sent all defense
counsel a ten-page letter containing summaries of witness statements
and other information favorable to the defense. . . . The disclosures
set forth in this letter include discrepancies in eyewitness accounts,
varying descriptions of perpetrators, information that others may have
committed the offenses, and other information which may undercut the
government's theory at trial. These disclosures, which represent the
universe of non-impeachment Brady*fn3 material
respecting the charged murders presently in the government's
possession were made over ten months before the "Group 1"*fn4
trial date of October 31, 2011, and before any trial date has
been set for the death-eligible defendants.
Gov't Opp'n [Dkt. # 125] at 4--5.
Both sides to this dispute agree that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87. Brady requires the disclosure of exculpatory evidence that is material to a defense or punishment. Giglio v. United States, 405 U.S. 150 (1972), extends Brady, requiring the disclosure of material impeachment evidence. Some courts have held that "in a death penalty prosecution, the Brady obligation requires the Government to disclose material information that exculpates the defendant of the crime and that would be material to the defendant's presentation of factors mitigating against a sentence of death." United States v. Frank, 11 F. Supp. 2d 322, 327 (S.D.N.Y. 1998).
The immediate disagreement arises because Defendants want specific information now, while the government argues that their request is premature and that defense rights to information under Brady are tied to trial, not the Protocol. See Gov't Opp'n at 7 ("Brady and its progeny delineate the accused's right to the disclosure of evidence favorable to guilt or punishment. This constitutional principle, however, is a trial right."). The government also expresses grave concerns for the safety of its witnesses. Defendants acknowledge this risk. Defs.' Mot. to ...