Too many documents - a Brady violation?
On January 6, 2009, the Fifth Circuit rendered its opinion affirming the conviction of Jeffrey K. Skilling in the Enron financial fraud. United States v. Skilling, No. 06-20885. One of the issues raised by Skilling on the appeal was an alleged Brady violation. Skilling argued the government failed to disclose exculpatory information and its use of an open file containing “several hundred million pages of documents” violated Brady. The open file “resulted in the effective concealment of a huge quantity of exculpatory evidence.” Skilling alleged the open file was too vast and he was unable to review all of the documents. As a result, the government, he argued, had suppressed evidence by not informing him specifically of any exculpatory documents.
The court of appeals held that there was no Brady violation. The Fifth Circuit explained that under Brady the government is not obligated to direct a defendant to exculpatory information contained in a “mass of disclosed evidence.” See United States v. Mulderig, 120 F.3d 535, 541 (5th Cir. 1997); United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997) ([T]here is no authority for the proposition that the government’s Brady obligations require it to point the defense to specific documents within a larger mass of material that is already turned over.”), overruled in part on other grounds by United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004). A voluminous open file can only violate Brady if the government purposefully pads it with erroneous information “to frustrate a defendant’s review of the file” because the government cannot hide Brady material of which it is aware in an open file with the hopes a defendant will never find it.
In this case, the court reasoned there was no Brady violation because the open file was electronic and searchable. The government provided Skilling with a listing of documents labeled “Hot Documents.” Additionally, the government provided indices to other documents that may have been relevant to Skilling’s defense. Finally, both parties had equal access to the open file.
(With appreciation to Rochelle D. Laws, Esq. for contributing this entry)
