For the Defense - Vol. 3, Issue 2 - 2018 - 14
Disappearing Giglio!
and other insights from United States v. Payano
A
A recent attempt by the Department of
Justice ("DOJ") to persuade a district court
to scrub from an opinion findings that a
state trooper engaged in racial profiling and
lied on the stand - for the express purpose of
avoiding future Giglio1 disclosures of the findings
- raises numerous questions, many of which are
beyond the scope of this article.2 But examining
what that case reveals about the government's
interpretation of Giglio provides insights that
defense counsel can use to maximize the chances
of getting complete disclosures.
United States v. Payano: the Giglio
Issues
Pennsylvania State Trooper Thomas Fleisher
testified at a suppression hearing that Pedro
Payano drew his suspicion for drug trafficking
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For The Defense
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Vol. 3, Issue 2
because Mr. Payano and his companion were not
wearing "suits or any kind of business attire"
when driving an older, two-door, car on the
highway at 9:30 a.m. on a weekday.3 The district
court (Surrick, J.) concluded that "the ethnicity of
Payano and [his companion] very likely figured
into Trooper Fleisher's motivation for the traffic
stop"4 and that Trooper Fleisher's rationale for
extending the stop was "simply not credible,"5
both because he invoked innocent conduct (like
not wearing business attire), and because he
"embellish[ed] and mischaracterize[ed] the traffic
stop" in his testimony.6
The government admitted that those findings
were Giglio material on which Trooper Fleisher
may be cross-examined were he to testify in
the future7 - and it expressly urged the court
to prevent that. Its goal was to protect the
Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
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For the Defense - Vol. 3, Issue 2 - 2018 - 14
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For the Defense - Vol. 3, Issue 2 - 2018 - 17
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