For the Defense - Vol. 3, Issue 2 - 2018 - 18

assert that they err on the side of disclosure,
the government's failure to disclose the Purcell
Complaint in Payano suggests otherwise.

Putting the Lessons Into Practice
While the government's Brady and Giglio
obligations unquestionably attach without defense
demand,26 careful defense counsel will make a
record not only of the demand but of counsel's
understanding of the scope of the government's
obligations. Consider asking the prosecutor to
agree that, for example, Giglio applies to adverse
findings that are not reflected in a written
opinion. Insist upon unpacking - in writing - the
conclusory "we understand and will comply." You
may persuade a conscientious prosecutor that her
"understanding" is unduly narrow; you may find
a disagreement that you will raise in a motion;
or you may be convinced that the government's
disclosure is complete. Either way, your client will
benefit.

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1. Giglio v. United States, 405 U.S. 150 (1972). Giglio
held that the prosecution's obligation to disclose
material that is favorable to the defense, under Brady v.
Maryland, 373 U.S. 83 (1963), extends to the disclosure
of "evidence affecting [the] credibility" of prosecution
witnesses. Giglio, 405 U.S. at 154.
2. The author of this article wrote an amicus brief opposing
the government's request, for the ACLU of Pennsylvania
and the National Association of Criminal Defense
Lawyers (of which PACDL is an affiliate). She thanks
PACDL amicus committee member Peter Goldberger for
his invaluable collaboration during that process.
In addition to the Giglio issue addressed here, the amicus
brief addresses the public interest in transparency about
police misconduct and the threat that hiding misconduct
presents to the due administration of justice. As the
brief concludes:
The Department of Justice's response to the Court's
analysis is precisely backward. Rather than commit
to rooting out racial bias in law enforcement, it
asks the Court to conceal it. Rather than disavow
reliance on law enforcement officers who are less
than scrupulously truthful, it asks the Court to protect
one. Rather than support the law enforcement
community's efforts to discipline officers who violate
their oath to support and defend our Constitution, it
asks the Court to ensure that this officer remain on
the force, and in the courts. Rather than affirm its
commitment to seeking justice rather than obtaining
convictions, it asks the Court to facilitate future due
process violations. And rather than acknowledge
the salutary effect of daylight on the criminal justice
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system, it asks the Court to shroud its findings in
darkness - in derogation of the First Amendment and
the public interest.
The district court denied the government's motion,
so the opinion naming the officer and describing his
misconduct stands. See Mem. Op. of Sept. 26, 2017,
United States v. Payano, Crim. No. 17-238-RBS (Doc. 37).
The amicus brief is available here: https://www.aclupa.
org/ files/2915/1387/9797/Payano_-_Brief_of_Amici_
ACLU_and_NACDL_12-21-17.pdf.
Mem. Op. in Payano, supra n.3, at 3. Peter Goldberger's
request to the PACDL listserv for other cases involving
Trooper Fleisher yielded a Chester County Court of
Common Pleas opinion pointedly disregarding Fleisher's
(apparently-habitual) reliance on the "lack of business
attire on a weekday" rationale, calling the use of casual
clothing "a completely innocuous circumstance." That
court upheld the stop on other grounds. See Mem. Op.
of Aug. 22, 2017 in Commonwealth v. Vidro, Crim. No.
16-3412 (Chester Co. C.C.P.), at 19 n.4.
Mem. Op. in Payano, supra n.2, at 11.
Id. at 1.
Id. at 15.
Gov. Motion for Reconsideration, United States v.
Payano, Crim. No. 17-238-RBS (Doc. 52), at 9 ("With this
impeachment material in hand, attorneys in any case
in which Trooper Fleisher would testify will exploit the
negative credibility findings to brand this veteran State
Trooper a liar who is not worthy of belief and whose
motivations are presumed to be based on race.").
Id. at 2.
Id. ("issue a new Memorandum without [] statements"

Click here to view and/or print the
full notes section for this article.

About the Author
Lisa A. Mathewson
is the principal in The
Law Offices of Lisa
A. Mathewson, LLC
(www.mathewson-law.
com), in Philadelphia.
She is currently a
Third Circuit chair
of NACDL's Amicus
Committee, and vice
chair of its White Collar Crime Committee.
She thanks Meredith A. Lowry, Esquire, who
recently joined her firm as an associate, for
her research assistance on this article.

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