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New York Criminal Defense Attorney, Steven Brill, asks: "Do Prosecutor's Take Their "Brady" Obligation Seriously?"

Posted By Steve Gorney || 22-Apr-2012

In yet another case where a prosecutor sat on exculpatory evidence, Darrell Dula spent 10 months behind bars when a Brooklyn DA failed to turn over evidence that an alleged sex trafficking victim recanted her accusation. Here, an orthodox woman from crown heights accused four black males of Rape in the First Degree and Sex Trafficking. As a result, all four were arrested and held in on bail. Now, almost a year later it has been discovered that the alleged victim recanted her story about the rape and stated “can’t a ho change her ways?”

Despite this recantation, the Brooklyn DA’s office failed to disclose it to Mr. Dula’s attorney. “This is a fundamental Brady issue,” says Steven Brill, a well-respected criminal defense attorney in New York. “The Supreme Court in Brady held that withholding exculpatory evidence violates due process where the evidence is material either to guilt or to punishment.,” says Brill. “For one who has been arrested and charged with a crime in New York, it may be the one of the most important cases involving due process,” adds Brill.

It may be important to a criminal defendant, but apparently, not so important to some Brooklyn District Attorneys. Take the case of Abbie Greenberger. Ms. Greenberger said she was handed the case in September 2011 — three months after Darrell Dula, 25, was indicted for being a part of a crew that of raped, beat and pimped out the alleged victim. Greenberger said she found inconsistencies in the 22-year-old accuser’s account, but couldn’t convince her boss there was a problem. Ms. Greenberger told the Daily News that “When I brought the inconsistencies to the chief of the sex-trafficking unit at the Brooklyn District Attorney’s Office, I was told that I didn’t do my job right and that I’m trying to dismiss the case and that I should work harder,”

Surprisingly, the Dula case is not the exception. Mr. Brill has noted another significant case where prosecutor’s offices has “hidden the ball,” as Brill says. “Recently, a decision by the US Supreme Court overturned the conviction of Juan Smith, convicted of five murders, because the New Orleans’ District Attorney failed to turn over notes recounting a conversation between detectives and an alleged eyewitness where the witness told a detective that he could not identify the perpetrators. Chief Justice Roberts wrote the opinion finding the conviction must be overturned because the undisclosed evidence was material under standards set by Brady.”

Whether it is a New York Criminal case or a Federal Criminal case, the requirements under Brady are clear. Nevertheless, Mr. Brill, who practices both New York criminal law and Federal criminal law says there are more and more cases where prosecutors do not comply. “There is great pressure to get convictions,” says Brill. Perhaps, Ms. Greenberger agrees. When Ms. Greenberger approached her chief, the head of the sex trafficking bureau, about the recantation and inconsistencies, she recalls being told “I guess we have to take the case to trial.”