Ethics

If you ask criminal defense lawyers what bothers them most about prosecutors' ethics, it won't be long before they mention production of Brady materials.  A California appellate court, in Barnett v. Superior Court has clarified the post-conviction standard for obtaining documentary discovery. Key passage:

Petitioner Lee Max Barnett is under a judgment of death. He filed in the superior court a motion for postconviction discovery under Penal Code section 1054.9 (section 1054.9). We granted review to decide important issues regarding that section. We reach the following conclusions:

(1) Because section 1054.9 provides only for specific discovery and not the proverbial "fishing expedition" for anything that might exist, defendants seeking discovery beyond recovering what the prosecution had provided to the defense before trial must show a reasonable basis to believe that specific requested materials actually exist. But they do not additionally have to show that they are material within the meaning of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny.

(2) Section 1054.9 does not govern materials in the possession of out-of-state law enforcement agencies that merely provided the prosecution with information or assistance under the circumstances of this case.