People v. Marshall

¶1I dissent.

¶2It is plain that the superior court erred when it denied defendant’s motion for discovery of Gary Brady’s file with the Department of Corrections. Brady had just testified that defendant had confessed to the three murders with which he was charged. The superior court wrongly treated the information in Brady’s correctional file as though it was shielded by an absolute privilege under California law—even while it declined to review or even obtain its contents. Any such privilege, however, would have been required to yield, for example, to defendant’s right under the due process clause of the Fourteenth Amendment to the United States Constitution to disclosure by the state of any information that was favorable to his position and material to guilt or punishment (e.g., United States v. Bagley (1985) 473 U.S. 667, 674 [87 L.Ed.2d 481, 488-489, 105 S.Ct. 3375]), including such information as could be used to impeach Brady (id. at p. 676 [87 L.Ed.2d at p. 490]).

¶3What is not plain, however, is whether the superior court’s error is reversible. We can readily conjecture that it was prejudicial. Brady was *881surely a crucial witness. With his testimony at this trial, the People obtained convictions and a sentence of death. Without his testimony at the original trial, defendant had secured a hung jury, with seven of the twelve members voting in favor of acquittal. Nevertheless, we cannot determine the question of prejudice on any principled basis. It is correct to assert, as do the majority, that defendant cannot demonstrate harm. But it is also right to state that the People cannot show the opposite. The reason is this: there is no ground on which either can do otherwise. Because the superior court made no effort to obtain Brady’s correctional file, we do not have it in the record on appeal. As a result, we cannot know what information, if any, should have been disclosed or whether it would have had any effect on the outcome. In spite of our lack of knowledge, the error could perhaps be deemed not reversible if we could conclude that Brady was so thoroughly impeached that his testimony was rendered devoid of any weight whatever. We cannot so conclude. Brady was attacked. But his testimony was not destroyed. Therefore, in the face of our lack of knowledge—for which defendant, it must be emphasized, is not to blame—I believe that the only disposition that we can reasonably order is to vacate the judgment and remand the cause to the superior court with directions to conduct further proceedings as required on the discovery motion.1

¶4Appellant’s petition for a rehearing was denied October 2,1996. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.