State v. Guerrera ( 2019 )

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STATE v. GUERRARA—CONCURRENCE
McDONALD, J., concurring. I fully agree with the
majority’s determination that the factual premise of the
argument of the defendant, Michael Anthony Guerrera,
that the 1552 locked audio recordings in the possession
of the Department of Correction were part of the state’s
investigatory file, is not supported by the record. I write
separately solely to address an argument asserted by
the state that would have been problematic had the
records been part of that investigatory file.
As the majority notes, one ground on which the state
and the department sought to quash the subpoena was
that compliance with it would place an unreasonable
burden on the department. The state represented that
the review necessary before the recordings could be
released to the defendant could take between 200 and
1000 hours, depending on the length of the calls. Any
such burden, however, is inconsequential in relation to
a defendant’s right to favorable evidence that could
potentially result in him avoiding years, not hours, of
imprisonment. As the majority notes, the state’s obliga-
tion under Brady1 does not vary depending on how
convenient or inconvenient it is for the state to comply
with its duty to provide exculpatory evidence to the
defendant.2 See footnote 16 of the majority opinion;
see, e.g., Emmett v. Ricketts, 397 F. Supp. 1025, 1043
(N.D. Ga. 1975) (stating, in context of ‘‘voluminous mass
of files, tapes and documentary evidence’’ in state’s
possession, that ‘‘the prosecutor retains the constitu-
tional obligation of initially screening the materials
before him and handing over to the defense those items
to which the defense is unquestionably entitled under
Brady’’). In my view, the state’s argument about how
unduly burdensome a review of 1552 recordings would
be rings particularly hollow in light of the case law that
addresses vastly greater numbers of records.
Finally, had the state limited its request to the depart-
ment to those time periods that were most likely to
produce relevant evidence, rather than making an
unlimited, open-ended request, any perceived burden
could have been greatly reduced without compromis-
ing the state’s investigation. If the state is concerned
about the burden of review, then it should tailor its
requests accordingly.
I therefore respectfully concur.
1
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2
In the age of electronic records, prosecution records can run into the
millions, yet the government is not relieved of its Brady obligations merely
because the records accumulated in its investigation are voluminous. See,
e.g., United States v. Warshak, 631 F.3d 266, 295 (6th Cir. 2010) (discussing
17 million pages of electronic evidence included in prosecutor’s file); United
States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009) (quantifying prosecutor’s
case file as ‘‘several hundred million pages of documents’’), aff’d in part
and vacated in part on other grounds, 561 U.S. 358, 130 S. Ct. 2896, 177 L.
Ed. 2d 619 (2010); United States v. W. R. Grace, 401 F. Supp. 2d 1069, 1080
(D. Mont. 2005) (referencing more than 3 million pages of discovery in
prosecution’s file).