Close to trial, U.S. Prosecutors reveal having exculpatory evidence that could help Chapo

By Chivis Martinez for Borderland Beat

“The ultimate aim of our criminal justice system is not only to secure convictions, but also to ensure  that the rights of the accused are protected. Two days ago, the government disclosed that it possesses evidence that can mitigate Mr. Guzmán’s role in the charged offenses or possibly exonerate him. The fact the the government is disclosing this evidences so close to trial shows that it is interested in obtaining a conviction at all costs - Mr. Guzmán’s rights be damned. All Mr. Guzmán asks for is a fair trial and the ability to defend himself as any other defendant.” [Eduardo Balarezo]

Prosecutors in the Joaquín “El Chapo” Guzmán trial have just revealed on Monday that they have in their possession an abundance of ‘Brady’ material.  Brady evidence is exculpatory evidence, favorable to a defendant.  It could potentially exonerate a defendant.  Or result in a reduced a sentence.

There are 41 separate items of exculpatory evidence.

And they have had this evidence before Guzmán’s extradition.  

Guzmán’s  attorney begins his letter regarding the disclosed information from the prosecution as follows;

“I write in response to your five-page letter dated June 4, 2018, wherein you disclose, “out of an abundance of caution,” forty-one (41) separate items of exculpatory information pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). You also disclosed alleged statements by Mr. Guzmán. The exculpatory information, if credited by a jury, either mitigates Mr. Guzmán’s role in the alleged conspiracies, defeats the allegations of a so-called “Federation” or outright exonerates Mr. Guzmán.”

What is Brady Evidence?

Brady v. Maryland, known as “The Brady Rule” stemmed from a Maryland murder case.  John Leo Brady was convicted.  He ultimately appeals the conviction and sentencing which worked itself up to the U.S. Supreme Court, Brady’s hope was a new trial.

The Supreme Court held decision determined that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment." Although in the Brady case, the court determined that under Maryland law, the withheld evidence could not have exculpated [exonerate] the defendant but it was material that was relevant to his level of punishment.  Therefore Brady did not receive a new trial, but was successful in receiving would receive a new sentencing hearing.

In the case, Brady had contended that although he was with the suspect at the time of the killing, he had no prior knowledge of the murder and was not the killer.  The prosecution withheld a document in which the second suspect in the case had confessed he alone was responsible for the killing. Brady received a reduced sentence, was eventually paroled and led a crime free life.

Prosecutors are required to disclose materially exculpatory evidence in the government's possession to the defense. "Brady material" or evidence,  the prosecutor is required to disclose under this rule includes any evidence favorable to the defendant., evidence that goes towards negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness. Which I am guessing this may be at least in part evidence going to the credibility of witnesses.

I have followed this case closely, as well as reading all documents filed with the court.  What is particularly troubling, is remembering the multiple times, Eduardo Balarezo, Guzmán’s attorney,  has requested evidence.   It appears grossly unfair, and unnecessary in any fair trial, to await 3 months or less to receive potentially the most important information benefiting the defendant,  for the defense to peruse and work.   On its face, it appears that the challenge is insuperable.

As for the witness list, it has not yet been provided.  However,  most people who follow Mexican Organized crime can look at the list of characters already arrested and given sweet deals to testify in cases, and figure out who will be on the list.  A list of mass murders, major traffickers, sicario chiefs (hitmen) kidnappers, extortionist etc.  Without solid direct evidence, a reasonable person could rely on based on their testimony alone.  In the case of The Flores twins, there is a cache of direct evidence.  So one can be assured one or both will testify.

Other explanations of potential violations that may be helpful as you read Chapo’s attorney’s letter to the prosecution; Giglio v. United States, is a United States Supreme Court case in which the Court held that the prosecution's failure to inform the jury that a witness had been promised not to be prosecuted in exchange for his testimony was a failure to present all material evidence to the jury.

Jencks Act Material, 

which is evidence that is used in the course of a federal criminal prosecution in the United States. It pertains to evidence relied on by government witnesses who testify at trial. The material is described as inculpatory, favoring the United States government's prosecution of a criminal defendant.

Miranda Rule

From the Miranda vs Arizona case, which applies to police interrogations of person who have been taken into custody.   A Miranda rights warning must be cited or potentially all information, including confessions could be deemed inadmissible.

The following is the standard Miranda warning: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning.

Response Letter

   El Chapo case: Prosecution reveal it has 41 doc of exculpatory information, defense response by Chivis Martinez on Scribd