Open Letter From Satz’s Felony Chief: Finkelstein Is Wrong
Dear Buddy,
Recent posts to the Broward Beat have been critical of our office regarding the “Brady notifications.
Remarks by the Public Defender (Howard Finkelstein) are inflammatory, as well as factually and legally incorrect. We feel that it is time to address this rhetoric, distinguish fact from fiction, and discuss what the law requires.
Specifically, certain remarks by the Public Defender have factually mischaracterized actions by our office, and have inaccurately stated the law as it pertains to the State’s obligations under “Brady in providing favorable information to the defense. Any suggestion that the names of police officers under investigation were ever deliberately withheld from the defense by our office is absurd.
THE LAW
The fundamental duty to disclose “favorable evidence requires the State to provide each person accused of a crime, with any material information that would aid their defense.
First and foremost, this duty requires disclosure of all information that is “exculpatory, or suggests the accused did not commit the crime. None of the information referred to by the Public Defender involves the failure to provide such evidence. To be succinct, none of the information or lack thereof is, or was, “exculpatory in any sense of the word.
The second form of “favorable evidence that the State is under a duty to disclose involves information that can “impeach or undermine any witness called to testify. If that witness is a police officer, the existence of an ongoing investigation or certain forms of misconduct can be considered “favorable evidence and can be used to challenge the officer’s credibility.
Not all evidence of this type is considered “favorable to the defense under the law, such as to constitute legal “impeachment of an officer’s credibility. The prosecutor’s duty to provide this “impeachment information depends largely on the role of the officer in the specific case.
THE FACTS
For many years the State Attorney’s Office has had a computer program that notifies our prosecutors when our office has opened an investigation to review the action or conduct of that police officer in another, unrelated case. A prosecutor may or may not be obligated to disclose this potential impeachment information.
For example, if an officer’s role in a case was minor, such as merely patrolling the perimeter of a crime scene, the officer may not be called to testify at trial. If the officer’s role or actions in the case were “material to the case as defined by the law, prosecutors would send a notice to the appropriate defense attorney informing them that the police officer was under investigation in an unrelated case.
Individual prosecutors were responsible for determining whether a police office in their case, was under investigation by our office, and then sending out a notice.
SAO IS WORKING TO IMPROVE
In the past few weeks, the State Attorney’s Office has instituted additional procedures to make sure notices go out in all cases in which a police officer listed as a witness, is under some form of investigation by our office.
In an abundance of caution, many notices have recently been sent out to the defense, even when we do not believe they are required under the law. Given the volume of cases our office processes each day, we of course recognize the potential for error in individual cases.
As always, we remain ready to assist in remedying any such problems if they occur. The Public Defender  or certainly his assistants, who regularly handle cases  is well aware that the names of police officers under investigation by our office has been disclosed in the past by the State Attorney’s Office.
Any assertion of a conspiracy by our office to withhold names of police officers who may possibly be impeached by conduct in an unrelated case, especially by someone who is personally familiar with the criminal justice system, is merely disingenuous rhetoric. That rhetoric is disrespectful to each and every one of the dedicated public servants who work in our office.
Thank you for the opportunity to reply.
Jeff Marcus
Chief of Felonies
Broward State Attorney’s Office
(Buddy’s Note: The subheads in red are mine, as is the headline. I also “aired out” the paragraphs, breaking them up to make them more readible on the Internet. Marcus wrote this note as a comment to an article quoting Finkelstein that I posted last week. I thought Marcus’ views deserved more attention.)
October 26th, 2009 at 3:59 pm
I go up against the SOA daily and despite that I’ve got to say that Marcus’ thoughts make sense. Howard, spend more time defending and less time playing politics.
October 26th, 2009 at 4:20 pm
Buddy,
Why doesn’t Satz stand up for his own group? Is he afraid to go on the record with anything? Is he even (admittedly) aware that Marcus made this comment in an informal medium? I think that Marcus sounds a bit too defensive on behalf of a group which is supposedly doing their job correctly and above board.
I don’t care about the idea of conspiracy here as much as I do transparency. I do not get a sense that Marcus is acting on behalf of those who are vulnerable…I believe that he is doing damage control for the perpetually broken SAO. Does he think they earned this misconstrued reputation in the last couple of years? Please.
It simply does not pass the sniff test. I lean to the story told by “Help Me Howard” instead of this. What is Howard’s motive? What is his pot of gold? This is a SAO inefficiency story at very least and a conspiracy to protect ineffective government at best. But it is not rhetoric. I know crap when I smell it.
October 26th, 2009 at 5:46 pm
Somebody needs to tell the good Mr. Marcus that there is too much legal mumbo jumbo in his brief for the court of public opinion.
Satz should have had somebody who can talk to the general public answer…
October 26th, 2009 at 6:48 pm
Jeff Marcus is only trying to cover up for Mike Satz’s years of failures. There should be term limits for all offices, including state attorney.
October 27th, 2009 at 4:32 am
After many years in charge of the SOA, Mike Satz’s administration needs to be revamped. If Howard’s inflammatory diatribe forces Satz to reconstitute his operations, ensuring a fair trial for defendants and victims, then Howard accomplished something.
October 27th, 2009 at 4:59 am
The law requires the Prosecutor to provide the defense with all evidence that “might†help his case. It’s known as “Brady†and/or “Giglio†material
The problem is that the Prosecutor decides what “might†help the defense and what does not.
It’s like saying that the pitcher gets to call the balls and strikes. Unfortunately, for every Christie Mathewson there is going to be an Eddie Cicotte.
Baseball’s solution is the umpire.
The law’s solution is “The Privilege Log†and the Judge.
When a lawyer has material that she “might†have to turn over to the other side she advises the judge who, without showing the material to the other side, decides if it is to be produced. If the debate continues it is put in a sealed envelope and preserved for the appellate court to review.
A lawyer who conceals material from a Privilege Log risks sanctions from the court and the BAR. There is no excuse for failing to list something in a “Privilege Logâ€.
Until recently I thought the Privilege Log was only used in civil cases. Dave Bogenschutz, who better, advised me otherwise. He said that he has used the Privilege Log to dispute subpoenas from Grand Juries.
For a thousand years the Anglo-American judicial system has been an adversarial system. Thus any trial lawyer worth his salt is a highly competitive person. You don’t have to be dishonest to see things in a light most advantageous to your side.
The Court, and not the lawyers, should be calling the balls and strikes on Brady and Giglio material.
October 27th, 2009 at 5:30 am
Blue Man makes the exact point that I have been bringing up before. There are some legal arguments that the general public is just not going to be able to understand. But when someone raises a legal question, it is absolutely appropriate to respond in a legal manner.
The “spin” that has been put on this issue by Howard and Buddy alike is that Satz is somehow not coming clean with the information he should be giving over to defense attorneys. However, there appears to be a strong argument that the Prosecutors have been acting appropriately within the law.
Sam Fields offers another opinion about how that process should be handled. It is an interesting idea worthy of consideration. But that is not the way the law exists today.
When one politician (Finkelstein) raises a concern about another (Satz) that is legal in nature, and the public reacts to the response with comments like “that’s too legal a response” you know we’re in trouble as a society.
February 29th, 2012 at 10:26 am
Quit splitting hairs..The Brady List is an indicator of something gone wrong. Poor management, cronism, Disney world antics and a myriad of other analogies. What ever it is..Broward citizens officially have more to fear from their own cops than any bad guy. Now I realize for you “legal eagles” that could enhance your ability to buy a vacation home but for the rest of us..housecleaning is in order with Law Enforcement.