If a cooperating codefendant tells the government that your client did not know that he was transporting drugs, does the government have a duty to turn that evidence over to you? Law students know the answer to this question: yes -- the evidence is plainly exculpatory and material, and it is in the sole possession of the government, so the government must turn it over under the unambiguous holding of Brady v. Maryland. Law students are a foolish lot, however, and they tend to listen to what the Supreme Court says rather than reading the ways that circuit courts put a "gloss" on Supreme Court opinions. For example, the Sixth Circuit created an exception where such information is "available from another source," such as a public document. That exception quickly expanded to include evidence that was "available" to a defendant, even if the defendant did not know of the evidence but had reason to know of it. As is often the case, this exception threatens to swallow the rule.
Not here though. Judge Merritt draws a line in the sand in today's must-read Tavera opinion. The opinion notes that "[t]his particular case is not close," and recommends "that the U.S. Attorney's office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue."
Perhaps most legally interesting is the way in which the opinion distinguishes the "available from another source" exception. The government alleged that it was Tavera's duty to interview his cooperating codefendant (or his codefendant's lawyer) and ask if he ever exculpated him. The problem with this theory is that the codefendant had later changed his story to the government and would now have to admit to lying to government officials in order to tell him what he said. Likewise, any defense attorney knows how hard it is to get access to a codefendant who is cooperating with the government.
The only remaining question is whether Judge Clay's dissent portends an en banc request from the government. What say you, commentariat?