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Alan S.

Lewis
CARTER LEDYARD & MILBURN LLP
2 Wall Street
New York, New York 10005
(212) 732-3200
Attorneys for L. Dennis Kozlowski

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
L. DENNIS KOZLOWSKI, :
:
Petitioner, :
:
-against- : No._________
:
WILLIAM HULIHAN, Superintendent, Midstate :
Correctional Facility, and ANDREW CUOMO, :
Attorney General of the State of New York, :
:
Respondents. :
:
-------------------------------------------------------------X

MEMORANDUM OF LAW
IN SUPPORT OF PETITION FOR
WRIT OF HABEAS CORPUS
ON BEHALF OF L. DENNIS KOZLOWSKI

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TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT ............................................................................... 1


QUESTION PRESENTED ........................................................................................ 4
SUMMARY OF ARGUMENT ................................................................................. 4
STATEMENT OF FACTS ...................................................................................... 10
The Investigation ................................................................................................ 10
The Indictment .................................................................................................... 15
The First Trial ..................................................................................................... 15
Defendants’ Subpoena for Impeachment Materials and Tyco’s Motion to
Quash the Subpoena ...................................................................................... 16
The Trial Court’s Decision to Quash the Subpoena ........................................... 23
The Second Trial ................................................................................................. 27
The Appellate Division Decision........................................................................ 27
The Appeal to New York’s Highest Court ......................................................... 28
The New York Court of Appeals’ Decision ....................................................... 30
The Motion to Reargue ....................................................................................... 35
The Petition for Certiorari................................................................................... 36
POINT I
MR. KOZLOWSKI’S CONSTITUTIONAL RIGHT TO PRESENT A
DEFENSE WAS VIOLATED WHEN THE TRIAL COURT QUASHED
HIS SUBPOENA FOR THE EARLIEST RECORDED STATEMENTS OF
PROSECUTION WITNESSES ............................................................................... 37
A. The Subpoena Sought Specifically Identified Evidence That Was
Likely to Be of Significant Impeachment Value to the Defense................... 39
B. In Light of the New York Court of Appeals’ Finding That the
Materials Sought Were Potentially Exculpatory (and Therefore of
Constitutional Dimension), Its Decision to Sustain the Quashing of the
Subpoena Based on an Expansive Construction of a Civil Procedure
Discovery Statute Violated Mr. Kozlowski’s Constitutional Rights ............ 41

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C. Under the Plain Terms of New York’s Statute Governing Access to
Litigation Materials, Petitioner Was Entitled to Obtain the
Subpoenaed Documents ................................................................................ 49
1. Petitioner Met the “Substantial Need” Test, as the Court of
Appeals Implicitly Found ......................................................................... 50
2. Petitioner Demonstrated His Inability to Obtain the “Substantial
Equivalent” of the Subpoenaed Statements ............................................. 51
a. Prior Inconsistent Statements Are Unique, Not Replicable ................ 52
b. The Prior Inconsistent Statements Sought by Defendants Were
Unique for a Second, Case-Specific Reason: They Were
Recorded During a “Window in Time” That Had Closed by the
Time Defendants Were Charged ......................................................... 55
c. By Finding Only a Past-tense Failure to Obtain the Substantial
Equivalent of the Subpoenaed Statements, New York’s Courts
Implicitly Found That Defendants Met the Present-Tense
Temporal Requirement of the Statute ................................................. 57
D. The Trial Court Did Not Have Discretion to Quash the Subpoena............... 60
E. Quashing the Subpoena Violated Petitioners’ Constitutional Rights............ 62
1. By Conditioning Petitioner’s Right to Access Exculpatory
Materials on a Requirement That was Arbitrary and Served No
Legitimate State Interest, New York’s Courts Violated Petitioner’s
Right to Present a Defense ....................................................................... 63
F. The Error Was Not Harmless ........................................................................ 70
G. The Appropriate Remedy is to Grant the Writ of Habeas Corpus. ............... 78
POINT II
NO ADEQUATE AND INDEPENDENT STATE-LAW GROUND
FORECLOSES HABEAS REVIEW OF PETITIONER’S CLAIMS..................... 85
A. The Court of Appeals Did Not Make a Plain Statement That Petitioner’s
Constitutional Claims Were Procedurally Defaulted .................................... 86
B. Procedural Default is Not an Adequate State Ground on Which to
Preclude Federal Review of Petitioner’s Constitutional Claims in This
Case................................................................................................................ 92
1. The Trial Court’s Decision to Quash Necessarily Rested on its
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Conclusion that Defendants’ Interest in the Subpoenaed Materials
was Not of Constitutional Magnitude and Therefore, Defendants’
Perfect Compliance with the State Procedural Rule, e.g., Explicit
Reference to the Constitution When Objecting to the Trial Court
Ruling, Could Not Have Altered the Trial Court’s Decision ................... 93
2. The Asserted State Ground Was Not Firmly Established. ....................... 96
3. Given the Realities of Trial, Defendants Substantially Complied
with the Procedural Requirement ............................................................. 99
CONCLUSION ...................................................................................................... 104

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TABLE OF AUTHORITIES

FEDERAL CASES
Page

Alderman v. United States, 394 U.S. 165 (1969) ...................................................... 45

Arizona v. Evans, 514 U.S. 1 (1995) ......................................................................... 86

Barr v. City of Columbia, 378 U.S. 146 (1964) ........................................................ 96

Bouie v. City of Columbia, 378 U.S. 347 (1964) ...................................................... 96

Brecht v. Abrahmson, 507 U.S. 619 (1993) .............................................................. 69

Brookhart v. Janis, 384 U.S. 1 (1968) ...................................................................... 41

Burden v. Zant, 498 U.S. 433 (1991) ........................................................................ 38

Chambers v. Mississippi, 410 U.S. 284 (1973) .............................................37, 63, 93

Cheney v. United States District Court, 542 U.S. 367 (2004) .................................. 45

Christoffel v. United States, 200 F.2d 734 (D.C. Cir. 1952) ................................... 100

Cone v. Bell, 129 S. Ct. 1769 (2009) ........................................................................ 85

Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) .............................................92, 97, 99

Cox v. Miller, 296 F.3d 89 (2d Cir. 2002)................................................................. 88

Crane v. Kentucky, 476 U.S. 683 (1986) ......................................................37, 62, 63

Crawford v. Washington, 541 U.S. 36 (2004) .......................................................... 63

Davis v. Alaska, 415 U.S. 308 (1974) ................................................................passim

Davis v. Strack, 270 F.3d 111 (2001)........................................................................ 58


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Delaware v. Van Arsdall, 475 U.S. 673 (1986) ........................................................ 63

Flores v. Demskie, 215 F.3d 293 (2d Cir. 2000) ....................................................... 52

Ford v. Georgia, 498 U.S. 411 (1991) ...................................................................... 95

Green v. Georgia, 442 U.S. 95 (1979) ...................................................................... 63

Harris v. Reed, 489 U.S. 255 (1989).......................................................84, 85, 86, 89

Hathorn v. Lovorn, 457 U.S. 255 (1982) .................................................................. 95

Holmes v. South Carolina, 547 U.S. 319 (2006) ................................................62, 93

James v. Kentucky, 466 U.S. 341 (1984) ............................................................92, 95

Jencks v. United States, 353 U.S. 657 (1957) .....................................................53, 63

Jimenez v. Walker, 458 F.3d 130 (2d Cir. 2006) ....................................37, 85, 87, 90

Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000) ..............................................39, 69, 86

Justice v. Hoke, 90 F.3d 43 (2d Cir. 1996) ............................................................... 39

Kotteakos v. United States, 328 U.S. 750 (1946) ...................................................... 69

Kozlowski v. New York, 129 S. Ct. 2775 (2009) ................................................... 3, 35

Lee v. Kemna, 534 U.S. 362 (2001) ..................................................91, 92, 95, 98, 99

In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988) ................................... 100

Michigan v. Long, 463 U.S. 1032 (1983)............................................................85, 89

Michigan v. Lucas, 500 U.S. 145 (1991) .................................................................. 62

NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................ 96


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Palermo v. United States, 360 U.S. 343 (1959) ..................................................53, 63

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) .....................................................passim

Pinckney v. Keane, 920 F.2d 1090 (2d Cir. 1990) .................................................... 38

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) ......................................... 96

Rock v. Arkansas, 483 U.S. 44 (1987) ................................................................37, 62

Rogers-Bey v. Lane, 896 F.2d 279 (7th Cir. 1989) ................................................... 89

Rose v. Lane, 910 F.2d 400 (7th Cir. 1990) .............................................................. 86

Rovario v. United States, 353 U.S. 53 (1957) .....................................................65, 66

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994) ............................................... 85

Smith v. Illinois, 390 U.S. 129 (1968) ....................................................................... 63

Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1969) ............................. 51

Staub v. City of Baxley, 355 U.S. 313 (1958) .....................................................92, 96

Taylor v. Illinois, 484 U.S. 400 (1988) ...............................................................37, 63

Three Affiliated Tribes v. Wold Engineering, P.C., 467 U.S. 150 (1984) ................ 89

U.S. v. Nixon, 418 U.S. 684 (1974) .........................................................31, 32, 45, 46

U.S. v. Valenzuela-Bernal, 458 U.S. 858 (1982) ...................................................... 67

United States v. Agurs, 427 U.S. 97 (1976) .............................................................. 39

United States v. Andolschek, 142 F.2d 503 (1944) .............................................81, 82

United States v. Carmichael, 216 F.3d 224 (2d Cir. 2000)...................................... 77


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United States v. Leon, 468 U.S. 897 (1984) .............................................................. 45

United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) ....................................... 46

United States v. Nobles, 422 U.S. 225 (1975).....................................................51, 62

United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) ......................................... 81

United States v. Scheffer, 523 U.S. 303 (1998)......................................................... 62

United States v. Stein, 541 F.3d 130 (2d Cir. 2008) ................................................. 77

Victor v. Nebraska, 511 U.S. 1 (1994) ................................................................85, 86

Washington v. Texas, 388 U.S. 14 (1967) ................................................................. 63

Willis v. Cohn, 956 F.2d 1165 (7th Cir. 1992) .......................................................... 90

Wilson v. United States, 221 U.S. 361 (1911)......................................................... 100

Wright v. Georgia, 373 U.S. 284 (1963) ................................................................... 96

Ylst v. Nunnemaker, 501 U.S. 797 (1991) ...........................................................85, 89

Young v. Dretke, 356 F.3d 616 (5th Cir. 2004) ......................................................... 38

STATE CASES

Babcock v. Jackson, 40 Misc. 2d 757 (Sup. Ct. Monroe County 1963).................. 57

Careccia v. Enstrom, 174 A.D.2d 48 (3d Dept. 1992) ............................................ 55

Collins v. Jamestown Mutual Insurance Co., 32 A.D.2d 725 ) ............................... 42

Dimechel v. S. Buffalo Railway Co., 80 N.Y.2d 184 (1992) .............................54, 55

Drizin v. Sprint Corp., 3 A.D.3d 388 (1st Dept. 2004) ........................................... 50


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Fireman's Insurance Co. of Newark, N.J. v. Gray, 41 A.D.2d 863
(3d Dept. 1973) ................................................................................................... 42

Goldberg v. Hirschberg, 10 Misc. 3d 292, 299 ....................................................... 50

Kane v. Her-Pet Refrigeration Inc., 181 A.D.2d 257 (2d Dept. 1992) ................... 55

Kaplan v. Einy, 209 A.D.2d 248 (1st Dept. 1994)................................................... 55

Lamitie v. Emerson Electric Co., 208 A.D.2d 1081 (3d Dept. 1994) ..................... 57

Milone v. General Motors Corp., 84 A.D.2d 921 (4th Dept. 1981) ........................ 42

People v. Ayala, 142 A.D.2d 147 (2d Dept. 1988) .................................................. 97

People v. Combest, 4 N.Y.3d 341 (2005) ................................................................ 78

People v. Duncan, 177 A.D.2d 187 (2d Dept. 1992)............................................... 97

People v. Edwards, 95 N.Y.2d 486 (N.Y. Ct. App. 2000) ...................................... 97

People v. Gissendanner, 48 N.Y.2d 543 (1979) ...............................................passim

People v. Johnson, 144 A.D.2d 490 (2d Dept. 1988) .............................................. 97

People v. Kozlowski, 47 A.D.3d 111 (1st Dept. 2007) ........................................ 2, 27

People v. Kozlowski, 10 N.Y.3d 767 (2008) .............................................................. 2

People v. Kozlowski, 11 N.Y.3d 767 (2008) .....................................................passim

People v. Kozlowski, 11 N.Y.3d 904 (2009) .....................................................passim

People v. Mezon, 80 N.Y.2d 155 (1992) ...........................................................97, 98

People v. Seabrook, 241 A.D.2d 325 (1st Dept. 1997) ........................................... 97

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People v. Swartz, 10 N.Y.3d 772 (2008) ............................................................... 2, 3

People v. Thurston, 619 N.Y.S.2d 465 (4th Dept. 1994) ...................................... 100

People v. Young, 79 N.Y.2d 365 (1992) .................................................................. 52

See EEOC v. Safeway Store, Inc., 2002 WL. 31947153 (N.D. Cal.
Sept. 16, 2002) .................................................................................................... 71

Spectrum System International Corp. v. Chemical Bank,


78 N.Y.2d 371 (1991) ......................................................................................... 50

Tyco Int’l Ltd. v. Swartz, 2005 WL 6175342 (Sup. Ct.


N.Y. County 2005) ................................................................................................... 96

Yasnogordsky v. City of New York, 281 A.D.2d 541 (2d Dept. 2001) .................... 50

DOCKETED CASES

People ex rel. Spitzer v. Grasso, No. 401620/04 (N.Y. Co. Sup. Ct.
April 11, 2006) ..............................................................................................73, 74

FEDERAL STATUTES

28 U.S.C.A. § 2254 .................................................................................................... 1

28 U.S.C.A. § 391 .................................................................................................... 83

Article 240 of the Criminal Procedure Law............................................................. 42

Fed. Rule Civ. Proc. 26(b)(3)................................................................................... 51

Jencks Act, 18 U.S.C. § 3500 (1957)....................................................................... 33

STATE STATUTES

3A Weinstein-Korn-Miller, N.Y.Civ.Prac., ¶ 3101.51 ............................................ 42

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Connors, Practice Commentaries, 7B McKinney's C.P.L.R., C:3101:29,
at 78 (2005 ed.) ................................................................................................... 50

N.Y. C.P.L.R. § 240.44 ............................................................................................ 53

N.Y. C.P.L.R. § 3101(a) .......................................................................................... 41

N.Y. C.P.L.R. § 3101(c) .......................................................................................... 17

N.Y. C.P.L.R. § 3101(d) ...................................................................................passim

N.Y. Penal Law § 105.10 ........................................................................................... 1

N.Y. Penal Law § 155.42 ........................................................................................... 1

N.Y. Penal Law § 175.10 ........................................................................................... 1

MISCELLANEOUS

General Business Law § 352-c(5) .............................................................................. 1

John Gibeaut, Junior G-Men, 89-Jun A.B.A. J. 46, 70 (2003) ................................ 80

N.Y. Court of Appeals, Annual Report of the Clerk of the Court 2008,
available at http://www.nycourts.gov/ctapps/AnnRpt2008.pdf, at 7 ................. 28

The Evolving role of General Counsel: Leadership in Challenging Times,


August 2006 NLJ Supp., at 5-6 .......................................................................... 72

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Petitioner L. Dennis Kozlowski, through undersigned counsel, submits this

memorandum of law in support of his petition, pursuant to 28 U.S.C. § 2254, for a

writ of habeas corpus.

PRELIMINARY STATEMENT
Mr. Kozlowski, the former Chief Executive Officer of Tyco International,

Ltd. (“Tyco”), and Mark H. Swartz (“Swartz”), Tyco’s former Chief Financial

Officer (together, “Defendants”), were charged in New York state court with

grand larceny and other offenses, the gravamen of which was the claim that they

awarded themselves substantial bonus compensation to which they were not

entitled. Defendants’ first trial lasted seven months and, after eleven days of jury

deliberations, ended in a mistrial. Following a second, four-month, trial, Mr.

Kozlowski was convicted of grand larceny in the first degree, N.Y. Penal Law §

155.42 (12 counts), falsifying business records in the first degree, N.Y. Penal Law

§ 175.10 (eight counts), one count of conspiracy in the fourth degree, N.Y. Penal

Law § 105.10, and one count of violating General Business Law § 352-c(5) (the

“Martin Act”).1 He was sentenced to 8 1/3 to 25 years’ incarceration.2

1
Co-defendant Swartz was convicted on similar counts.
2
Mr. Kozlowski was sentenced to prison terms of 8 1/3 to 25 years on four of the counts, 5 to 15
years on four other counts and 1 1/3 to 4 years on the remaining counts, with all sentences to run
concurrently.
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Defendants appealed to the Appellate Division, First Department, which

affirmed the judgments of conviction on November 15, 2007. People v.

Kozlowski, 47 A.D.3d 111 (1st Dept. 2007). In its decision, the Appellate Decision

held that the trial court properly quashed the pre-trial subpoena that Defendants

had issued to a law firm that conducted an internal investigation for Tyco for the

recorded statements made by Tyco directors who thereafter became prosecution

witnesses (the “Director-Witnesses”). The recorded statements were not part of

the record on appeal and have never been inspected by any court. The Appellate

Division averred that the unseen documents “were not material and exculpatory.”

The court also rejected Defendants’ other claims, including their challenge to the

sufficiency of the evidence.

On October 16, 2008, the New York Court of Appeals affirmed the

Appellate Division’s order. People v. Kozlowski, 11 N.Y.3d 223 (2008).3 With

respect to the subpoena issue, the court rejected the Appellate Division’s analysis,

finding instead that Defendants had made the threshold showing necessary to the

enforcement of the subpoena – Defendants pointed to facts that gave rise to the

inference that the materials were “reasonably likely to . . . contradict the [trial

3
Defendants received permission to appeal to the Court of Appeals on February 28, 2008.
People v. Kozlowski, 10 N.Y.3d 767 (2008) (Ciparick, J); People v. Swartz, 10 N.Y.3d 772
(2008) (Ciparick, J).
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testimony] of key witnesses for the People.” Id. at 243. Moreover, the court also

agreed with Defendants that the materials sought were not protected as opinion

work product. Id. at 245. The court nevertheless upheld the quashing of the

subpoena, based upon an argument that had not been made, in any form, by the

prosecution in its 214 page brief (or by either amicus). Specifically, applying its

interpretation of a New York civil discovery statute, the court concluded that

Defendants were disqualified from obtaining the potentially exculpatory first

recorded statements of key prosecution witnesses because Defendants failed to

attempt to replicate the statements – something the court said Defendants could

have done by attempting their own interviews of the witnesses at “an earlier time.”4

Although the opinion included a discussion of the nature of the evidence against

Defendants, the court did not state its reason for rejecting Defendants’ legal

challenge to the sufficiency of the evidence. Id. at 230-34.

On January 13, 2009, the New York Court of Appeals denied Defendants’

motion for reargument. People v. Kozlowski, 11 N.Y.3d 904 (2009). On June 8,

2009, the United States Supreme Court denied their petition for a writ of certiorari.

Kozlowski v. New York, 129 S. Ct. 2775 (2009). Petitioner is in the custody of

Respondent Hulihan pursuant to the judgment.

4
As explained below, the court’s use of the phrase “earlier time” necessarily referred to the
period before Defendants were accused of the charges on which they were later convicted.
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QUESTION PRESENTED
Whether the quashing of Petitioner’s subpoena for the recorded,

investigatory-stage statements of the key prosecution trial witnesses – statements

which were found likely to be exculpatory – based on Petitioner’s failure to

attempt to interview the witnesses himself before he had been accused of the

crimes for which he was tried, violated Petitioner’s constitutional rights to present

a defense and to due process of law under the Sixth and Fourteenth Amendments.

SUMMARY OF ARGUMENT
The central accusation against Mr. Kozlowski was that his receipt of four

separate bonus payments from Tyco constituted a theft. The accusation relied on

testimony from Tyco’s directors that they had not approved the bonuses. To

challenge this testimony, Mr. Kozlowski sought to obtain the earliest recorded

statements by the directors about the disputed bonuses. Because of the

circumstances surrounding the statements, as New York’s highest court ultimately

found, the statements were “reasonably likely to . . . contradict the statements of

key witnesses [the directors] for the [prosecution].” Kozlowski, 11 N.Y.3d at 243.

The court, after also recognizing that no party contended that the statements were

attorney-client privileged, concluded that the statements (made to a law firm

conducting an internal investigation) were likewise not protected as opinion work

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product. Id. at 244-45. Nevertheless, the court sustained the quashing of the

Defendants’ subpoena, merely because the Defendants had failed to interview the

witnesses before the indictment was returned. Id. at 245–46.

As the United States Supreme Court has repeatedly articulated, a criminal

defendant’s right to present his defense is protected by the Sixth and Fourteenth

Amendments. The right is violated when a defendant is deprived of access to

evidence that is material to his defense, based on a rule that is either arbitrary or

disproportionate to the purpose it is designed to serve. In other words, a right to

present a defense claim has two elements: (1) prohibition on access to or the

effective use of evidence material to the defense (the “materiality element”); (2)

based on a rule that is either arbitrary or disproportionate to purpose it is designed

to serve (the “arbitrariness element”). Mr. Kozlowski’s claim easily satisfies both

elements.

First, there can be no question that the evidence sought was material, given

the New York court’s finding that it was likely to “contradict” key prosecution

testimony. The New York court explained its reason for this finding. Because

Tyco allowed Mr. Swartz to continue to exercise substantial authority as Tyco’s

CFO after the directors were interviewed by the law firm Boies Schiller & Flexner,

L.L.P (“BSF”) and made aware of the fact the investigation was potentially

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targeting Mr. Swartz, and also because Tyco paid Mr. Swartz $50 million in

severance when he resigned, it is unlikely that the Directors’ interview statements

were consistent with their trial testimony, two years later, that the bonuses were

larcenies because they were paid without the directors’ approval. Moreover,

because the court’s finding about the statements’ likely exculpatory character is

factual in nature, it is entitled to deference on habeas review.

Furthermore, Tyco’s continued retention of Swartz after the directors were

interviewed by BSF strongly suggests that the directors’ statements to BSF would

have been as or nearly as valuable to Kozlowski, as impeachment material, as the

statements would have been to Swartz. Both Kozlowski’s and Swartz’s bonuses

were based on the same transactions and contractual documents that each

Defendant pointed to as entitling them to receive the bonuses (Swartz received half

of the amount paid to Mr. Kozlowski). Moreover, even if the initial statements of

the Director-Witnesses revealed only that they had been informed of the bonuses

that Mr. Swartz was later accused of stealing, such an inconsistency with their trial

testimony would still have been extremely valuable to Mr. Kozlowski’s defense.

Had Mr. Kozlowski had been able to demonstrate to the jury that the directors

“changed their tune” with respect to so important a subject as the propriety of the

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bonuses paid to Mr. Swartz, the directors’ credibility would have been effectively

undermined.

Likewise, there is no serious question that the explanation given by New

York’s high court for sustaining the lower court’s quashing of the subpoena for this

important evidence – Defendants failed to fulfill a condition purportedly contained

in a state statute that, before they are even charged with a crime, they must seek

interviews with prosecution witnesses – is arbitrary. Indeed, there are several,

independent, reasons why this is so. The first, most profound reason is also self

evident: the court’s rule required Mr. Kozlowski, as a condition of subpoena

enforcement, to investigate a criminal charge before it had been leveled. The

imposition of such a rule can also not be considered proportionate, or rationally

related, to the purpose the rule is theoretically designed to serve. To the extent

such a rule can even be said to have a purpose, it is to motivate subpoena issuers to

first try to obtain the substantial equivalent of that which they seek through

subpoena. However, the rule has no purpose when applied to a criminal defendant

who seeks to obtain prior, inconsistent witnesses statements because such

statements have no substantial equivalent. Instead, prior inconsistent statements

are unique. And most fundamentally, the rule cannot rationally be expected to

motivate criminal defendants to investigate cases that do not exist, and a potential

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criminal defendant faced with such a requirement would be in no position to assess

how to go about investigating the uncharged, undeveloped and perhaps

unanticipated case.

The New York court’s rule is also arbitrary for two other, independent

reasons. First, the statute which the court said contained the rule, C.P.L.R. §

3101(d)(2), does not protect a non-party, like Tyco, from a subpoena for its

litigation materials. By its plain terms, the statute, which regulates discovery in

civil cases, only limits disclosure of litigation materials when they are sought, in a

specific litigation, from one party to that litigation by another party to that

litigation. Second, even if the statute could be interpreted to apply to discovery

requests made to non-parties, Mr. Kozlowski unquestionably complied with all of

the statute’s conditions. The condition which the New York court said Mr.

Kozlowski had not complied with – an effort to conduct interviews to defend a

case at time before that case exists – is not contained in any statute.

Finally, to the extent that there are any questions about the applicability of

the New York statute – whether it applies or how it should be applied – in the

context of a subpoena issued by a criminal defendant for important defense

evidence, those questions must be resolved by giving substantial deference to the

constitutional rights of the criminal defendant. Instead, the New York court

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strictly and mechanistically applied what it understood a state civil discovery

statute to require, in a fashion that unconstitutionally elevated a corporation’s

statutory, qualified privilege above a criminal defendant’s constitutional right to

present a defense.

In sum, Mr. Kozlowski was deprived of access to constitutionally

significant evidence on grounds that were entirely arbitrary. The error devastated

the defense because it prevented the impeaching of prosecution witnesses on the

key subject in dispute. The writ should therefore issue.

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STATEMENT OF FACTS

The Investigation
This case arose out of an internal investigation conducted for Tyco by BSF.

Tyco retained BSF in April, 2002, at which time BSF’s mandate was to investigate

Tyco’s payment of an investment banking fee to Frank Walsh (“Walsh”), a Tyco

director. PA207-08 (A253-54) (David Boies (“Boies”)).5 Approximately two

months later Tyco’s board expanded the scope of the investigation to include such

subjects as all financial transactions between the Company and its top management

and directors. PA4-6 (Tr.1 605-07), PA22-23 (Tr.2 1890-91) (John Fort (“Fort”));

PA208-12 (A254-58) (Boies). Tyco ultimately filed two SEC Form 8-K’s that

“outlined all the findings the investigation produced” in an effort to restore

investor confidence in the Company. PA123 (A38) (Fort); see also PA372 (Swartz

Exhibit 1010) (10-Q Filing Details; update sentence as well).

During its investigation, BSF attorneys interviewed many Tyco employees

and directors and memorialized those interviews in notes and memoranda. In

5
Numbers preceded by “PA” refer to pages of the Petitioner’s Appendix filed with this
memorandum of law. Cross-references are also provided to the State appellate record. Numbers
preceded by “A” refer to pages of the single volume Appendix submitted to the New York Court
of Appeals. Numbers preceded by “AD” refer to pages of the seven volume Appendix submitted
to the Appellate Division, First Department. Numbers preceded by “RA” refer to pages of the
Prosecution’s Appendix submitted to the New York Court of Appeals. Numbers preceded by
“Tr.1” refer to pages of the transcript of the first trial (which ended in a mistrial). Numbers
preceded by “Tr.2” refer to pages of the transcript of the second trial. Names in parentheses
following transcript numbers denote the testifying witness(es).
6495321.4
10
certain instances, the notes and memoranda were not provided to the prosecution

(and hence not to Defendants). Nevertheless, the subjects of the interviews were

disclosed when Tyco produced privilege logs to Defendants in related civil

litigation.6 The following excerpts from BSF’s privilege logs summarize

interviews about subjects that were central to the criminal case:

i. June 6, 2002 notes of a conversation with Tyco


Director/interim CEO John Fort regarding Walsh
payment.
ii. June 6, 2002 notes and memoranda of
conversations with Treasurer Michael Robinson on many
subjects, including insurance, wire transfer procedures,
the Key Employee Loan Program, wire transfers to
directors, the Frank Walsh wire transfers, the relocation
program or any other Tyco loans, and wire transfers for
artwork, furnishings, and corporate apartments.
iii. June 7 and 10, 2002 notes and memoranda of
conversations with employee Patricia Prue concerning
the Key Employee Loan Program, lines of authority at
Tyco, Tyco corporate executives’ residences purchases
and disbursements under the Tyco relocation program
and the Key Employee Loan Program, reporting KEL
and relocation loans on W-2 statements, reimbursement
for use of corporate aircraft, Swartz’s reported W-2
income, related party transactions and purchase/pooling
activities.
iv. June 11, 2002 notes and memoranda of
conversations with Tyco SVP of Finance Mark Foley
regarding Tyco’s chain of command, PwC audits, the

6
These logs were later appended to motion papers filed by Defendants with the trial court.
6495321.4
11
Key Employee Loan Program, invoice approvals, art
purchases, real estate and other issues.

v. August 12 and 13, 2002 notes of telephone


interviews with directors Ashcroft, Berman, Bodman,
Fort, Foss, Lane, Pasman and Slusser about the Key
Employee Loan Program, Relocation Loans,
compensation events, property transactions, use of
company assets, charitable contributions, and related
party transactions.

PA140-85 (A160-205). Most of these interviewees were witnesses at both the first

trial (which ended in a mistrial) and the retrial. As is evident from the quoted

privilege logs, the subjects discussed by the directors and officers during these

interviews were plainly relevant to the criminal charges on which Defendants were

convicted. New York’s high court ultimately made such a finding with respect to

the Director-Witness interviews (those conducted on June 6 and August 12/13) that

were the focus of the state appeal. Kozlowski, 11 N.Y.3d at 242-43.

Moreover, the statements were not merely relevant. As the New York Court

of Appeals also later found, the behavior of Tyco and its Directors after the

statements were made suggested the likelihood that the statements were

inconsistent with the Directors’ trial testimony. In making this finding, New

York’s high court noted that the following facts were “undisputed.”

[A]fter the directors were made aware of at least some of


defendants' questionable activities through the Boies
Schiller investigation, they continued to permit Swartz to

6495321.4
12
exercise substantial authority as the CFO of Tyco until
September 11, 2002-the day before he was indicted-and
voted to pay him $50 million in severance just one day
after the last of the relevant director interviews.
Kozlowski, 11 N.Y.3d at 243.
In other words, as the New York high court found, it was unlikely that Tyco

would have continued to repose substantial authority in Mr. Swartz (and then pay

him $50 million) if Tyco’s directors had told BSF that Mr. Swartz had taken tens

of millions of dollars from Tyco without any authority for him to do so.

Kozlowski, 11 N.Y.3d at 242-43. And, because Tyco did repose that authority in

Mr. Swartz and did pay him that substantial, additional sum, it is doubtful that the

directors’ statements to BSF were consistent with the directors’ trial testimony,

more than two years later, that the bonuses were totally unauthorized.

Mr. Kozlowski left Tyco on June 3, 2002. Around that time, the New York

County District Attorney’s Office began investigating whether criminal activity

had occurred at Tyco and the grand jury subpoenaed a wealth of Tyco documents.

In response, Tyco asserted various privileges and resisted production. When the

District Attorney’s Office complained that the privilege review was causing

“delay,” the Company relented. PA137 (A154). Two days before the grand jury’s

term was to expire, Tyco produced all previously withheld documents to the

prosecution (as well as to the SEC). PA132-33, PA137 (A149-50, A154).

6495321.4
13
Although an untold amount of attorney-client and work-product material was

produced, the Company claimed a “reservation of privilege” pursuant to Tyco’s

“common interest with the District Attorney’s Office” in investigating the matter.

PA137, PA 189 (A154, A209).7

In addition to producing volumes of privileged documents, BSF lawyers

“consult[ed] regularly with the District Attorney’s Office about the proceedings,”

“respond[ed] to any questions that the District Attorney’s Office ha[d]” and were

“committed” “to provid[ing] answers to questions or documents that exist.”

PA128 (A81) (Boies). Witnesses were interviewed and prepared by BSF before

being made available to the prosecutors. As the lead prosecutor later described

(during the proceedings in the related prosecution of Tyco’s former General

Counsel, Mark Belnick), the prosecution had “been told [by BSF] there are

documents we should look at, there are witnesses we should talk to.” PA130

(A143). Indeed, earlier on, when a different firm was conducting the internal

investigation, a prosecutor sat in during one of the witness interviews. See PA141,

entry 6 (A161, entry 6) (noting presence of ADA John Moscow at “privileged”

interview). In sum, BSF and the District Attorney’s office had a very close

7
Throughout these proceedings, BSF also represented Tyco in various related civil litigation,
including actions against Defendants to recover the bonus money.
6495321.4
14
relationship – the District Attorney could obtain any information or documents

held by BSF simply by asking.

The Indictment
Mr. Kozlowski was charged with 12 counts of grand larceny in the first

degree (the “Larceny Counts”), of which Tyco was the purported victim. The

larcenies fell into three categories: (1) eight counts related to the claim Petitioner

had stolen bonus compensation; (2) one count related to the claim Petitioner had

caused Tyco to pay an investment banking fee to Walsh for his role in facilitating a

Tyco corporate merger; and (3) three counts related to the claim Petitioner had

used Tyco funds to purchase artwork.

Petitioner was also charged with nine counts of falsifying business records in

the first degree, one count of conspiracy in the fourth degree, and one count of

violating the Martin Act. Similar charges were brought against Swartz.

The First Trial


The prosecution called the Director-Witnesses to testify that they had not

approved the disputed bonuses. After a seven-month trial and eleven days of jury

deliberations, the case ended in a mistrial when the court determined that a juror’s

ability to deliberate had been compromised by the content of a letter she received

PA9-12 (AD736.1-736.4).

6495321.4
15
Defendants’ Subpoena for Impeachment Materials and
Tyco’s Motion to Quash the Subpoena
Before the commencement of the re-trial, Defendants issued a subpoena

duces tecum to BSF for the recorded interviews of the Director-Witnesses.8

Kozlowski, 11 N.Y.3d at 234-355. As described above, the subjects discussed at

these interviews included the directors’ knowledge and/or authorization of

Defendants’ bonus compensation, a undisputedly critical subject given that, as later

stated by the New York Court of Appeals, the prosecution “center[ed] on the

charge that defendants’ bonuses were not approved by the Compensation

Committee or the board of directors.” Id. at 241 (emphasis added). And as also

mentioned above, because the directors continued to repose “substantial authority”

in Swartz (and paid him $50 million) after the directors were interviewed about the

Defendants’ compensation, the New York high court also found that the statements

were “reasonably likely to contain material that could contradict the statements of

key witnesses for the People.” Id. at 243.

Defendants sought the statements directly from Tyco because the

prosecution did not produce them. Although Tyco and the prosecution had worked

very closely together – e.g., Tyco produced more than 10 million pages to the
8
Although the subpoena originally sought production of additional materials, Defendants
thereafter narrowed the subpoena and, on appeal, focused exclusively on the quashing of the
subpoena for the notes of the particular interviews of Directors, conducted on June 6 and August
12/13, relating to compensation events. See People v. Kozlowski, 11 N.Y.3d at 234.
6495321.4
16
prosecution and described its relationship with the prosecuting agency as a

“common interest agreement” – the prosecution represented that it had never asked

Tyco for the first recorded statements of the Tyco directors who became key

prosecution witnesses.9 Accordingly, Mr. Kozlowski and Mr. Swartz issued a

subpoena for the statements directly to BSF.

Tyco, responding to that subpoena, filed a motion to quash. Tyco argued

that Defendants had not met the standard for subpoena enforcement enunciated in a

leading New York Court of Appeals case, People v. Gissendanner, 48 N.Y.2d 543

(1979). Gissendanner, as Tyco noted, requires a criminal defendant to

demonstrate that his subpoena is not merely a “fishing expedition,” but rather, is

“reasonably likely” to “produce relevant and exculpatory evidence.” PA265,

PA267 (Tyco Memorandum of Law in Support of Motion to Quash (“Tyco

Mem.”) at 4, 6).

9
Whether Tyco orally disclosed some of the substance of the recorded interviews to the
prosecution is a different question. In BSF’s motion papers, it denied having “orally presented to
the District Attorney the substance of everything contained in its attorneys’ memoranda and
notes.” PA188 (A208) (emphasis added). Notably, this “denial” left open the possibility that
Tyco disclosed some or much of the content of the interview notes to the prosecutor’s office.
This possibility is real, given the comment of the lead prosecutor that while the results of the
BSF investigation were often not reported directly to him, “[p]erhaps there are other people in
the District Attorney’s Office who got more information.” PA235-36 (RA 160-61). The defense
asked for an opportunity to question the BSF lawyers about the subject of the firm’s disclosures
to the prosecution, but the trial court denied the request. PA 366-67 at 31-32 (Tr.2 12/21/04 at
31-32).
6495321.4
17
In addition to challenging whether Defendants met this threshold

requirement for subpoena enforcement, Tyco also made fallback arguments in

support of its motion to quash. First, it contended that the interview notes were

Tyco’s opinion work product and therefore absolutely protected from disclosure,

pursuant to N.Y. C.P.L.R. § 3101(c), even if the notes contained relevant and

potentially exculpatory information. PA266, PA268 (Tyco Mem. at 5, 7).

Alternatively, Tyco argued that even if the materials sought were determined

not to constitute opinion work product, the subpoena should still be quashed. On

this branch of its argument, Tyco contended that the materials should be classified

and analyzed as belonging to a different category – materials prepared in

anticipation of litigation (“litigation materials”). In this event, Tyco contended

Defendants “could not satisfy” the requirements of a New York civil discovery

statute, C.P.L.R. § 3101(d)(2). PA268, n.3 (Tyco Mem. at 7, n.3). The statute,

which governs requests by one party for the disclosure of litigation materials

possessed by another party to the same litigation, requires a showing by the party

seeking litigation materials that it “is unable” to obtain the substantial equivalent of

those materials (without undue hardship). Tyco apparently assumed that the

statute was applicable even though it was not a party to the case in which its

materials were sought. Tyco, also apparently assuming that interviews

6495321.4
18
theoretically conducted by criminal defendants (e.g., Kozlowski and Swartz) of

prosecution witnesses (e.g., Tyco directors) would be treated as the legal

“substantial equivalent” of interviews conducted by the witnesses’ employer,

argued that Defendants were ineligible to receive the notes and memoranda on the

theory Defendants had not shown an inability to “interview [the] witnesses

himself.” PA268, n.3 (Tyco Mem. at 7, n.3). In sum, Tyco’s argument was that

Defendants’ post-indictment interviews, had they occurred, would have been the

“substantial equivalent” of BSF’s pre-indictment interviews.10

In opposition, Defendants argued that the subpoena easily satisfied the

“more than a fishing expedition” threshold and explained why the materials had

the potential to undercut the credibility of critical prosecution witness testimony.

PA256 at 24, PA259 at 36 (RA213 at 24, RA216 at 36) (specifically noting that

after the interviews of the Director-Witnesses, Tyco continued to treat Swartz as

10
Tyco also asserted that the materials were protected by the attorney-client privilege. In
response, Defendants argued that any attorney-client privilege that might at one time have
attached to the materials (recordings of conversations between BSF investigators and Tyco
directors) had been waived by such acts as the giving of testimony (without objection by Tyco)
by various high ranking Tyco employees and directors about their conversations with Tyco’s
lawyers. See PA250 (RA194). The trial court never ruled on Tyco’s claim of attorney-client
privilege, focusing its privilege analysis exclusively on Tyco’s work-product argument. PA191-
96 (A211-16); see also Kozlowski, 11 N.Y.3d at 242 (stating that “the trial court . . . confin[ed]
its written opinion on the subpoena application to questions concerning the applicability of the
work product and trial preparation privileges”).
In any event, the attorney-client privilege argument, which Tyco advanced only in the trial
court, is irrelevant to this Petition because the state courts, at every level, failed to endorse or
even rule on Tyco’s claim of attorney-client privilege and because the prosecution, on appeal,
abandoned the attorney-client privilege argument entirely. See Kozlowski, 11 N.Y.3d at 244.
6495321.4
19
though he “had [not] done anything wrong,” which went directly to “the credibility

of directors who [now] say, we found out Mark Swartz [received] an ADT bonus,

we never approved that”) (emphasis added). New York’s high court ultimately

agreed with Defendants on this score. See Kozlowski, 11 N.Y.3d at 243 (finding

that the subpoenaed materials, if produced, would be reasonably likely to support

an inference that “the director witnesses . . . changed their tune [about Defendants’

innocence] after the District Attorney obtained an indictment”).

Defendants also argued that the materials covered by the subpoena were not

protected from disclosure as opinion work product, making explicit that they

sought only to discover facts (the directors’ raw statements), not the attorneys’

opinions, and agreed that any expression of opinion should be redacted from the

interview notes. PA256 at 22-23 (RA213 at 22-23) (Transcript of Hearing).

Ultimately, New York’s high court agreed with Defendants on this subject as well.

Kozlowski, 11 N.Y.3d at 244-45.

Defendants also disputed Tyco’s alternate argument, the notion that they had

both an obligation and an ability to obtain the “substantial equivalent” of the

subpoenaed interviews. As Defendants explained, the subpoenaed materials could

not be replicated because the interviews were conducted during a “window of

time” that had long since closed – the period after the investigation had been

6495321.4
20
commenced but before Defendant Swartz’s employment as CFO had been

terminated and Defendants indicted. PA256 at 24-25 (RA213 at 24-25); PA257 at

26 (RA214 at 26). In other words, and as the Court of Appeals later held, the

statements were the earliest recordings of the Director-Witnesses’ positions on the

key issue in the trial, and the fact that the directors continued to employ Swartz as

CFO after those statements were made [and paid him $50 million] gave rise to a

sufficiently high likelihood that the statements were inconsistent with the directors’

trial testimony. Kozlowski, 11 N.Y.3d at 242-43.11

Finally, Defendants asserted the view that, even if the materials were

categorized as opinion work product or litigation materials, the court should have

nevertheless ordered disclosure, simply because of the materials’ unique

importance to the defense of a criminal case. See PA191-92 (A211-12) (Trial

11
Later in the same opinion, the Court of Appeals inconsistently tasked Defendants with having
“made no effort to show any ‘undue hardship’ that would have prevented them from securing
their own ‘substantial[ly] equivalent’ interviews with the director-witnesses (see CPLR
3101[d][2]).” Kozlowski, 11 N.Y.3d. at 245. As argued below, this completely missed the point.
It was not that Defendants had shown an actual inability to interview the Director-Witnesses, but
that they were not legally, or logically, required to attempt such interviews: Post-indictment
interviews conducted by Defendants, even if theoretically possible, could not be the “substantial
equivalent” of pre-indictment interviews conducted by BSF because the statements memorialized
the directors’ views “before their motives had changed,” PA 314, n.13 (Swartz Court of Appeals
Brief at 29 n.13), that is, before the directors “changed their tune” about Defendants’ guilt,
PA243 (RA187) (Trial Court Proceedings). Indeed, the Court of Appeals specifically concluded
that Defendants’ allegation that the directors had changed their tune “after the District Attorney
obtained an indictment” was among the facts that supported the inference the pre-indictment
statements would have “contradict[ed]” the Directors’ trial testimony. Kozlowski, 11 N.Y.3d at
243.
6495321.4
21
Court Opinion) (acknowledging Defendants’ position that even if the documents

are protected as “work product and trial preparation materials,” “they are

nevertheless subject to disclosure”); PA194 (A214) (describing Defendants’

position as “work product protection should not apply because the contents of the

requested memoranda and notes are…relevant to th[e] [criminal] case”).

In this vein, Defendants repeatedly stated their position that enforcement of

their subpoena was critical and that quashing the subpoena would therefore impair

their ability to present their defense. For example, Defendants noted that it would

be “fundamentally unfair” if the trial court were to thwart Defendants’ right to

compulsory process by allowing Tyco “to hide behind” the privileges it claimed.

PA238 (RA182). Defendants also emphasized that the interview notes were

“material to issues at the heart of this case,” PA238 (RA182), and argued that the

notes were so likely to be exculpatory that the prosecution, if it had obtained them,

would have been under an obligation to “provide it as Brady to us,” PA258 at 33

(RA215 at 33).

6495321.4
22
The Trial Court’s Decision to Quash the Subpoena
As explained below, the trial court granted Tyco’s motion to quash on the

ground that the court believed Defendants’ subpoena was unlikely to uncover

director statements inconsistent with the directors’ trial testimony. Therefore, in

the court’s view, the subpoena constituted a “fishing expedition.”

The trial court devoted much of its six-page opinion to the question whether

Tyco, by making selective disclosures of its work product, had waived its work

product claims. Analytically, waiver was not the threshold question, nor even the

question that logically followed it. Instead, as the New York Court of Appeals

later explained, under New York law the threshold legal question was whether the

subpoena met the Gissendanner “fishing expedition” test. Kozlowski, 11 N.Y.3d at

241-42. And, if the answer to that question had been yes (as described in more

detail below, the trial court’s answer was no) the question that would then have

logically required an answer is whether the materials were statutorily protected

from disclosure as opinion work product. Ultimately, the court did decide that the

subpoenaed materials were BSF’s opinion work product, making it necessary to

determine whether Defendants were nevertheless entitled to the materials, either

because, as Defendants argued, their need for the materials to defend a criminal

accusation trumped Tyco’s interest in the confidentiality of its work product

6495321.4
23
(whether qualified or absolute) – or whether Tyco had somehow waived work

product protection (the subject on which the court’s opinion focused).

In analyzing the opinion work product and related waiver questions, the

court stated its impression that Defendants (or at least Defendant Swartz) did “not

dispute” the facial applicability of the opinion work product privilege to the

materials Defendants sought to obtain. PA191-92 (A211-12). This was wrong:

New York’s high court later acknowledged that Defendants, in the trial court, had

challenged Tyco’s assertion of the opinion work product privilege. Indeed,

although the prosecution’s position on appeal was that Defendants had conceded

the issue below and therefore not preserved it for appellate review (PA 342

(Prosecution Br. at 173)), New York’s highest court not only reached the merits of

the issue (implicitly rejecting the prosecution’s lack of preservation argument) but

also ruled for Defendants on those merits, holding the documents were “not

absolutely privileged.” Kozlowski, 11 N.Y.3d at 245.

In any event, the trial court’s analysis of the tertiary waiver question was to

reject “subject matter” waiver as a basis for finding waiver, and accordingly, to

conclude that Tyco was entitled to resist disclosure based on New York’s opinion

work product doctrine. PA194 (A214).

6495321.4
24
On the subject of the Gissendanner threshold (and ultimately, only truly

consequential) issue12 – whether Defendants had articulated a sound basis for

believing that their subpoena would uncover relevant and potentially exculpatory

material and therefore passed the “fishing expedition” test – the trial court

explicitly concluded that they had not; after characterizing Defendants’ proffered

basis for issuing the subpoena, the court held explicitly that “disclosure on that

basis would constitute the proverbial fishing expedition for impeachment material.”

PA195-96 (A215-16) (emphasis added). The court elaborated on this finding

further, stating that Defendants had failed to demonstrate a “likelihood” that the

subpoenaed materials would contain a witness “statement to counsel inconsistent

with his or her trial testimony.” PA196 (A216).13

12
As we argue below, among the issues addressed by the trial court, the Gissendanner question
was the only question whose disposition logically mattered to its ruling. Because the trial court
ruled that Defendants failed to meet the Gissendanner threshold, the trial court was required to
conclude – under Gissendanner itself – that Defendants did not have a constitutional right to
enforcement of the subpoena. 48 N.Y.2d at 547-49. Given the trial court’s ruling that
Defendants had failed to meet the Gissendanner threshold and were therefore not entitled to
subpoena enforcement, it could not have logically mattered whether the subpoenaed documents
were also exempt from disclosure for other potentially independent reasons, such as the
documents’ classification as work product or litigation materials, or whether Tyco had waived
the protection ordinarily provided to such materials.
13
In light of the trial court’s explicit statement that Defendants had failed the Gissendanner
“fishing expedition” test, the Court of Appeals’ later conclusion that the trial court had
“implicitly” found the opposite – satisfaction of the Gissendanner test – was plainly wrong. The
Court of Appeals relied on the notion that the trial court had purportedly “confined” its opinion
to “questions concerning the applicability of the work product and trial preparation privileges”
for the notion that the trial court found satisfaction of the Gissendanner test. Kozlowski, 11
N.Y.3d at 242. But as is clear from the face of the trial court’s opinion, that court did not
6495321.4
25
The trial court’s opinion nevertheless briefly discussed C.P.L.R. §

3101(d)(2), the state civil discovery statute that governs requests for litigation

materials made by one party to another and makes such materials available for

discovery, subject to the conditions that a party seeking to obtain them show a

“substantial need” for them and that it “is unable without undue hardship to obtain

the substantial equivalent of the material by other means.” By not stating or even

implying that it was holding Defendants to a requirement to conduct post-

indictment interviews of the Director-Witnesses (as Defendants argued in their

papers, after the witnesses “changed their tune”), the court seemed to recognize

that such interviews would not have been the equivalent of the BSF (pre-

indictment) interviews. Instead, the court imposed a past-tense requirement –

mandating that Defendants show they could not have interviewed the Director-

Witnesses at an “earlier time,” i.e., before the defendants were accused of stealing

their bonuses. PA195 (A215). Thus, albeit as part of an advisory or alternative

ground for its decision, the trial court saddled Defendants with the loss of access to

evidence, for use in a criminal case, because they did not try, before the criminal

case existed, to obtain what the court took to be the “substantial equivalent” of pre-

trial statements by prosecution witnesses.

“confine” itself to the work product and trial preparation privileges, and instead, also explicitly
concluded that Defendants’ subpoena was a “fishing expedition.”
6495321.4
26
The Second Trial
The prosecution again called the Director-Witnesses to testify that they had

not approved the disputed bonuses. This time, Defendants were convicted.

The Appellate Division Decision


Defendants appealed to the Appellate Division, First Department,

challenging, among other things: (a) the sufficiency of the evidence to sustain

their convictions; and (b) the quashing of their subpoena as a deprivation of their

“right to compulsory process and . . . to present a defense, as guaranteed by the

United States Constitution.” PA280, n.47 (Swartz App. Div. Br. at 34, n.47).14

Specifically, Defendants explained that there was “every reason to believe that the

statements . . . were at odds with the directors’ trial testimony.” PA286-87 (Swartz

App. Div. Reply Br. at 12-13). The prosecution defended the quashing of the

subpoena on two principal grounds. First, it contended that Defendants’ subpoena

had been a “fishing expedition” and therefore failed to satisfy the Gissendanner

threshold for enforcement. PA292-93 (Prosecution Appellate Division Brief at

261-62). Alternatively, it argued that the materials were protected from disclosure

by the opinion work-product privilege. PA298 (Prosecution App. Div. Br. at 269).

14
In order to avoid duplication, Petitioner and his co-Defendant did not separately brief issues
that were relevant to each of their appeals. Thus, although counsel for Swartz briefed the
subpoena issue, Petitioner explicitly joined in “Swartz’s arguments about the trial court’s errors
in: refusing to enforce the subpoena issued to the Boies firm.” PA 274 (Kozlowski App. Div.
Br. at 179).
6495321.4
27
The Appellate Division affirmed. With respect to the quashing of the

subpoena, it said only that the trial court had not “improvidently exercise[d] its

discretion . . . since the documents sought were not material and exculpatory.”

Kozlowski, 47 A.D.3d at 120. The court did not address the prosecution’s

alternative argument that the documents were protected from disclosure as opinion

work product.

The Appellate Division also rejected Defendants’ challenges to the

sufficiency of the evidence. For example, the court characterized Defendants’

legal argument that they were contractually entitled to the sums they received as “a

question of fact for the jury . . . .” Id. at 115.

The Appeal to New York’s Highest Court


Defendants sought and received rarely granted leave to appeal to the state’s

highest court, the New York Court of Appeals.15

On appeal, Defendants again emphasized that the quashing of the subpoena

violated their constitutional rights. See PA318, PA325-26 (Swartz Court of

Appeals Brief at 35, 42-43); see also PA 331 (Prosecution Court of Appeals Brief

at 159) (“Swartz claims that he ‘has a constitutional right to compel disclosure of

15
In 2008, the year Petitioner obtained leave from the Court of Appeals, the court granted leave
in only 53 of 2,637 criminal cases, or 2%. N.Y. Court of Appeals, Annual Report of the Clerk of
the Court 2008, available at http://www.nycourts.gov/ctapps/news/annrpt/AnnRpt2008.pdf, at 7.
6495321.4
28
material evidence from a third party’”).16 Defendants focused on the Supreme

Court’s decisions in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (holding that due

process was violated by quashing a criminal defendant’s subpoena for confidential

files of a state agency that investigates claims of child abuse), and Davis v. Alaska,

415 U.S. 308 (1974) (holding that Sixth Amendment right to present a defense

outweighed countervailing privacy interest). See PA325-26 (Swartz Ct. App. Br.

at 42-43). Defendants also challenged the legal sufficiency of the evidence.

In response, the prosecution argued that Defendants’ subpoena sought only

“general credibility” evidence and therefore did not satisfy Gissendanner. PA335-

41 (Prosecution Ct. App. Br. at 166-72). The prosecution argued alternatively that

even if the subpoena did satisfy the Gissendanner standard, it was nevertheless

unenforceable because the materials sought were pure opinion work product and

therefore protected from disclosure. PA341-48 (Prosecution Ct. App. Br. at 172-

79.

The prosecution did not ask the court to sustain the quashing of the subpoena

if it were to conclude that the materials were only qualifiedly protected litigation

materials. In other words, the prosecution did not dispute that Defendants should

16
Although the subpoena issue was discussed more expansively in the brief of Defendant
Swartz, Mr. Kozlowski’s brief articulated that he joined in all of Swartz’s arguments, “including
but not limited to . . . the trial court’s error in refusing to enforce the subpoena issued to the
Boies firm.” PA309 (Kozlowski Court of Appeals Brief at 81).
6495321.4
29
have received the materials if the materials were not opinion work product. Thus,

the prosecution did not suggest, at any point in the appellate process, that

Defendants failed to meet the statutory conditions for disclosure of materials

prepared in anticipation of litigation, that Tyco had a right to qualified protection

for its litigation materials that could outweigh Defendants’ need for potentially

exculpatory impeachment materials, or that Defendants should themselves have

interviewed the directors (either before or after the indictment was issued) as a

condition to the enforceability of the subpoena.

The New York Court of Appeals’ Decision


The Court of Appeals’ opinion started with a discussion of the nature of the

evidence and included the statement that various “procedures were not employed”

by Defendants in connection with their receipt of the bonuses. Kozlowski, 11

N.Y.3d at 231. However, the opinion did not explicitly state its rejection of

Petitioner’s legal sufficiency claim, much less a specific reason for rejecting that

claim.

With respect to the subpoena, the court decided the principal disputed issues

in Defendants’ favor. First, disagreeing with the Appellate Division, it found that

Defendants had satisfied the Gissendanner standard by proffering facts that

supported an inference that it was “reasonably likely” the subpoenaed notes

6495321.4
30
contained “material that could contradict the statements of key witnesses for the

People.” Kozlowski, 11 N.Y.3d at 243. The court explained that the subpoena

sought “specifically identified statements made by the director-witnesses regarding

key issues in the case.” Id. at 241-42. The opinion went on to explain why the

subpoenaed interview notes had genuine potential to undercut the prosecution:

Defendants pointed to undisputed facts, arguing that after


the directors were made aware of at least some of the
defendants’ questionable activities through the Boies
Schiller investigation, they continued to permit Swartz to
exercise substantial authority as the CFO of Tyco until
September 11, 2002 – the day before he was indicted –
and voted to pay him $50 million in severance just one
day after the last of the relevant director interviews.
Id. at 243.

Second, the court held that the interview notes were not protected by the

absolute privilege for opinion work product, but constituted only qualifiedly

protected materials prepared in anticipation of litigation, discoverable upon a

showing of substantial need and inability to obtain their substantial equivalent. Id.

at 244-45.

Then, having explicitly knocked the entire foundation out from under the

trial court’s and Appellate Division’s analyses of the subpoena issue, the court then

went in a direction that no party (or amicus) had urged. Based upon a line of

reasoning that the court apparently came up with on its own, it affirmed the

6495321.4
31
quashing of the subpoena. Specifically, the court said that the materials sought

were prepared by BSF in anticipation of litigation and that Defendants were

therefore statutorily required to show an inability to obtain the “substantial

equivalent” of those materials, prior to subpoena enforcement. The court went on

to hold that Defendants’ failure to seek interviews with the Director-Witnesses was

fatal, on the theory that such interviews could have yielded the substantial

equivalent of the directors’ statements to Tyco. Id. at 245. In this fashion, the

court latched onto an aspect of the trial court’s opinion which, as described above,

had been inconsequential to its decision to quash,17 and elevated that advisory or

alternative aspect of the decision into the high court’s only basis for upholding the

Defendant’s loss of access to concededly important impeachment material. Id. at

245-46. Thus, the court affirmed the quashing of the subpoena based on an

argument that had not been proffered by the prosecution to any court.

In a footnote, the court said it would not address Defendants’ constitutional

subpoena claim, asserting that “defendants did not raise a constitutional argument

in support of their subpoena below. Id. at 242, n.11. In the same sentence of the

text that contained the footnote, the court cited the Supreme Court’s opinions in

17
As noted above, the trial court’s decision to quash was: (1) required by its conclusion that the
subpoena was a fishing expedition (a holding rejected by the Court of Appeals); and (2)
supported by its conclusion that the materials were opinion work product (a finding rejected by
the Court of Appeals).
6495321.4
32
Ritchie, 480 U.S. 39, and United States v. Nixon, 418 U.S. 683 (1974), as binding

authority for the proposition that it must consider Defendants’ “right to a fair trial.”

Kozlowski, 11 N.Y.3d at 242. The content and theme of the specific page which

the court cited from the Ritchie opinion is explicitly constitutional. 480 U.S. at 56

(holding that criminal defendants have a Sixth Amendment right to “put before a

jury evidence that might influence the determination of guilt” and concludes that a

defendant’s right to subpoena confidential records is “properly . . . considered by

reference to due process”). The theme of the specifically cited page of Nixon is

also clearly constitutional. 418 U.S. at 711 (observing that “[t]he right to the

production of all evidence at a criminal trial similarly has constitutional

dimensions” and that the “Sixth Amendment explicitly confers upon every

defendant in a criminal trial the right . . . to have compulsory process”). In

addressing Defendant’s “right to a fair trial,” the New York court went on to weigh

the “competing considerations” that the Ritchie decision mandates. Kozlowski, 11

N.Y.3d at 242-43.18

18
Indeed, there was no reason for the Court of Appeals to cite Supreme Court authority other
than to address constitutional issues. Similarly, Gissendanner, emphasized by the Court of
Appeals as the leading New York case on the standard for subpoena enforcement, is itself based
on federal constitutional principles. 48 N.Y.2d at 548. Gissendanner holds that although
enforcement of subpoenas for “general credibility” evidence may be left to the sound discretion
of trial courts, requests for “access . . . to otherwise confidential data relevant and material to the
determination of guilt or innocence” “must” be afforded. Id. In fact, the Gissendanner opinion
cites Davis, 415 U.S. at 316, for the principle that evidence material to witness credibility, e.g.,
6495321.4
33
After explicitly recognizing the relevance and importance of the materials, to

the defense, the court held that Defendants were not entitled to production because

Defendants had themselves not attempted to interview the Director-Witnesses at an

“earlier time.” Id. at 245-46. Although the Court of Appeals never explicitly

defined the phrase, it had to refer to the period before September 12, 2002 – the

date on which both Defendants were criminally charged with stealing from the

company. Indeed, given that the directors testified in the grand jury that

Defendants’ bonuses were unauthorized, by the date the indictment was handed up

the directors had already “changed their tune” and adopted the prosecution’s view

of the propriety of the bonuses. Thus, to the extent there can ever have been a time

when director statements “substantially equivalent” to the pre-indictment

statements made to BSF might have been obtainable, this could only have been

before the indictment was returned.19 In other words, the New York Court of

Appeals held that Defendants would be deprived of compulsory process to obtain

“biases, prejudices or ulterior motives,” falls into the category of evidence that must be
disclosed, even when “otherwise confidential.” Id.
19
Furthermore, as we argue below, the notion that a witness’ answers to one party’s questions
are the substantial equivalent of the same witness’ answers to an adverse party’s questions is
inconsistent with the premise of our judicial system that witnesses say different, and potentially
inconsistent things to different parties at different times. Indeed, this is why our system of
justice relies on cross-examination to unearth the truth and imposes obligations such as those
mandated by the Jencks Act, 18 U.S.C. § 3500 (1957).
6495321.4
34
evidence having genuine potential to undercut the central allegation against them,

because they did not seek to investigate that allegation at a time before it existed.

The Motion to Reargue


By motion dated November 12, 2008, Defendants moved to reargue the

Court of Appeals’ Order. Petitioner explicitly incorporated the motion papers

submitted by co-defendant Swartz. Among other grounds for reargument,

Defendants pointed out that the court had erected a barrier against Defendants’

access to important evidence, based on Defendants’ purported failure to seek their

own discovery to defend a criminal case, “even before the time [they became] a

party [to that case].” PA355 (Memorandum of Law in Support of Mark H.

Swartz’s Motion for Reargument at 5). Defendants argued that “before the

indictment was handed down, [they] had no reason to interview the directors.”

PA352 (Id. at 2).

In opposition, the prosecution appeared to concede that the Court of

Appeals’ use of the phrase “earlier time” did indeed mean that the court was

imposing an obligation on Defendants to seek equivalent statements, for use in the

criminal case, before the criminal case existed. The prosecution defended such a

requirement (for the first time), arguing that Defendants should have tried to

conduct pre-indictment interviews. Thus, the prosecution labeled as “without

6495321.4
35
merit” Defendants’ argument that they had “no ‘reason’ to interview the directors

and no idea what ‘questions’ to explore with them” before they were indicted.

PA360-61 at ¶8 (Affirmation in Opposition to Motion for Reargument at ¶8). On

January 13, 2009, the court denied the motion. Kozlowski, 11 N.Y.3d 904.

The Petition for Certiorari


Defendants petitioned the United States Supreme Court for certiorari. On

June 8, 2009, the Court denied the petition. Kozlowski, 129 S. Ct. 2775.

6495321.4
36
POINT I

MR. KOZLOWSKI’S CONSTITUTIONAL RIGHT TO


PRESENT A DEFENSE WAS VIOLATED WHEN THE
TRIAL COURT QUASHED HIS SUBPOENA FOR THE EARLIEST
RECORDED STATEMENTS OF PROSECUTION WITNESSES.
After being employed for twenty-seven years by Tyco (ten of those years as

the company’s Chief Executive Officer), Mr. Kozlowski was convicted of stealing

money from his employer. The conviction was based largely on testimony from

the Director-Witnesses that they had not approved certain payments, as bonuses or

otherwise, to Mr. Kozlowski. The credibility of the directors’ denials of bonus

approval was thus critical to the determination of guilt or innocence.

The New York Court of Appeals held that Mr. Kozlowski was not entitled to

enforcement of his subpoena for the Director-Witnesses’ first recorded statements

even though, as the court also held, the statements were plainly material to

Petitioner’s defense. Id. at 242-43. Given the court’s explicit finding that the

subpoenaed evidence was material (because it would have enabled Defendants to

have effectively challenged the credibility of the key Director-Witnesses’

testimony on the key subject in dispute) and potentially exculpatory (a conclusion

that follows from Tyco’s continued willingness to repose substantial authority in

Swartz as Tyco’s CFO after the Directors spoke to BSF about the Defendants’

bonus compensation), the court’s ruling that Defendants were nevertheless not

6495321.4
37
entitled to this important evidence can survive constitutional scrutiny only if, at

absolute minimum, it rests on a rational, non-arbitrary ground. But New York’s

highest court ratified the quashing of the subpoena on grounds that are undeniably

arbitrary – holding that Mr. Kozlowski had waived his right to obtain what the

court found to be consequential impeachment material, merely because Mr.

Kozlowski did not seek the “substantial equivalent” of that impeachment material

(assuming, incorrectly, that there can be a “substantial equivalent” of a prior

inconsistent statement) at a time before the larceny charge that he sought the

subpoenaed documents to defend against had been brought.

As the United States Supreme Court has repeatedly held, there are two

elements of a right to present a defense claim. First, the evidence that is excluded

(or which the Defendant is deprived of the ability to access) must be “material.”

And second, the reasons for the exclusion or denial of right to access may not be

“‘arbitrary or disproportionate’ to the purpose that the rule is designed to serve.”

Jimenez v. Walker, 458 F.3d 130, 146-47 (2d Cir. 2006) (summarizing several

holdings of the United States Supreme Court, including Taylor v. Illinois, 484 U.S.

400 (1988); Rock v. Arkansas, 483 U.S. 44 (1987); Crane v. Kentucky, 476 U.S.

683 (1986); and Chambers v. Mississippi, 410 U.S. 284 (1973)).

6495321.4
38
Here, there can be no serious question that Petitioner has satisfied both

elements. With respect to the first element, the New York Court of Appeals found,

as a factual matter, that the evidence sought was likely to have been material to the

defense. With respect to the second element, a court’s imposition of a requirement

for access to important evidence, not stated in the pertinent state statute, whose

effect is also to require a criminal defendant to investigate a criminal case before it

exists, is patently arbitrary.

Thus, by resting the denial of a criminal defendant’s right to obtain material

evidence on such an irrational and arbitrary ground, the New York Court of

Appeals unreasonably applied clearly established federal law, as determined by the

United States Supreme Court, which both: (a) protects a criminal defendant’s

constitutional right to present a defense; and (b) treats arbitrary deprivations of

procedural rights as unconstitutional violations of due process.

A. The Subpoena Sought Specifically Identified Evidence That Was


Likely to Be of Significant Impeachment Value to the Defense.
At the outset, it deserves emphasis that the subpoena was not the proverbial

“fishing expedition” and, instead, was backed up by thoroughly explained, logical

reasons why the specifically identified statements of the Director-Witnesses were

likely to contain inconsistencies with their testimony regarding bonus payments.

The genuine and significant potential for the subpoenaed statements to have this

6495321.4
39
exculpatory value is, on habeas review, beyond dispute, given the twin factual

findings by New York’s highest court that the statements were “specifically

identified statements made by the director witnesses regarding key issues in the

case” and that these statements were “reasonably likely” to contain “material that

could contradict the statements of key witnesses for the People” (emphasis added)

Kozlowski, 11 N.Y.3d at 242. These findings of fact, favorable to Petitioner, are

entitled to the presumption of correctness on habeas review. See Burden v. Zant,

498 U.S. 433, 436 (1991) (according presumption of correctness to state-court

finding of fact, favorable to the petitioner, that prosecution witness testified against

the petitioner under a grant of immunity); Young v. Dretke, 356 F.3d 616, 629 (5th

Cir. 2004) (concluding that AEDPA mandated deference to state-court fact finding,

favorable to the petitioner, that state would have been unable “to demonstrate good

cause” for the delay in indicting the petitioner); Pinckney v. Keane, 920 F.2d 1090,

1092 n.1 (2d Cir. 1990) (endorsing district court’s deference to state trial court’s

findings of fact, favorable to the petitioner).

Implicit in the materiality element of a right to present a defense claim is a

determination of prejudice. If the withheld evidence “creates a reasonable doubt,”

the materiality element is satisfied. United States v. Agurs, 427 U.S. 97, 112

(1976). In other words, if the withheld evidence, considered in the context of the

6495321.4
40
record, “could have raised a reasonable doubt,” the evidence is constitutionally

material. Justice v. Hoke, 90 F.3d 43, 50 (2d Cir. 1996) (emphasis added)

(granting habeas writ where the excluded evidence “could have raised a reasonable

doubt” by undermining the credibility of important prosecution witness testimony).

See also Ritchie, 480 U.S. at 57 (reaffirming definition of materiality as a

“reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different”); Jones v. Stinson, 229 F.3d

112, 120 (2d Cir. 2000). Given the finding of New York’s high court that the

undisclosed evidence was “reasonably likely” to “contradict the [trial] statements

of key [prosecution] witnesses,” Kozlowski, 11 N.Y.3d at 242, together with that

court’s well reasoned explanation for that finding, there can be no serious question

that the materiality element of Mr. Kozlowski’s claim is satisfied.

B. In Light of the New York Court of Appeals’ Finding That the Materials
Sought Were Potentially Exculpatory (and Therefore of Constitutional
Dimension), Its Decision to Sustain the Quashing of the Subpoena Based
on an Expansive Construction of a Civil Procedure Discovery Statute
Violated Mr. Kozlowski’s Constitutional Rights.

Given the finding of New York’s highest court that the statements sought by

Petitioner had significant exculpatory potential, and in light of the court’s holding

that the statements were not, as a matter of New York law, protected from

6495321.4
41
disclosure as opinion work product, there is simply no question, under both New

York and federal law, that, at a minimum, court inspection of the statements was

mandatory. See Gissendanner, 48 N.Y.2d at 548–49 (stating that “access must be

afforded to otherwise confidential data relevant and material to the determination

of guilt or innocence” and citing Davis, 415 U.S. at 316, for principle that evidence

bearing negatively on prosecution witness credibility falls into the category of

evidence that must be disclosed) (emphasis added); see also Ritchie, 480 U.S. at

57-58 (holding that where criminal defendant issued subpoena for qualifiedly

confidential “verbatim statements” of prosecution witnesses, due process required

court inspection of the statements to determine if they contained “information that

probably would have changed the outcome of his trial.”); Davis, 415 U.S. at 318

(holding that where a petitioner was “denied the right of effective cross-

examination, error would be ‘constitutional error of the first magnitude’” (quoting

Brookhart v. Janis, 384 U.S. 1, 3 (1968)).

Rather than heed these binding principles, the New York Court of Appeals

immersed itself in a sea of confusion when it imagined it had unearthed a basis for

affirming the quashing of the subpoena that was never argued by the prosecution.

As described above, the court looked to C.P.L.R. § 3101(d)(2), a New York civil

discovery statute that governs access by one party to litigation materials prepared

6495321.4
42
by another party to that same litigation. As demonstrated below, the New York

Court of Appeals’ holding that Petitioner failed to satisfy the requirements of

3101(d)(2) was incorrect, as he plainly satisfied all of its conditions for access to

litigation materials. But more fundamentally, the statute did not even apply to

Petitioner.

N.Y. C.P.L.R. § 3101(d)(2), by its express terms, does not apply to criminal

cases generally nor to Petitioner specifically in the case at bar. Article 31 of the

C.P.L.R. is New York’s civil discovery statute.20 It governs disclosure between

and amongst litigants in civil cases. The statute refers to the actual litigants upon

whom the statute imposes disclosure obligations as “parties.” Others, from whom

disclosure may also be sought, are referred to as “persons.” See, e.g., C.P.L.R.

§ 3101(a)(1)(2)(3) and (4). C.P.L.R. 3101(d), the sub-section that the New York

Court of Appeals found applicable to Petitioner’s subpoena to BSF, governs the

disclosure, or non-disclosure, of materials that the parties to a litigation create in

the course of litigating against each other. It has no application to the materials,

documents or reports sought from non-parties to the litigation. See Milone v.

General Motors Corp., 84 A.D.2d 921 (4th Dept. 1981) [(“Except where the

pending litigation arose from the prior case . . . material prepared for related

20
New York’s rules for discovery in criminal cases are set forth in a completely different statute,
Article 240 of the Criminal Procedure Law.
6495321.4
43
litigation is treated as if it is not prepared for the case at bar” (3A Weinstein-Korn-

Miller, N.Y.Civ.Prac., ¶ 3101.51; emphasis added)]; see also Fireman’s Ins. Co. of

Newark, N.J. v. Gray, 41 A.D.2d 863 (3d Dept. 1973) [ordering disclosure of

litigation material because “[a]n investigation conducted to defend an insured

against a possible legal action is not material prepared for legal action against the

insurer himself” (Collins v. Jamestown Mut. Ins. Co., 32 A.D.2d 725)].

Neither BSF nor Tyco were parties, as that word is used in § 3101, to People

v. Kozlowski and Swartz, the case in which the subpoena to BSF was issued. The

qualified protections afforded by § 3101(d)(2) to a “party” for its litigation

preparation material were and are therefore wholly inapplicable to Tyco and BSF.

Petitioner was not seeking BSF interview notes for use in a litigation against Tyco.

He sought the notes to defend himself against criminal charges in a case being

prosecuted by the District Attorney. If there is any possible misunderstanding that

C.P.L.R. § 3101(d)(2) had no applicability to Petitioner’s subpoena to BSF, a

reading of the last sentence of the section should be dispositive. It provides: “In

ordering discovery of the materials when the required showing has been made, the

court shall protect against disclosure of the mental impressions, conclusions,

opinions or legal theories of an attorney or other representative of a party

concerning the litigation.” (Emphasis added.) The litigation referred to is without

6495321.4
44
question a reference to the litigation between the parties in which the disclosure is

being made. Petitioner’s subpoena was not issued in connection with litigation

between Petitioner and Tyco and did not seek disclosure from the only other party,

the state, or its counsel, the District Attorney.

In sum, as argued by Petitioner in the New York Court of Appeals, see

PA322, n.18 (Swartz Ct. App. Br. at 39, n. 18), C.P.L.R. § 3101(d)(2) does not

provide a non-party, like Tyco, with any privilege against disclosure of its

litigation material. Yet, without explanation, and in the face of case law directly

on point, the New York Court of Appeals saddled Petitioner with the obligation to

comply with a statute that, by its plain and unambiguous terms, is inapplicable. In

doing so, it prevented Petitioner from obtaining the Director-Witness interview

notes and stripped him of his constitutionally protected right to effectively confront

those witnesses.

Moreover, as explained below, even if C.P.L.R. § 3101(d)(2) could be

understood to apply here, there cannot have been a legitimate dispute that

Petitioner easily satisfied all of the requirements set forth in that statute for access

to litigation materials. The criterion that the Court of Appeals said Petitioner failed

to satisfy is imaginary: it is not set forth anywhere in the statute. For that reason

alone, the criterion is therefore plainly arbitrary. Moreover, as we also explain

6495321.4
45
below, the criterion is profoundly arbitrary for a second, more fundamental reason

– it required Petitioner to defend the criminal case before it existed.

But before coming back to the requirements of C.P.L.R. § 3101(d)(2) – real

and imagined – a predicate question that must be considered (and which the New

York courts ultimately side-stepped) is whether the requirements imposed by New

York’s civil discovery statute can be applied mechanistically to a criminal

defendant who seeks evidence that may help him to establish his innocence. As

explained below, the Supreme Court has repeatedly held that a criminal

defendant’s need for evidence is a profound constitutional value and therefore,

when other, non-constitutional interests (e.g., procedural or evidentiary rules) clash

with this value, the non-constitutional interests must not be construed expansively.

Here, the New York court violated this principle when, confronted by what the

court recognized to be a criminal defendants’ genuine need for important

impeachment material, it nevertheless construed the countervailing non-

constitutional interest – New York’s civil statute providing qualified protection to

litigation materials – expansively.

As the Supreme Court recently said when affirming its seminal holding in

Nixon, “privilege claims that shield information from . . . a criminal trial are not to

be ‘expansively construed’ for they are in derogation of the search for truth.”

6495321.4
46
Cheney v. United States District Court, 542 U.S. 367, 384 (2004) (emphasis

added). The Court went on to explain:

The need for information for use in civil cases, while far
from negligible, does not share the urgency or
significance of the criminal subpoena requests in Nixon.
As Nixon recognized, the right to production of relevant
evidence in civil proceedings does not have the same
‘constitutional dimensions.’

Id. Indeed, as the Supreme Court originally explained the concept in Nixon, “when

the ground for asserting privilege as to subpoenaed materials sought for use in a

criminal case is based only on the generalized interest in confidentiality, it cannot

prevail over the fundamental demands of due process of law in the fair

administration of criminal justice.” Nixon, 418 U.S. at 713; see also United States

v. Leon, 468 U.S. 897, 900-01 (1984) (recognizing the importance of “procedures

under which criminal defendants are ‘acquitted or convicted on the basis of all the

evidence which exposes the truth’” (quoting Alderman v. United States, 394 U.S.

165, 175 (1969)); United States v. Libby, 432 F. Supp. 2d 26, 47 (D.D.C. 2006)

(explaining that “a criminal defendant’s right to the production and presentation of

evidence during a criminal trial” is “rooted in history and the Constitution”).

Thus, in Nixon, the Court held that a “demonstrated, specific need for

evidence in a pending criminal case” required enforcement of a subpoena issued to

the President of the United States for recordings of conversations between the

6495321.4
47
President and his advisers that were protected by executive privilege. 418 U.S. at

713. As the Court explained further, “privilege claims that shield information

from . . . a criminal trial are not to be expansively construed, for they are in

derogation of the search for truth.” Id. at 710. And thus, “allowance of the

privilege to withhold evidence that is demonstrably relevant in a criminal trial

would cut deeply into the guarantee of due process of law and gravely impair the

basic function of the court.” Id. at 712.

The New York Court of Appeals merely paid lip service to these principles

(e.g., citing Ritchie and Nixon for its obligation to “give due regard to the

accused’s right to a fair trial” and stating its intention to “strike an appropriate

balance between the rights and interests of . . . corporations . . . and the accused”).

Kozlowski, 11 N.Y.3d at 242, 243. But ultimately, the Court of Appeals explained

its ruling as deriving from its perception that Petitioner failed to fulfill the

requirements imposed by the civil discovery statute, as if Petitioner’s status as a

criminal defendant were irrelevant to the application of the civil discovery statute

in a criminal case. Id. at 245-46. By ultimately making its determination of the

subpoena’s enforceability based only on Petitioner’s purported failure to comply

with a civil discovery statute, and thereby failing to truly and adequately weigh

Petitioner’s status as a criminal defendant in its calculus, the court analyzed

6495321.4
48
Petitioner’s claim without adequately weighting the constitutional significance of

the materials he sought.

In sum, Petitioner sought to obtain materials that would have enabled him to

challenge the credibility of key prosecution testimony and therefore, New York

and federal law required that his subpoena be analyzed as a request to obtain

materials of constitutional significance. The New York court, by ruling on

Petitioner’s request as if he were merely a civil litigant, unreasonably applied

Supreme Court precedent that, when properly understood, required New York’s

courts to treat the subpoenaed materials as constitutionally significant and

prohibited the courts’ expansive construction, against a criminal defendant, of

Tyco’s statutory privilege claim.

C. Under the Plain Terms of New York’s Statute Governing Access to


Litigation Materials, Petitioner Was Entitled to Obtain the
Subpoenaed Documents.
As argued above, even if New York’s courts believed that 3101(d)(2) was

applicable and that Defendants had not complied perfectly with every requirement

set forth in that statute, the courts should not have denied disclosure on that basis

alone and, instead, should have applied more liberal disclosure standards, given

that Defendants needed the evidence to challenge the testimony offered to prove a

criminal accusation. When faced with the choice of whether to treat either

6495321.4
49
Defendant’s constitutional right or Tyco’s statutory interest deferentially, the court

should have chosen Defendants’ right. But even without considering Petitioner’s

status as a criminal defendant, it is undeniable that Petitioner fulfilled all of the

requirements imposed by the statute for access to the materials, even if the statute

were applicable here. And while the technical correctness of New York courts’

rulings on New York law is not directly before this Court, Mr. Kozlowski’s

entitlement to enforcement of his subpoena under state law is nevertheless

pertinent to an understanding of Mr. Kozlowski’s constitutional claim. As

demonstrated below, it sheds light on the extent to which the New York high

court’s stated reason for depriving Mr. Kozlowski of important evidence was

utterly arbitrary.

1. Petitioner Met the “Substantial Need” Test, as the Court of


Appeals Implicitly Found.
As described above, under New York’s civil discovery statute, C.P.L.R. §

3101(d)(2), materials “prepared in anticipation of litigation” are discoverable

“upon a showing that the party seeking discovery has substantial need of the

materials in the preparation of the case and is unable without undue hardship to

obtain the substantial equivalent of the materials by other means” (emphasis

added). The New York Court of Appeals did not explicitly discuss whether

Petitioner met the statute’s first requirement of demonstrating a “substantial need”

6495321.4
50
for the materials. However, by holding that Petitioner satisfied the Gissendanner

specificity and materiality standards (e.g., that the specific statements were

“reasonably likely” to contain “material that could contradict the statements of key

[prosecution] witnesses”), the court implicitly found that he had demonstrated a

substantial need for the subpoenaed materials. Therefore, the only remaining

question – as to the facial application of 3101(d)(2) – was whether Petitioner, at the

time he subpoenaed the materials from Tyco, had shown that he was then “unable”

to obtain the “substantial equivalent” of the materials he sought. At no point prior

to the time that New York’s highest court issued its decision did the prosecution

ever argue that Petitioner had failed this requirement. Indeed, as demonstrated

below, Petitioner easily satisfied it.

2. Petitioner Demonstrated His Inability to Obtain the “Substantial


Equivalent” of the Subpoenaed Statements.
The requirements imposed by the New York statute for obtaining litigation

materials have traditionally been understood to set an easily met threshold for

disclosure. The law favors “liberal” disclosure upon a showing that the requesting

party “has need of relevant materials and can’t duplicate them.” Connors, Practice

Commentaries, 7B McKinney’s C.P.L.R., C:3101:29, at 78 (2005 ed.); see also

Spectrum Sys. Int’l Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991) (holding

that “the burden of establishing any right to protection is on the party asserting it;

6495321.4
51
the protection claimed must be narrowly construed; and its application must be

consistent with the purposes underlying the immunity”). Given New York’s

traditionally liberal approach to the disclosure of litigation materials, disclosure has

unsurprisingly been ordered in innumerable circumstances. See, e.g., Drizin v.

Sprint Corp., 3 A.D.3d 388 (1st Dept. 2004) (ordering disclosure of records

relating to telephone scam belonging to investigator hired by plaintiff’s counsel);

Yasnogordsky v. City of New York, 281 A.D.2d 541, 541 (2d Dept. 2001) (holding

that “where the statement of a nonparty-witness is inconsistent in a material respect

with his or her testimony at a deposition, the statement should be disclosed

pursuant to . . . CPLR 3101(d)(2)”); Goldberg v. Hirschberg, 10 Misc. 3d 292, 299

(N.Y. County Sup. Ct. 2005) (finding that “defendants clearly have a ‘substantial

need’ for the material [attorneys’ notes of proffer sessions]”).

In any event, there were at least three specific, independent reasons why

Petitioner must be considered to have made the showing of his inability to obtain

the equivalent of the documents he subpoenaed.

a. Prior Inconsistent Statements Are Unique, Not Replicable.


Petitioner was unable to obtain a “substantial equivalent” of the documents

because they were sought as prior inconsistent statements, see Kozlowski, 11

N.Y.3d at 243 (describing the documents sought as “material that could contradict

6495321.4
52
the statements of key witnesses for the People”), a category of evidence that, by

definition, has no equivalent. As Supreme Court Justice Byron White explained

more than thirty years ago:

In the main, where a party seeks to discover a statement


made to an opposing party in order to prepare for trial, he
can obtain the ‘substantial equivalent’ by other means,
Fed. Rule Civ. Proc. 26(b)(3), i.e., by interviewing the
witness himself. A prior inconsistent statement in the
possession of his adversary, however, when sought for
evidentiary purposes – i.e., to impeach the witness after
he testifies – is for that purpose unique.

United States v. Nobles, 422 U.S. 225, 248 (1975) (White, J., concurring);

Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1969) (rejecting the

“rigid rule” that a party seeking to subpoena recorded statements of witnesses from

his adversary “must always show that he has been unable to obtain statements of

his own” from the witnesses whose statements he seeks to subpoena). Indeed,

even if Petitioner had arranged to have his own investigators interview the

witnesses whose prior statements were subpoenaed, and even if the statements

made by the witnesses to Petitioner’s investigators were remarkably similar to the

statements they made months earlier to BSF, the two sets of statements could

nevertheless not be considered legal equivalents. See, e.g., People v. Young, 79

N.Y.2d 365, 370 (1992) (holding that “[s]tatements are not the ‘duplicative

equivalent’ of previously produced statements . . . just because they are

6495321.4
53
‘harmonious’ or ‘consistent’ with them”); see also Flores v. Demskie, 215 F.3d

293, 302 (2d Cir. 2000) (holding that under New York law, two statements are not

‘duplicative equivalents’ of one another if there are any “variations” between

them).

To deny a criminal defendant access to an important prosecution witness’s

prior inconsistent statement, based only on the theory that the criminal defendant’s

own interview of the prosecution witness (had he conducted such an interview)

would have been the “substantial equivalent” of the already recorded prior

inconsistent statement, thus flies in the face of logic and is contrary to precedent.

Our judicial system allows for no assumption that a statement given by a witness to

one party (e.g., Tyco) would be the equivalent of the witnesses’ statement to

another party with a different interest (e.g., Kozlowski, who was adverse to Tyco

in civil litigation). In fact, our legal system assumes precisely the opposite:

witnesses tell different stories to different parties at different times. This is why

cross-examination is fundamental to our system of justice and why prior witness

statements in the possession of the prosecution must be turned over to the defense,

an obligation that is not conditioned on a showing, by the defense, of an inability to

conduct their own interview of the witness. N.Y. C.P.L.R. § 240.44 (codifying

holding of People v. Rosario, 9 N.Y.2d 286 (1961)).

6495321.4
54
In this respect, federal law is identical to New York law. See Jencks v.

United States, 353 U.S. 657, 667 (1957) (holding that to deny a criminal defendant

access to prior statements that might be used to impeach a witness is to “deny the

accused evidence relevant and material to his defense.”). And, although Jencks

was not decided on explicitly constitutional grounds, its holding plainly has

constitutional underpinnings. See Palermo v. United States, 360 U.S. 343, 362-63

(1959) (Brennan, J., concurring) (“[I]t would be idle to say that the commands of

the Constitution were not close to the surface of the [Jencks] decision.”). In sum,

prior inconsistent statements of witnesses, particularly when they are sought for

use in a criminal case, are unique and therefore not replicable, under both New

York and federal law.

b. The Prior Inconsistent Statements Sought by Defendants


Were Unique for a Second, Case-Specific Reason: They
Were Recorded During a “Window in Time” That Had
Closed by the Time Defendants Were Charged.
The conclusion that the statements sought by Petitioner were not replicable

(and therefore, that the statements should not have been withheld on the ground

that Petitioner could conceivably have duplicated them) is strengthened by the fact

that the statements were made during a unique window in time, before the

witnesses “changed their tune.” Kozlowski, 11 N.Y.3d at 243. That is, the

statements were at a time when the directors, by continuing to employ Swartz in a

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55
high-level, sensitive position, were demonstrating that they believed the bonuses

were not stolen. But by the time of the indictment (when the directors testified for

the prosecution in the grand jury) the directors had already “changed their tune”

about the propriety of the bonuses.

That the passage of time can render evidence unique (and therefore not

replicable) is a principle that New York’s courts have repeatedly endorsed. For

example, in Dimechel v. S. Buffalo Railway Co., 80 N.Y.2d 184 (1992), the Court

of Appeals held that a defendant in possession of surveillance videotapes of the

plaintiff could not resist a subpoena for those tapes on the ground that the plaintiff

would have been able to obtain their substantial equivalent by earlier making its

own visual recordings of itself. As the court explained, the subpoenaed tape was

“unique because it memorialize[d] a particular set of conditions that can likely

never be replicated.” Id.; see also Kaplan v. Einy, 209 A.D.2d 248 (1st Dept.

1994) (finding that photographic and videographic evidence subject to 3101(d) is

discoverable where “they can no longer be duplicated because of a change in the

conditions”); Careccia v. Enstrom, 174 A.D.2d 48, 50 (3d Dept. 1992) (ordering

disclosure of videotape because “condition has changed so much that [the party]

can no longer produce a videotape that would be a substantial equivalent”); Kane

v. Her-Pet Refrigeration Inc., 181 A.D.2d 257, 266 (2d Dept. 1992) (in ordering

6495321.4
56
disclosure of films, explaining that “the conditions that existed at the time the films

were made are almost never the same”). Like videotapes and photographs, BSF’s

interviews with the Tyco directors recorded a unique moment in time that was not

replicable following Mr. Swartz’s and Mr. Kozlowski’s indictments. See

Kozlowski, 11 N.Y.3d at 234-35, 243. Because of the passage of time, even if prior

inconsistent statements could ever be correctly characterized as replicable, the

particular statements sought here emphatically were not.

c. By Finding Only a Past-tense Failure to Obtain the


Substantial Equivalent of the Subpoenaed Statements, New
York’s Courts Implicitly Found That Defendants Met the
Present-Tense Temporal Requirement of the Statute.
The conclusion that Petitioner satisfied the requirements of C.P.L.R. §

3101(d)(2) is independently supported by application of the statute’s temporal

feature. Specifically, the statute requires that a party seeking litigation materials

show a present inability (“is unable”) to obtain their substantial equivalent.

Notably, New York’ courts did not find that Petitioner had failed this test. Instead,

the courts seemed to assume, correctly, that interviews conducted by Defendants in

the post-indictment present could not have been the substantial equivalent of

Tyco’s past interviews. As New York’s highest court recognized, interviews

conducted by Defendants in the post-indictment present would have taken place

under very different circumstances than those conducted by Tyco in the pre-

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57
indictment past, before the Directors “changed their tune.” See Kozlowski, 11

N.Y.3d at 243. However, New York’s courts did not stop there, and instead,

imposed an obligation on Petitioner, not mentioned in the statute itself, to show

that he could not have obtained what it took to be the substantial equivalent of the

subpoenaed statements (his own witness interviews) at an “earlier time.”

In mandating that Petitioner satisfy an “earlier time” test, rather than the

present-tense “is unable” requirement specified in the statute, the Court of Appeals

was not only unfaithful to the words of the statute, but also to New York’s legal

authority which had previously interpreted the statute as imposing only a present-

tense requirement. See, e.g., Lamitie v. Emerson Electric Co., 208 A.D.2d 1081,

1083 (3d Dept. 1994) (enforcing defendant’s subpoena for litigation materials,

holding defendant satisfied the statutory temporal requirement when he showed

that “by the time defendants and the third-party defendants received notice of the

actions against them the opportunity no longer existed” to obtain the subpoenaed

materials); Babcock v. Jackson, 40 Misc. 2d 757, 762 (Sup. Ct. Monroe County

1963) (finding, under previous version of 3101(c), that “any writing or anything

created by or for a party or his agent in preparation for litigation” would be

obtainable where “the material therein contained may no longer be duplicated

because of a change in conditions”).

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58
In sum, the New York statute required only a showing of a present inability

to obtain the statements’ substantial equivalent, prior inconsistent witness

statements are never replicable, and the particular witness statements sought here

were not replicable for the additional reason that they were recorded during a

unique window in time. As such, Petitioner unquestionably made the showing

required by the statute.

The New York Court of Appeals brushed aside the plain language and

structure of C.P.L.R. § 3101(d)(2) and concluded, for the first time, that the statute

applies to subpoenas issued to non-parties and that it contains a silent “earlier

time” test. Although that court is the ultimate arbiter of New York state law, it was

not entitled to allow its novel and expansive application of the civil discovery

statute to override a criminal defendants’ constitutional right to present his defense.

But that is precisely what the court did.

Indeed, it is not a defense to the constitutional violation to say that rules

regulating access to litigation materials are set forth in a state statute. As the

Second Circuit has explained:

The fact that federal habeas corpus relief does not lie for
errors of state law does not mean, however, that errors
under state law cannot result in cognizable violations of a
constitutional right to due process. What due process
requires will often depend on what state law is. States
are free to define the elements of, and defenses to,
6495321.4
59
crimes. Once states have promulgated laws to define
criminal conduct, however, federal due process protects a
defendant from conviction unless he is shown in a fair
proceeding to have violated those laws.

Davis v. Strack, 270 F.3d 111, 123 (2001).

As discussed more thoroughly below, the New York Court of Appeals’

determination that Petitioner failed to satisfy the requirements set forth in C.P.L.R.

§ 3101(d)(2) for access to litigation materials, was not merely incorrect, but

arbitrary. The determination rested on requirements not present in the statute, and

moreover, on a requirement that imposed upon Petitioner an obligation to

investigate a crime not yet charged. As a result, the court’s ruling was an

unreasonable application of clearly established Supreme Court precedent.

D. The Trial Court Did Not Have Discretion to Quash the Subpoena.
As described above, the trial court’s quashing of the subpoena followed

from its finding that the subpoena rested on nothing more than a “fishing

expedition.” Also, the trial court expressed its view that the materials were

protected as opinion work product – something the trial court incorrectly assumed

Defendants had conceded. But the New York Court of Appeals concluded, with

respect to each of these issues, that the trial court had been in error. Petitioner

made the required materiality showing and the documents sought were not

protected from disclosure as opinion work product. Kozlowski, 11 N.Y.3d at 243,

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60
245. When the Court of Appeals nevertheless affirmed the trial court’s quashing

of the subpoena as an appropriate “exercise of discretion,” even though the high

court had rejected the trial court’s specific finding (fishing expedition) and holding

(opinion work product) that were the bases of its exercise of discretion, the high

court all but placed the determination of the trial court beyond review.

As authority for this exercise of deference to trial court’s “discretion,” the

Court of Appeals cited its own opinion in Gissendanner. But Gissendanner did

not say that a trial court has discretion to quash a subpoena for specific documents

that, as here, are material to the credibility of prosecution witnesses. Instead,

Giddsendanner said the opposite: “access must be afforded to otherwise

confidential data relevant to the determination of guilt or innocence.” 48 N.Y.2d at

548 (emphasis added). Although the Gissendanner Court concluded that there had

been no “abuse of discretion” in that case, it did so only because “nothing better

than conjecture [had] been presented to the court” to support subpoena issuance.

Id. at 550. While Gissendanner thus permitted trial courts to sometimes exercise

discretion with respect to subpoena enforcement, it explained that, within the

context of requests for impeachment materials, such requests are discretionary only

when motivated by “nothing more than impeachment of witnesses’ general

credibility,” as distinguished from “specific biases, prejudices,” etc. Plainly,

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61
Gissendanner provides no license to quash a criminal defendant’s subpoena for

specific, potentially important impeachment materials, without, at a minimum,

court inspection of the documents – something the trial court did not do here.

In sum, the New York Court of Appeals cut the legs out from under the

holding that had supported the trial court’s decision to quash. The court sought to

replace the foundation of the trial court’s ruling with a perceived, but imaginary

statutory requirement that, for the trial court, had been little more than an

afterthought, not instrumental to its decision. In any event, the condition that the

Court of Appeals created for a defendant seeking to subpoena specifically

identified, relevant impeachment materials is unconstitutional.

E. Quashing the Subpoena Violated Petitioners’ Constitutional Rights.


For two related, but independent reasons, Mr. Kozlowski’s constitutional

rights were violated by the quashing of his subpoena. First, as explained above in

subsection “B,” a criminal defendant’s right to use compulsory process to obtain

potentially exculpatory evidence is of constitutional dimension and may not be cast

aside, as the New York court did here, based only on an expansive interpretation of

a non-constitutional qualified discovery privilege. Second, the constitutional right

to present a defense includes a right to challenge the credibility of prosecution

witnesses, and this right may not be eviscerated or undercut arbitrarily without

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62
violating the Sixth and Fourteenth Amendment guarantees of the right to present a

defense and to the due process of law. As explained below, the New York high

court’s stated reason for sustaining the quashing of the subpoena was based on its

application of a rule that is so patently arbitrary that it fatally infected the high

court’s ruling.

1. By Conditioning Petitioner’s Right to Access Exculpatory


Materials on a Requirement That was Arbitrary and Served
No Legitimate State Interest, New York’s Courts Violated
Petitioner’s Right to Present a Defense.
A criminal defendant’s right to present his defense is protected by the Sixth

and Fourteenth Amendments. On numerous occasions, the Supreme Court has

held that, “[w]hether rooted directly in the Due Process Clause of the Fourteenth

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.

319, 324 (2006); Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). Although this

constitutional principle does not “confer the right to present testimony free from

the legitimate demands of the adversarial system,” Nobles, 422 U.S. 225,

procedural or evidentiary rules may not be applied in such a way as to have an

“arbitrary or disproportionate” impact on a defendant’s ability to present his or her

defense, Holmes, 547 U.S. at 324; United States v. Scheffer, 523 U.S. 303, 308

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63
(1998); Michigan v. Lucas, 500 U.S. 145, 151 (1991); Rock v. Arkansas, 483 U.S.

44, 55-56 (1987). Arbitrary restrictions that prevent a defendant from obtaining or

utilizing evidence important to his defense are clearly outweighed by a defendant’s

need to obtain and utilize relevant, potentially exculpatory information or

materials. See, e.g., Holmes, 547 U.S. 319; Rock, 483 U.S. 44; Ritchie, 480 U.S. at

39; Delaware v. Van Arsdall, 475 U.S. 673 (1986); Crane, 476 U.S. at 683; Green

v. Georgia, 442 U.S. 95 (1979); Davis, 415 U.S. at 308; Chambers v. Mississippi,

410 U.S. 284 (1973); Smith v. Illinois, 390 U.S. 129 (1968); Washington v. Texas,

388 U.S. 14 (1967); Taylor v. Illinois, 484 US 400, 408 (1988).

The right of an accused to present his defense includes the right to confront

the prosecution’s witnesses, through cross-examination, for the purpose of

challenging their testimony. Chambers, 410 U.S. at 294 (“The rights to confront

and cross-examine witnesses . . . have long been recognized as essential to due

process.”); see also Crawford v. Washington, 541 U.S. 36 (2004); Davis, 415 U.S.

at 316 (“Cross-examination is the principal means by which the believability of a

witness and the truth of his testimony are tested.”). Although the right to confront

and cross-examine may occasionally bow to other “legitimate” interests, where

such an interest is asserted, it must be “closely examined.” Chambers, 410 U.S. at

295. Material that would allow a defendant to challenge the prosecution’s

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witnesses on the subject matter of their testimony falls within the category of

constitutionally significant evidence. Jencks, 353 U.S. at 667; Palermo, 360 U.S.

at 362-63; Davis, 415 U.S. at 318. Even when such materials are ordinarily subject

to a qualified protection for the privacy or confidentiality of a third party, the

constitutional right of a criminal defendant to offer evidence that might influence

the determination of guilt takes precedence. Ritchie, 480 U.S. at 57–58 (holding

that due process was violated by quashing a criminal defendant’s subpoena for

confidential files of a state agency that investigates claims of child abuse), Davis,

415 U.S. at 318 (holding that Sixth Amendment right to present a defense

outweighed countervailing privacy interest). As the Supreme Court summarized in

Ritchie:

[T]he Court has articulated some of the specific rights


secured by [the compulsory process clause] of the Sixth
Amendment. Our cases establish, at a minimum, that
criminal defendants have . . . the right to put before a jury
evidence that might influence the determination of guilt.
480 U.S. at 56.

At the outset, the New York Court of Appeals decision unreasonably applied

this principal of clearly established federal law – that defendants have a Sixth

Amendment right “to put before a jury evidence that might influence the

determination of guilt.” As explained above, by rejecting Petitioner’s subpoena,

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65
based only on his purported failure to satisfy the requirements of the civil

discovery statute, the court did not treat Petitioner’s interest in subpoena

enforcement as a federal constitutional right, as it was required to do.

In many ways, the violation of Petitioner’s rights was even more extreme

than that suffered by the defendant in Ritchie. In that case, the Supreme Court

specifically held that a defendant’s constitutional right to due process required

enforcement of a subpoena, issued to a state agency that investigates the sexual

abuse of children, for “verbatim statements” made by a prosecution witness, even

though the agency’s records were confidential under state law. 480 U.S. at 45, 58.

In reaching this conclusion, the Court emphasized that the state statute did not

provide for “unqualified” confidentiality and, instead, permitted disclosure in

“certain circumstances.” Id. at 57-58. Given the qualified nature of the

confidentiality interest, the Court held that the defendant was “entitled,” as a

matter of due process, to trial court review of the file to determine if it contained

“information that probably would have changed the outcome of his trial.” Id. at

58; see also Rovario v. United States, 353 U.S. 53, 60-61 (1957) (holding that the

confidentiality of a government’s informant must give way to an accused’s right to

defend against criminal charges). If the legitimate confidentiality interests at issue

in Ritchie (information about the sexual abuse suffered by a child) and Davis

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66
(protecting anonymity of juvenile offenders) must yield to a criminal defendant’s

right to present his defense, then plainly, Tyco’s much less weighty interest in the

qualified protection of litigation materials must also yield.

Similarly, the state procedural rule whose application here caused Petitioner

to suffer the loss of access to important evidence is even more arbitrary than the

state law rules whose application was held to violate the due process clause in

Chambers. In that case, the Supreme Court held that the “voucher rule”

(prohibiting a party from impeaching his own witness) “plainly interfered with

Chambers’ right to defend against the state charges.” Id. at 298. The voucher rule,

unlike the requirement imposed by New York’s Court of Appeals that a criminal

defendant investigate a case before it exists, at least had the favorable attribute of

having been gradually developed as a part of the common law and “might have

been [a] logical” rule of evidence in the past. Id. at 296. No such statement can

reasonably be made in defense of the requirement crafted here by the New York

Court of Appeals. Moreover, just as Mississippi did not “defend the [voucher] rule

or explain [it],” id. at 1046-47, New York has never defended or sought to proffer

any legitimate explanation for the existence of the “investigate before being

charged” rule that the New York court crafted and imposed on criminal defendants.

6495321.4
67
Mr. Kozlowski sought to challenge the credibility of critical testimony by

confronting the Director-Witnesses with their earliest recorded statements, made to

Tyco’s private internal investigators about the very subject of their trial testimony.

As the New York Court of Appeals recognized, it was reasonably likely that the

Director-Witness statements, if produced, would have enabled the defense to

“contradict the statements of key witnesses for the People.” Kozlowski, 11 N.Y.3d

at 243. Plainly, this finding of relevance and materiality more than satisfied the

requirement of a “plausible showing” that the subpoenaed materials “would have

been material and favorable to his defense.” See U.S. v. Valenzuela-Bernal, 458

U.S. 858, 873 (1982). And thus, for the reasons explained above, this interference

in Mr. Kozlowski’s ability to mount an effective challenge to the credibility of the

prosecution’s case, e.g., to “contradict the statements of key [prosecution]

witnesses,” is unquestionably of constitutional consequence.

When the New York Court of Appeals ruled that Mr. Kozlowski was not

entitled to the enforcement of a subpoena for evidence having significant

impeachment value, it elevated the qualified privilege held by Tyco (as the

recipient of the subpoena) to keep its litigation materials confidential above

Petitioner’s constitutional right to present his defense. In so doing, the court

unreasonably applied clearly established federal law, as determined by the United

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68
States Supreme Court. When, as here, a criminal defendant seeks to obtain

evidence that has genuine potential to undercut the prosecution’s case, and the only

ground cited as a basis for quashing a subpoena for such evidence is the protection

of a qualified privilege (e.g., materials prepared in anticipation of litigation), the

qualified privilege must give way to a defendant’s constitutional right to present a

defense. Moreover, when, as here, the extent of the protection granted to materials

purportedly covered by the qualified privileged rests on a court’s invention of a

requirement not found in the statute that defines and regulates access to such

materials, and particularly when the effect of that court-imposed requirement is to

require a defendant to conduct investigative interviews before he is criminally

charged, the application of the qualified privilege is arbitrary and cannot prevail

against a Defendant’s constitutional right to obtain exculpatory impeachment

material.

Thus, there can be no question that the state rules allowed to prevail over

Petitioner’s rights were arbitrary. By requiring Petitioner (as a condition of later

subpoena enforcement) to have undertaken to defend the future case against him

(by seeking witness interviews), before the case even existed, New York turned the

justice system upside down. Public prosecutors make accusations, and only then is

the subject of those accusations required to defend himself. No plausible,

6495321.4
69
legitimate state interest is served by requiring putative criminal defendants to

investigate criminal cases before they exist. New York’s highest court stumbled

upon the imposition of such a requirement – but imposed it nevertheless – as part

of an effort to find a basis to sustain a lower court ruling whose underpinnings it

had rejected. In so doing, the Court of Appeals founded its determination on a

requirement so arbitrary that it violated Petitioner’s constitutional due process right

to obtain evidence to which he was constitutionally and statutorily entitled.

F. The Error Was Not Harmless.


On habeas review, the standard for evaluating whether “harm” resulted from

a violation of a constitutional right is whether the violation “had a substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahmson, 507 U.S. 619, 638 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946). The trial court’s erroneous refusal to require disclosure of

the Director-Witness statements plainly had such an effect. Indeed, this conclusion

is a necessary corollary of the New York Court of Appeals’ finding that the

specific subpoenaed documents were “reasonably likely” to contain “material that

could contradict the statements of key witnesses for the People.” Kozlowski, 11

N.Y.3d at 243. Moreover, because the materiality prong of a right to present a

defense claim has a prejudice component, a determination of materiality makes it

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70
redundant to conduct a separate analysis of harmlessness under Brecht. See Jones

v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000). In other words, because a finding of

materiality necessarily includes a determination that the withheld evidence could

have created a reasonable doubt, the deprivation of access to material evidence

cannot be harmless. As New York’s highest court found, here, the statements, had

they been disclosed, were reasonably likely to have enabled the defense to

“contradict” important testimony by “key” prosecution witnesses. Therefore, the

deprivation of access to those important statements was self-evidently injurious to

Mr. Kozlowski. A brief analysis of the evidence in this case serves to underscore

this conclusion.

In many criminal cases – particularly white collar cases involving dense

corporate documents – a highly effective method of exposing the truth is by

reference to the witnesses’ statements made before any motive to fabricate arises.

This principle was never more applicable than in this case. The evidence against

Petitioner was almost wholly circumstantial. There was no cooperating witness

who revealed a corrupt plan. No witness testified that Mr. Kozlowski ever asked

him or her to lie or to camouflage any transaction, or that Mr. Kozlowski ever

made an incriminating statement. The bonuses appeared in Tyco’s books and

records and were known by dozens of people, including the heads of several Tyco

6495321.4
71
departments as well as Tyco’s outside auditors. See PA74-94 (Tr.2 9381-401);

PA99-105 (Tr.2 13339-45); PA229 (A424); PA117-18 (AD4284-85). For these

reasons, the strongest evidence against Petitioner was the directors’ testimony that

they did not know of or approve the bonuses. Had Mr. Kozlowski been able to

cross-examine the directors with their own prior statements to BSF about this

subject at a time when Mr. Swartz was actively performing his CFO duties, he

would have been able to undermine their testimony in a most dramatic way.

Furthermore, there can be little doubt that the directors’ trial testimony was

shaped by events that occurred after they were interviewed by BSF in the early

days of the investigation, which underscores the defense’s need for those

documents. See EEOC v. Safeway Store, Inc., 2002 WL 31947153, at *7 (N.D.

Cal. Sept. 16, 2002) (“[T]here is no substitute for the contemporaneous statements

made by those witnesses close in time to the alleged incident.”). Before the

Indictment, the directors had knowingly paid Defendants a sum of nearly $400

million in 1999-2001. PA17 (Tr.2 1459). In 2001, upon hearing Mr. Kozlowski’s

request for an amendment to his retention agreement that would have increased his

benefits by more than $100 million (and Mr. Swartz’s by over $50 million), the

directors responded: “[g]ive him what he wants.” PA38 (Tr.2 3425) (Prue).

6495321.4
72
After Mr. Kozlowski left Tyco in early June 2002, Mr. Swartz remained as

CFO that summer, signing SEC filings, dealing with Tyco auditors, and leading

investor conference calls. Perhaps most significantly, Mr. Swartz was paid more

than $50 million when he left the Company, hardly the send-off typically enjoyed

by a person believed to have been embezzling for years. At that time, the directors

were receiving regular updates about the internal and criminal investigations and

thus they were not laboring under a misunderstanding of Mr. Swartz’s conduct.

However, their tune changed by the time of the indictment, and therefore well

before trial, undoubtedly as a reflection of their own status as civil defendants,

Tyco’s lawsuits against Mr. Kozlowski and Mr. Swartz, the ongoing criminal

investigation, and the post-Enron shockwaves that were reverberating throughout

corporate America.21

Notably, in 2005, the directors had significant trouble remembering the

events of 1999 through 2002.22 Gaps in their memory were often filled by

21
See generally The Evolving Role of General Counsel: Leadership in Challenging Times,
August 2006 NLJ Supp., at 5-6 (comments of former U.S. Attorney James Comey: “we set out
in the summer of 2002 [after Enron, WorldCom and Adelphia] . . . to send a shockwave” of
“deterrence . . . in the white collar arena” through aggressive prosecutions).
22
See, e.g., PA59-60 (Tr.2 8521-22) (Slusser stating he was unable to recall 2002 controversy
over General Counsel Mark Belnick’s compensation); PA33 (Tr.2 2466) (former Compensation
Committee Chairman Walsh testifying, on direct, about how Committee set fiscal 2000 growth
hurdles: “To be honest with you it is very difficult for me to reach back and pull one year out of
my memory.”); PA43-44 (Tr.2 5079-80) (Foss testifying about FLAG bonus, which was the last
one received: “I don’t have a complete recollection of it. It’s a long time ago.”); PA49 (Tr.2
6495321.4
73
information that they obtained from the investigation itself. Director Slusser, for

example, testified that he recalled two bonuses related to Tyco’s “FLAG”

transaction, even though there was no dispute that only one such bonus had been

paid. He explained why he believed there had been a second, “unauthorized”

bonus:

Q: And can you tell us what is the basis of your


understanding that Mr. Swartz, Mark Swartz
received two bonuses related to the FLAG
transaction?

A: Well sir, part of the allegations here is that he


received an unauthorized bonus for the FLAG
transaction, he --

* * *
Q: So your testimony is that your reason for believing
there are two separate bonuses is because of the
charges in this case, is that your testimony?
A: Well, that sir is one of the major allegations in this
case.

PA65 (Tr.2 8813).23 On this record, there is little doubt that the interview notes

would have made this a very different trial.

7668) (Pasman: “I don’t recall how the [bonus] formula specifically works, so I cannot respond
to that.”).
23
See also PA69 (Tr.2 8817) (Slusser testifying he only learned of the “unauthorized” bonus by
“listen[ing] to the attorneys representing the internal investigation at Tyco who I believe
unearthed” it) (emphasis added); PA28 (Tr.2 2334) (Fort testifying that “I did not have a
complete [understanding of the bonuses] until we got a full Boies report”); PA54 (Tr.2 7895)
(prosecutor noting that director Pasman learned of the “thefts” “during the Boies investigation”).
6495321.4
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The civil case involving allegations of excessive compensation paid to

former New York Stock Exchange chairman Richard Grasso amply demonstrates

the point. See People ex rel. Spitzer v. Grasso, No. 401620/04 (N.Y. Co. Sup. Ct.

April 11, 2006). Following Mr. Grasso’s resignation, the NYSE commissioned an

attorney to conduct an internal investigation and to report his findings. The results

of the investigation formed the basis of the Attorney General’s lawsuit claiming

that Mr. Grasso had manipulated the NYSE board into paying him exorbitant

compensation through “incomplete, inaccurate and misleading” information. The

trial court ordered disclosure of the interview notes from the internal investigation.

Tellingly, the notes revealed dramatic inconsistencies between what the

directors had said about Mr. Grasso’s compensation in their interviews and what

the Attorney General’s Office ultimately alleged in its complaint. See Kimberley

A. Strassel, “Behind the Spitzer Curtain,” Wall Street Journal, June 14, 2005, at

PA197-201 (A217-21). The notes reflected that “[k]ey directors admit[ted] that

they knew exactly what they were doing in paying Mr. Grasso as they did.”

PA197 (A217). One director acknowledged that “[w]e knew what we were doing

when we paid him. We did it purposely, and we believed it was the right

compensation.” Id. And another director observed that anyone who “indicates that

there was opposition at the time to entering into the deal [to pay Grasso the

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requested compensation] . . . is practicing ‘revisionist history.’” PA199 (A219)

(emphasis added).

Here, too, there is a strong likelihood that the undisclosed statements would

have exposed the directors’ trial testimony as “revisionist history.” Although it

was Mr. Swartz, rather than Mr. Kozlowski, who remained as CFO and was paid

more than $50 million after the Director-Witnesses gave their initial statements to

Tyco’s investigators, it is highly likely that the directors’ subpoenaed initial

statements would be similarly exculpatory regarding the bonuses paid to both

Defendants. The bonuses were based on the same transactions that both

Defendants pointed to as entitling them to receive the bonuses (with Mr. Swartz

receiving half of the amount paid to Mr. Kozlowski). Moreover, even if the initial

statements of the Director-Witnesses revealed only that they had been informed of

the bonuses that Mr. Swartz was later accused of stealing, such an inconsistency

with their trial testimony would still have been extremely valuable to Mr.

Kozlowski’s defense. The credibility of the directors as witnesses would have

been thoroughly undermined if Petitioner had been able to demonstrate to the jury

that they had “changed their tune” with respect so important a subject as the

propriety of the bonuses paid to Mr. Swartz.

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Finally, in addition to the prejudice caused by the denial of access to

exculpatory material, the quashing of the subpoena gave the prosecution an unfair

advantage with respect to the opportunities each side should have had to utilize the

fruits of the internal investigation favorable to its position. Internal corporate

investigations can be expected to uncover and develop evidence that is potentially

helpful to both parties to a criminal action. To allow only one side to access that

evidence, however, is to sanction an unfair trial.

A review of the prosecutor’s summation demonstrates the point. The

prosecutor argued that BSF was a “well respected, well known national law firm”

that had been hired to conduct “a full and complete independent investigation,”

that is, a “searching investigation of everything at Tyco.” PA222-23 (A380-81).

The firm had been assisted by the “accounting detectives” whose “job really is to

look specifically for fraud.” PA217 (A361). And, it was only “after the forensic

auditors had come in and combed through all the tens of millions of pages that are

the books and records of Tyco [a]nd after the Boies lawyers ha[d] done their

investigation that information [came] to light about what these two defendants

ha[d] been doing.” PA223 (A381); see also PA225 (A383) (“Ms. Galvani [of

Boies Schiller] tells Mr. Boies what the accountants have found,” i.e., the disputed

1999 bonus credit). Thus, the prosecutor’s ability to manipulate what the jury

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learned about the BSF investigation compounded the unfairness inherent in

Defendants’ inability to obtain the fruits of the investigation, favorable to them.

In sum, Petitioner’s ability to effectively challenge the prosecution’s case

was unquestionably damaged by the unconstitutional deprivation of his access to

important impeachment material.

G. The Appropriate Remedy is to Grant the Writ of Habeas Corpus.


Petitioner urges that the most appropriate remedy for the violation of his

right to present his defense is the granting of the writ. Although it is plain that

Petitioner suffered constitutionally significant harm, to some extent it is impossible

to ascertain, with precision, the extent of the prejudice Petitioner suffered; the

subpoenaed materials have never been inspected by any court. But this uncertainty

is not a reason to restrict the remedy, e.g. to an inspection of the subpoenaed

materials either by this Court or state court. Petitioner’s request for a stronger

remedy is supported not only by well settled law, but also, by a particular fact that

cannot be divorced from the constitutional violation – the prosecution’s complicity

in the violation. As explained below, it is almost inconceivable that the violation

would have occurred without the prosecution’s complicity. Therefore, to the

extent that the scope of the harm cannot be accurately measured and the remedy is

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therefore difficult to fix, the prosecution, because of the role it played in causing

the difficulty of measurement, should suffer the consequence.

As the Second Circuit recently stated, “[t]he appropriate remedy for a

constitutional violation is ‘one that as much as possible restores the defendant to

the circumstances that would have existed had there been no constitutional error.’”

United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008) (quoting United States v.

Carmichael, 216 F.3d 224, 227 (2d Cir. 2000). Here, the only remedy that even

comes close to restoring Petitioner to the circumstances that would have existed,

had there been no constitutional error, is enforcement of the subpoena so that, at a

retrial, Petitioner may use the subpoenaed material to cross examine the

prosecution’s witnesses. In other words, the writ must be granted.

It is also important to point out that under New York law, Petitioner is

entitled to a reversal. In People v. Combest, 4 N.Y.3d 341 (2005), the defendant

unsuccessfully subpoenaed unaired portions of a videotape made by a production

company during his arrest and interrogation. Applying a test similar to

Gissendanner, the New York Court of Appeals held that the defendant overcame

the journalist’s qualified privilege because by its nature the tape was “highly

material and relevant” and was “critical or necessary” to his claim of self-defense.

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Combest, 4 N.Y.3d at 349. The court reversed for a new trial, without examining

the tape or remanding for a hearing.

Combest parallels this case in another regard. The court there cautioned that

“the police may not immunize themselves from their obligation to provide

defendants with copies of their own taped statements simply by letting a news

organization . . . operate the cameras.” Id. at 350. Although the court did not need

to decide “whether the indicia of state involvement in this case rise to the level at

which private conduct is transformed into state action,” it noted that, had the police

done the work itself, the defendant would have received the tape in discovery. Id.

Similarly, the Court here need not decide whether the Boies firm became a state

actor, but its close cooperation with the DA’s Office allowed the prosecution to

develop a one-sided evidentiary record and to shield from Defendants key

statements that would have been discoverable had the prosecutors conducted the

interviews themselves.

Indeed, in an apparent effort to disclaim Rosario obligations, the prosecution

trumpeted the fact that they never even requested, let alone received, any BSF

work product. See PA303 (Prosecution Appellate Division Brief at 278) (“[T[he

People never sought, and the Boies firm never disclosed, any Boies firm attorney

work-product to the grand jury or to the prosecution.”) (emphasis in original).

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Given the “culture of waiver” and the widespread expectation that internal

investigation results will be turned over to the government, the prosecution’s

failure even to request these materials is suspect. There can be no question that the

work product of BSF would have been incredibly useful to the prosecution – just

as the results of such investigations have proven incredibly useful (if not

indispensable) to federal prosecutors. Moreover, given that the prosecution sought

and received from Tyco over ten million pages of documents relating to the alleged

wrongdoing at issue in this case (many of which were privileged), see id., any

suggestion that the prosecution was somehow being solicitous of Tyco’s qualified

protection over the BSF litigation materials rings particularly hollow. Instead,

given the looming threat of indictment against Tyco, and Tyco’s incentive (like

any other rational corporation) to please the prosecutors at virtually all costs, it is

clear that the BSF work product materials were the prosecution’s, simply for the

asking.

Although the reason for the prosecution’s decision not to request those

materials cannot be stated with certainty, it is highly likely that it refrained from

requesting the witness statements because they already knew their underlying

substance based on oral presentations made by BSF. It is widely known that, in an

attempt to avoid claims of privilege waiver by third parties, corporate counsel are

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increasingly using oral presentations, rather than disclosure of written materials, to

present internal investigations findings to the government.24 Although there was

no question that BSF and the prosecution engaged in frequent, substantive

communications, the trial court held that there was no evidence that BSF “provided

work product directly or indirectly to the People.” PA193 (A213). But the court

based that conclusion on a review of written correspondence between BSF and the

prosecution (evidence that plainly does not speak to the existence of oral

presentations of work product material), and on a craftily-worded affirmation by

Tyco that easily left open the possibility that BSF had made such oral

presentations. For example, Tyco stated that Swartz was “incorrect” that “Boies

Schiller orally presented to the District Attorney the substance of everything

contained in its attorneys’ memoranda and notes.” PA188 (A208) (emphasis

added). Of course, to the extent the prosecution learned the substance of these

witness statements from BSF oral presentations, the prosecution would have been

obligated to disclose to Defendants any material exculpatory and impeaching

Brady/Giglio material of which they became aware, whether or not the prosecution

24
See John Gibeaut, Junior G-Men, 89-Jun A.B.A. J. 46, 51 (2003) (“[S]ome prosecutors and
private sector lawyers suggest that a few winks and nods to point the government in the right
direction may avert demands for privileged materials.”).
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made written notes of the presentation. See, e.g., United States v. Rodriguez, 496

F.3d 221, 226 (2d Cir. 2007).

In sum, there was no conceivable reason for the prosecution not to have

requested copies of the Director-Witness statements from Tyco, other than an

intention to avoid incurring an obligation to disclose, to the defense, evidence that

the prosecution believed would undercut the credibility of its witnesses.

An opinion authored by Learned Hand, also supports Petitioner’s request for

a new trial. In United States v. Andolschek, 142 F.2d 503 (1944), the Second

Circuit reversed the convictions of three defendants, inspectors at the Treasury

Department’s “Alcohol Tax Unit,” for conspiracy to violate the internal revenue

code. The principle issue raised on appeal was the “exclusion” of certain Treasury

Department reports, apparently relevant to the defense of the case, on the ground

that the trial judge believed that Treasury Department regulations forbade

disclosure of the reports under any circumstances. Id. at 505. Although the reports

were unquestionably entitled to statutory confidentiality, the court concluded

simply that “so far as [the reports] touch the criminal dealings, the prosecution

necessarily ends any confidential character the documents may possess.” Id. at

506. The content of the reports was “not in the record,” but it was apparent that the

reports would have been relevant to the defense because the charges arose out of

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the defendants’ discharge of their official duties and the reports “would bear upon

how the accused” had performed those duties. Id. at 505. Given that the reports

were not before the court, it was not possible to discern the precise degree of

prejudice the defendants had suffered. But the court had little trouble deciding that

the remedy for this violation of the defendant’s ability to present their defense had

to be a new trial:

We cannot of course know, as the record stands, how


prejudicial the exclusion may have been, but that
uncertainty alone requires a new trial; for it does not
affirmatively appear that the error was insubstantial
within the meaning of 28 U.S.C. § 391.

Id. at 506.

Similarly, to the extent that uncertainty exists about just how much prejudice

Petitioner suffered as a result of the trial court’s quashing of his subpoena, that

uncertainty also supports a new trial here. This conclusion is supported by well-

settled federal law, recent authority from New York’s highest court, and is an

equitable and appropriate remedy, given the prosecution’s likely instrumental role

in causing the violation of Petitioner’s rights.

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POINT II

NO ADEQUATE AND INDEPENDENT STATE-LAW GROUND


FORECLOSES HABEAS REVIEW OF PETITIONER’S CLAIMS.
The Court of Appeals’ opinion contained an assertion that Petitioner had not

“raised” his constitutional argument in the trial court. To whatever extent that this

assertion appeared to hint at the suggestion of procedural default, that is all it did.

Because the assertion was at best a hint and not a “plain statement” of procedural

default, it does not bar federal review of Petitioner’s claim. Even if, initially, the

Court of Appeals had plainly stated a reliance on procedural default, such initial

statement would nevertheless not have foreclosed federal review, given what

followed. That is, the court went on to inject additional ambiguity into the subject

of whether its opinion depended only on state law when, after stating the court

would not “address” federal constitutional considerations, its opinion went on to do

just that – explicitly discussing federal constitutional considerations. Finally, even

if the Court had plainly stated a reliance on procedural default and thereafter

avoided creating ambiguity about its reliance on procedural default, the concept of

procedural default would nevertheless still not be an “adequate” ground to

foreclose review for another reason: Petitioner substantially complied with the

state-law contemporaneous-objection requirement and where, as here, “perfect”

compliance with the state contemporaneous objection rule would have been futile,

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federal law does not treat a technical error in complying with a state procedural

rule as a basis for finding the underlying claim procedurally defaulted.

A. The Court of Appeals Did Not Make a Plain Statement That


Petitioner’s Constitutional Claims Were Procedurally Defaulted.
Federal courts will not consider a question of federal law on review from a

state-court decision if that decision rests on an independent and adequate state-law

ground. Harris v. Reed, 489 U.S. 255, 260 (1989). However, a defendant’s

procedural default under state law “does not bar consideration of a federal claim on

either direct or habeas review unless the last state court rendering a judgment in the

case clearly and expressly states that its judgment rests on a state procedural bar.”

Id. at 261. If the state court fails to make such a “plain statement” of procedural

default, a federal court “may reach the federal question on review.” Ylst v.

Nunnemaker, 501 U.S. 797, 802 (1991); Harris, 489 U.S. at 261 (same); Michigan

v. Long, 463 U.S. 1032, 1042 (1983) (same). See also Jimenez v. Walker, 458 F.3d

130, 136 (2d Cir. 2006) (Because it is often difficult to determine whether a state

court judgment rests on the merits of a federal claim or on an independent state

procedural bar, “the Supreme Court created a conclusive presumption to guide the

inquiry.”) Even where the petitioner in fact failed to present a federal claim to the

state trial court, federal courts will hear that claim if ambiguity exists as to whether

the last state court to hear the claim relied on procedural default as the basis for its

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determination. See Victor v. Nebraska, 511 U.S. 1, 19 (1994); Harris, 489 U.S. at

261-62; Siripongs v. Calderon, 35 F.3d 1308, 1317-18 (9th Cir. 1994); Ylst, 501

U.S. at 801. As the Supreme Court very recently stated, unless the state court

expressly states that its decision is based on procedural default, federal courts will

assume that the state court declined to apply the state procedural bar and “will not

second-guess their judgment.” Cone v. Bell, 129 S.Ct. 1769, 1782 & n.13 (2009).

Here, the Court of Appeals did not make a plain statement of procedural

default – the threshold requirement for declining to reach the merits of a federal

habeas claim on procedural default grounds. New York’s court merely commented

that “defendants did not raise a constitutional argument in support of their

subpoena below.” Kozlowski, 11 N.Y.3d at 242 n.11. Federal courts have

repeatedly held that such phrases do not constitute a “plain statement” of

procedural default, as a matter of federal law. Victor v. Nebraska, 511 U.S. 1, 19

(1994) (holding that state court’s reference to petitioner’s “failure to object” or to

“raise the issue on direct appeal” did not satisfy plain statement rule); Harris, 489

U.S. at 265-66 (finding state court’s remark that petitioner’s claims “could have

been raised [on] direct appeal” insufficient to satisfy plain statement rule); Jones v.

Stinson, 229 F.3d at 118 (reaching the merits of habeas claim even though New

York’s appellate division “set forth the factual predicate for a finding of procedural

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default” because the court “never actually stated that the issue was not preserved);

Nickerson v. Lee, 971 F.2d 1125, 1129 (4th Cir. 1992) (finding that state-court

decision which did not mention “procedural default (or any synonymous term)”

and lacked citation to relevant statutory or case law failed to satisfy plain statement

rule); Willis, 956 F.2d at 2 (finding no plain statement of procedural default where

state court addressed merits of federal claim and then added “Further, Appellant

failed to object to this testimony”); Rose v. Lane, 910 F.2d 400, 402 (7th Cir. 1990)

(finding lack of plain statement of procedural default where state court noted that

petitioner’s failure to request instruction at trial was “grounds for waiver”); see

also Arizona v. Evans, 514 U.S. 1, 10 (1995) (finding state court’s statement that

federal law was “being used only for the purpose of guidance” inadequate to

satisfy plain statement rule).

When examining the basis for a state court’s adjudication of a federal claim,

one of the “clues” the Second Circuit looks to is “the practice of state courts in

similar circumstances.” Jimenez v. Walker, 458 F.3d 130, 145 at n. 16 (2006).

The language used by the Court of Appeals in footnote 11 is not the language that

court regularly uses in similar circumstances to describe a defendant’s purported

procedural default, when the grounds for default relate to New York’s

contemporaneous objection rule. Rather, the court’s practice is to use the clear

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term “unpreserved’ to indicate procedural default. See, e.g., People v. Passino, 12

N.Y.3d 748, 749 (N.Y. Ct. App. 2009); People v. Middleton, 12 N.Y.3d 737, 738

(N.Y. Ct. App. 2009); People v. Ennis, 11 N.Y.3d 403, 414 n.2 (N.Y. Ct. App.

2009); People v. Hawkins, 11 N.Y.3d 484, (N.Y. Ct. App. 2008); Town of Rye v.

NY Bd. of Real Prop. Servs., 10 N.Y. 3d 793, 795 (N.Y. Ct. App. 2008); People v.

Melendez, 8 N.Y. 3d 886, 887 (N.Y. Ct. App. 2007); People v. Person, 8 N.Y. 3d

973, 974 (N.Y. Ct. App. 2007); People v. Rivera, 9 N.Y. 3d 904, 905 (N.Y. Ct.

App. 2007); People v. Grant, 7 N.Y.3d 421, 424 (N.Y. Ct. App. 2006). All of

these cases demonstrate that the court uses some form of the word “preservation”

when it holds a claim to have been procedurally defaulted based on New York’s

contemporaneous objection rule.

The court’s recent decision in Hawkins (particularly its companion case,

People v. Eduardo), demonstrates further that, when the court describes

constitutional claims as not having been “raised below,” this does not necessarily

mean that such claims are procedurally defaulted under New York law. 11 N.Y.3d

484. In Hawkins, the court held that although defendant Eduardo “raised no

constitutional claims at trial, his [constitutional] legal sufficiency claim is in fact

preserved.” Id. In other words, it is not the same thing, under New York law, to

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state that a defendant “raised no constitutional claims at trial” as it is to state that a

defendant failed to “preserve” his constitutional claims.

It is noteworthy that the Court of Appeals used “preservation” language with

respect to other of Petitioner’s claims in this case, but did not do so with respect to

his constitutional claims. Kozlowski, 11 N.Y.3d at 250 (“We have considered

defendants’ remaining arguments and conclude that they are either unpreserved or

without merit.” (emphasis added)).25 Since the Court of Appeals failed to make a

plain statement of procedural default, federal review of Petitioner’s constitutional

claims is not foreclosed.

Moreover, where a state court’s determination is “interwoven with federal

law,” as the Court of Appeals’ decision was here, a federal court “may reach the

federal question on review unless the state court’s opinion contains a plain

statement that its decision rests upon adequate and independent state grounds,”

even when the court makes an otherwise clear statement that the claim would also

be procedurally barred on state-law grounds. Ylst, 501 U.S. at 802 (internal

quotation marks, ellipsis and brackets omitted); Harris, 489 U.S. at 261 (same);

25
It should be noted, however, that the “either/or” language used by the court in this paragraph
creates a separate ambiguity that would also fail to satisfy the plain statement rule. Cox v.
Miller, 296 F.3d 89, 100 (2d Cir. 2002) (finding that state court’s holding that appellant’s
“remaining contentions are either unpreserved for appellate review or without merit” did not
constitute a plain statement of procedural defect).
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Long, 463 U.S. at 1042 (same); see also Three Affiliated Tribes v. Wold

Engineering, P.C., 467 U.S. 150, 152 (1984) (holding that where “a state court’s

interpretation of state law has been influenced by an accompanying interpretation

of federal law,” that decision does not rest on an “independent” state-law ground).

By reaching a petitioner’s federal claim, even after having found a procedural bar,

a court relies, necessarily, on two different grounds for its decision. Rogers-Bey v.

Lane, 896 F.2d 279, 281 (7th Cir. 1989). If that court intends to rely on the state-

law procedural default, and simply wants to note that there were alternate, federal

grounds on which it could have based its decision, the court “must actually state

that it is doing so and that other grounds are reached only in the alternative.” Id. at

282. If, on the other hand, the court addresses federal issues without making such

a statement, the court “interjects ambiguity and opens the door to federal review.”

Willis v. Cohn, 956 F.2d 1165, ____ (7th Cir. 1992).

Here, after dropping a footnote that “defendants did not raise a constitutional

argument in support of their subpoena below,” the Court of Appeals went on to

address the subpoena issue in light of federal constitutional law. Kozlowski, 11

N.Y.3d at 242 (“In applying [the Gissendanner] standard, we must give due regard

to the accused’s right to a fair trial (Ritchie, 480, US at 56; Nixon, 418 at 711).”).

The “face” of the opinion does not indicate that it rested on state-law grounds

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alone, such as lack of preservation, or that it reached the merits of the

constitutional issues only in the alternative. See Jimenez, 458 F.3d at 145, n. 16.

Since the Court of Appeals considered the constitutional principles advanced by

Defendants without making a plain statement that its determination of the

subpoena issue was independently based on state-law procedural-default grounds,

Petitioner’s constitutional claims are properly before this Court for review.

B. Procedural Default is Not an Adequate State Ground on Which


to Preclude Federal Review of Petitioner’s Constitutional Claims
in This Case.
For the reasons described above, procedural default cannot, as a threshold

matter, be considered an independent state-law ground for the Court of Appeals’

decision. But even if the Court had plainly stated a reliance on procedural default,

and even if the Court had not intertwined its discussion with federal law, its

decision would still not be adequate to foreclose federal review, based upon the

factors that govern the question of when a state court’s facial reliance on

procedural default is adequate to foreclose review, as a federal question. In Lee v.

Kemna, 534 U.S. 362 (2001), the United States Supreme Court set forth three

factors that courts should evaluate in this context. Most notably, the factors

discourage reliance on procedural default where a petitioner’s strict compliance

with state procedural rules would have been futile.

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1. The Trial Court’s Decision to Quash Necessarily Rested on its
Conclusion that Defendants’ Interest in the Subpoenaed Materials
was Not of Constitutional Magnitude and Therefore, Defendants’
Perfect Compliance with the State Procedural Rule, e.g., Explicit
Reference to the Constitution When Objecting to the Trial Court
Ruling, Could Not Have Altered the Trial Court’s Decision.
The first factor is whether the state-court’s determination would have been

the same regardless of whether the defendant had complied with the procedural

requirement on which the state court’s decision purportedly rested. If the court’s

determination would not have changed, federal-court review may be appropriate.

In the Lee case, the defendant’s counsel made a motion to continue the case due to

the sudden, unexplained disappearance of critical witnesses. 534 U.S. at 369. The

judge denied the motion, stating that his daughter would be in the hospital on the

following day, and he had other trials scheduled for the next two business days. Id.

The ground asserted to block adjudication of the defendant’s federal claim on

appeal, however, was that the defendant had not complied with a state procedural

rule that supposedly required such motions to be submitted in writing and

accompanied by an affidavit. Id. at 380-83. Since, based on the judge’s schedule,

the defendant’s motion would not have been granted even if he had scrupulously

complied with the asserted procedural grounds for denial, the Supreme Court held

that the asserted grounds were “inadequate to block adjudication of a federal

claim.” Id. at 363, 381.

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Similarly, in Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), the Second

Circuit found that the defendant’s perfect compliance with New York’s

preservation rule – the asserted state-law ground – would not have changed the

trial court’s decision, as that decision was in fact made on substantive, rather than

procedural, grounds. 331 F.3d at 242-43. Therefore, the asserted state-law ground

was insufficient to preclude federal-court review of Cotto’s federal claim. Id. at

247; see also James v. Kentucky, 466 U.S. 341, 349 (1984) (noting that courts will

not force litigants to engage in an “arid ritual of meaningless form”); Staub v. City

of Baxley, 355 U.S. 313, 320 (1958) (same).

Likewise, regardless of how clearly Petitioner expressed his claim that the

quashing of the subpoena would violate his constitutional rights, the trial court, in

any case, would have quashed the subpoena, given its plain, on the record

determination that Petitioner’s subpoena was not of constitutional magnitude.

Under New York’s standard for the enforcement of a subpoena, a criminal

defendant is required to demonstrate that his subpoena is not merely a “fishing

expedition” but is “reasonably likely” to “produce relevant and exculpatory

evidence.” Gissendanner, 48 N.Y.2d at 550. This standard is based on the

recognition that restricting a criminal defendant’s access to relevant and

exculpatory evidence implicates the defendant’s constitutional rights. Id. at 547-

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48; see also, e.g., Holmes v. South Carolina, 547 U.S. 319 (2006); Pennsylvania v.

Ritchie, 480 U.S. 39 (1987); Chambers v. Mississippi, 410 U.S. 284 (1973). In

essence, the Gissendanner case divides subpoenas issued in criminal cases into two

categories – those that have a constitutional dimension pass the “fishing

expedition” test and must be enforced, while those characterized as “fishing

expeditions’ do not have a constitutional dimension and may be quashed at the

discretion of the judge. As the court put it,

though access must be afforded to otherwise confidential


data relevant and material to the determination of guilt or
innocence . . . or when it involves other information
which, if known to the trier of fact, could very well affect
the outcome of the trial, there is no such compulsion
when requests to examine records are motivated by
nothing more than impeachment of witnesses’ general
credibility. In such cases, the defendant’s rights have
generally been canalized within the bounds of the
traditional evidentiary rule that governs the introduction
of extrinsic proof of matters collateral to the issues at
trial.
Gissendanner, 48 N.Y.2d at 548 (internal citations and quotation marks omitted).

Therefore, when a court concludes that a subpoena amounts to a “fishing

expedition,” it has necessarily determined that the defendant does not have a

constitutional right to enforcement of that subpoena.

The trial court in this case, after summarizing Defendants’ arguments about

their reasons for needing the subpoenaed documents, held that “to seek disclosure

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on that basis would constitute the proverbial fishing expedition.” Tyco Int’l Ltd. v.

Swartz, 2005 WL 6175342 *3 (Sup. Ct. N.Y. Co. 2005). In making this

determination, the trial court necessarily decided that Defendants did not have a

constitutional right to enforcement of the subpoena. After the trial court had found

that Defendants’ subpoena was a fishing expedition – and therefore not of

constitutional magnitude – Petitioner could not have realistically changed the trial

court’s decision to quash the subpoena, regardless of whether and how explicitly

he had articulated a constitutional objection to the trial court’s ruling. In any

event, for Petitioner to have told the trial court that its finding the subpoena lacked

constitutional dimension was itself “unconstitutional” would have truly been an

arid, meaningless ritual.

2. The Asserted State Ground Was Not Firmly Established.


The second factor that the Lee and Cotto courts held relevant to the

appropriateness of federal-court review is whether the state ground asserted to

block such review was a firmly established or regularly followed principle of state

law. If the asserted state ground was not firmly established, federal-court review

may be appropriate. In Lee, the court could find no precedent for requiring

“flawless compliance” with the rule that motions for continuance be in writing and

accompanied by an affidavit in the situation where critical witnesses had suddenly

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disappeared without explanation on the last day of trial. 534 U.S. at 382. The

court held that, while the state procedural rules at issue were not themselves

“novel” rules, the application of those rules to the facts of the case was a novel

application. Id; See also Ford v. Georgia, 498 U.S. 411 (1991) (“[A]n adequate

and independent state procedural bar to the entertainment of constitutional claims

must have been firmly established and regularly followed.”); James, 466 U.S. at

348-49 (holding that only “firmly established and regularly followed state practice

[] can prevent implementation of federal constitutional rights”); Hathorn v.

Lovorn, 457 U.S. 255, 262 (1982) (holding state procedural rule inadequate where

not applied “evenhandedly to all similar claims”); Pruneyard Shopping Ctr. v.

Robins, 447 U.S. 74, 86 n. 9 (1980) (“This Court has held federal claims to have

been adequately presented even though not raised in lower state courts when the

highest state court renders an unexpected interpretation of state law or reverses its

prior interpretation.”); Barr v. City of Columbia, 378 U.S. 146, 149 (1964) (noting

that “state procedural requirements which are not strictly or regularly followed

cannot deprive us of the right to review”); Bouie v. City of Columbia, 378 U.S. 347

(1964) (finding Supreme Court review appropriate where state court broadens

application of state law beyond a fair reading so as to deny due process); Wright v.

Georgia, 373 U.S. 284, 291 (1963) (finding Supreme Court review appropriate

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where there is no state precedent for holding); NAACP v. Alabama, 357 U.S. 449,

457-58 (1958) (“Novelty in [state] procedural requirements cannot be permitted to

thwart review in this Court applied for by those who, in justified reliance upon

prior decisions, seek vindication in state courts of their federal constitutional

rights.”); Staub v. City of Baxley, 355 U.S. 313, 320 (1958) (holding state

procedural rule inadequate where state court’s interpretation was contrary to prior

state-court rulings).

The Cotto case presents a particularly relevant example. In that case, New

York’s preservation rule was asserted as the ground for blocking review of the

defendant’s federal constitutional claims. The reviewing court looked to state-

court decisions interpreting the state’s preservation statute, and found that, under

New York law, if an argument has already been rejected by the trial court, a

defendant does not have to raise it himself in order to have that argument preserved

for appeal. Cotto, 331 F.3d at 243-45 (citing People v. Edwards, 95 N.Y.2d 486,

491 n.2 (N.Y. Ct. App. 2000); People v. Seabrook, 241 A.D.2d 325, 326 (1st Dept.

1997); People v. Duncan, 177 A.D.2d 187, 190-91 (2d Dept. 1992); People v.

Ayala, 142 A.D.2d 147, 157 (2d Dept. 1988); People v. Johnson, 144 A.D.2d 490,

491 (2d Dept. 1988). The court held that, since New York precedent indicated that

Cotto was not required to make an additional objection in order to preserve his

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constitutional claim for review, the state court’s holding that his failure to make

such an objection left his claim unpreserved was not an adequate state-law ground

to preclude federal review. Cotto, 331 F.3d at 245. See also People v. Mezon, 80

N.Y.2d 155, 161 (1992) (holding that New York law “does not require litigants to

make repeated pointless protests after the court has made its position clear”).

Likewise, as discussed above, the trial court in this case necessarily rejected

Petitioner’s argument that quashing the subpoena would violate his constitutional

rights when it held that the subpoena was a “fishing expedition.” Under New York

precedent, once an argument has been rejected by the trial court, a defendant does

not have to raise that subject again in order to preserve his argument for appellate

review. Id. at 161. Thus, to the extent that the Court of Appeals’ ambiguous

opinion could be interpreted as a finding Petitioner did not preserve his

constitutional argument due to his failure to raise it in the trial court, that holding

departed from the firmly established, regularly followed precedent of the court and

is therefore not an adequate ground to preclude federal-court review.

3. Given the Realities of Trial, Defendants Substantially


Complied with the Procedural Requirement.
The third factor discussed in Lee and Cotto is whether, given the realities of

trial, the defendant substantially complied with the state procedural requirement at

issue. Even if the defendant was not in perfect compliance with the state

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procedural requirement, federal-court review is appropriate if the defendant

substantially complied with that requirement. In Lee, the court examined the

circumstances surrounding the defendant’s failure to comply with the state

procedural rule, and held that “insistence on a written continuance application,

supported by an affidavit, in the midst of trial upon the discovery that subpoenaed

witnesses are suddenly absent, would be so bizarre as to inject an Alice-in-

Wonderland quality into the proceedings.” 534 U.S. at 383. Given the realities of

trial, the court held that Lee’s oral motion for continuance substantially complied

with the state procedural rule and, under those circumstances, no adequate state-

law ground prevented federal-court review of Lee’s claim. Id. at 383, 387.

In Cotto, the court found that the purpose of the contemporaneous objection

rule was to alert the trial court to the objection while there was still an opportunity

to address it. 331 F3d at 245. In looking at whether this purpose had been served,

the court noted that Cotto’s counsel “indicated that a total bar on cross-

examination was unfair” in his arguments before the trial court, that he “did not

(and was not required to) use the specific words ‘Confrontation Clause’” in making

his objection, and that “it is well established, and certainly no secret to criminal

law practitioners and judges, that cross-examination of testifying witnesses is

mandated by the Sixth Amendment’s Confrontation Clause.” Id. Under these

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circumstances, the court found it “difficult to argue that defendant had not made

his position with respect to the ruling known to the court.” Id. (internal quotation

marks omitted). Since “unyielding application of the general rule” would not serve

any state interest in light of Cotto’s substantial compliance with that rule, Cotto’s

purported lack of preservation was not an adequate state ground on which to

deprive Cotto of federal review of his constitutional claim.

In the instant case, too, Petitioner substantially complied with the procedural

requirement of raising his federal constitutional claims in the trial court. Foremost,

Defendants issued a subpoena for evidence which, by its very nature, is an

invocation of the right to compulsory process. See In re Martin Marietta Corp.,

856 F.2d 619, 621 (4th Cir. 1988) (“Rule 17(c) implements the Sixth Amendment

guarantee that an accused have compulsory process to secure evidence in his

favor.”); Wilson v. United States, 221 U.S. 361, 372 (1911); People v. Thurston,

619 N.Y.S.2d 465 (4th Dept. 1994); see also Christoffel v. United States, 200 F.2d

734 (D.C. Cir. 1952) (“The right of an accused by appropriate means to obtain

evidence material to his defense is essential to the administration of the criminal

law. A subpoena duces tecum to one who has custody of the evidence is an

appropriate means.”). In addition, Defendants described the subpoenaed

documents as “very very important,” PA256 at 24 (RA213 at 24), material to “the

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heart of [the] case,” PA238 (RA182), supporting an inference that key prosecution

witnesses “changed their tune” about Defendants’ guilt, PA243 (RA187), having

no equivalent because they consist of statements recorded during a “window of

time,” PA256 at 24 (RA213 at 24), and undercutting “the credibility of directors”

as witnesses, PA259 at 36 (RA216 at 36). In so doing, Defendants made it clear

that their argument was founded on well recognized constitutional values. Even

Tyco’s lawyer recognized that Defendants were making a constitutional argument

when he characterized them as “Brady” like claims. PA259 at 37 (RA216 at 37).

The trial court acknowledged Defendants’ contention that, regardless of whether

Tyco had a valid claim of privilege, the subpoenaed documents were “nevertheless

subject to disclosure.” PA192 (A212). Moreover, the trial court explained that it

understood Defendants’ position to be that “work product protection should not

apply because the contents of the requested memoranda and notes are…relevant to

th[e] case.” PA194 (A214). The only conceivable reason that the subpoenaed

documents could be technically protected by a privilege, but nevertheless subject

to disclosure, is that constitutional values override the privilege. And, Defendants’

assertion that work product protection did not apply because the documents were

materially relevant to the defense of their criminal case must have been understood

to have a federal constitutional basis because it had no conceivable state-law

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statutory basis. Given these circumstances, it would be untenable to argue that the

trial court was not apprised of the fact that Petitioner’s arguments were premised

on constitutional values.

Because Petitioner substantially complied with the requirement that the trial

court be given notice of his federal claim in order to preserve that claim for review,

there is no adequate state ground on which to preclude federal-court review of that

claim.

In sum, collectively, the three factors set forth in Lee v. Kemna strongly

support the conclusion that habeas review should not be denied here.

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CONCLUSION
Petitioner’s constitutional right to present his defense was violated by the

quashing, on arbitrary grounds, of his subpoena for important, potentially

exculpatory evidence. As a result, the trial below was fundamentally unfair and

the writ should issue.

Dated: New York, New York


August 31, 2009
Respectfully submitted,

CARTER LEDYARD & MILBURN LLP

By: __________________________________
Alan S. Lewis
2 Wall Street
New York, NY 10005-2072
(212) 732-3200

Attorneys for Petitioner

Of Counsel:
Michael Shapiro
Laura Reeds

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