Professional Documents
Culture Documents
Lewis
CARTER LEDYARD & MILBURN LLP
2 Wall Street
New York, New York 10005
(212) 732-3200
Attorneys for L. Dennis Kozlowski
MEMORANDUM OF LAW
IN SUPPORT OF PETITION FOR
WRIT OF HABEAS CORPUS
ON BEHALF OF L. DENNIS KOZLOWSKI
6495321.4
TABLE OF CONTENTS
Page
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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
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
Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) .............................................92, 97, 99
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
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
Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1969) ............................. 51
Three Affiliated Tribes v. Wold Engineering, P.C., 467 U.S. 150 (1984) ................ 89
United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) ......................................... 81
United States v. Stein, 541 F.3d 130 (2d Cir. 2008) ................................................. 77
STATE CASES
Kane v. Her-Pet Refrigeration Inc., 181 A.D.2d 257 (2d Dept. 1992) ................... 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
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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
See EEOC v. Safeway Store, Inc., 2002 WL. 31947153 (N.D. Cal.
Sept. 16, 2002) .................................................................................................... 71
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
STATE STATUTES
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Connors, Practice Commentaries, 7B McKinney's C.P.L.R., C:3101:29,
at 78 (2005 ed.) ................................................................................................... 50
MISCELLANEOUS
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
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Petitioner L. Dennis Kozlowski, through undersigned counsel, submits this
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
entitled. Defendants’ first trial lasted seven months and, after eleven days of jury
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
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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1
Defendants appealed to the Appellate Division, First Department, which
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
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
On October 16, 2008, the New York Court of Appeals affirmed the
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
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
On January 13, 2009, the New York Court of Appeals denied Defendants’
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
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,
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
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
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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
defendant’s right to present his defense is protected by the Sixth and Fourteenth
evidence that is material to his defense, based on a rule that is either arbitrary or
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)
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
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
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
interviewed by BSF strongly suggests that the directors’ statements to BSF would
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.
York’s high court for sustaining the lower court’s quashing of the subpoena for this
in a state statute that, before they are even charged with a crime, they must seek
independent, reasons why this is so. The first, most profound reason is also self
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
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
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
the statute’s conditions. The condition which the New York court said Mr.
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
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
present a defense.
significant evidence on grounds that were entirely arbitrary. The error devastated
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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
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
investor confidence in the Company. PA123 (A38) (Fort); see also PA372 (Swartz
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).
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certain instances, the notes and memoranda were not provided to the prosecution
(and hence not to Defendants). Nevertheless, the subjects of the interviews were
6
These logs were later appended to motion papers filed by Defendants with the trial court.
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Key Employee Loan Program, invoice approvals, art
purchases, real estate and other issues.
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
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.”
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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
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
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Although an untold amount of attorney-client and work-product material was
“common interest with the District Attorney’s Office” in investigating the matter.
“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
PA128 (A81) (Boies). Witnesses were interviewed and prepared by BSF before
being made available to the prosecutors. As the lead prosecutor later described
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,
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.
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relationship – the District Attorney could obtain any information or documents
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
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.
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).
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Defendants’ Subpoena for Impeachment Materials and
Tyco’s Motion to Quash the Subpoena
Before the commencement of the re-trial, Defendants issued a subpoena
stated by the New York Court of Appeals, the prosecution “center[ed] on the
Committee or the board of directors.” Id. at 241 (emphasis added). And as also
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
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.
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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
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
demonstrate that his subpoena is not merely a “fishing expedition,” but rather, is
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).
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In addition to challenging whether Defendants met this threshold
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
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
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
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theoretically conducted by criminal defendants (e.g., Kozlowski and Swartz) of
argued that Defendants were ineligible to receive the notes and memoranda on the
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
“more than a fishing expedition” threshold and explained why the materials had
PA256 at 24, PA259 at 36 (RA213 at 24, RA216 at 36) (specifically noting that
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.
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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
an inference that “the director witnesses . . . changed their tune [about Defendants’
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
Ultimately, New York’s high court agreed with Defendants on this subject as well.
Defendants also disputed Tyco’s alternate argument, the notion that they had
time” that had long since closed – the period after the investigation had been
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commenced but before Defendant Swartz’s employment as CFO had been
26 (RA214 at 26). In other words, and as the Court of Appeals later held, 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’
Finally, Defendants asserted the view that, even if the materials were
categorized as opinion work product or litigation materials, the court should have
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.
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Court Opinion) (acknowledging Defendants’ position that even if the documents
are protected as “work product and trial preparation materials,” “they are
position as “work product protection should not apply because the contents of the
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
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,
(RA215 at 33).
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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
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
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
from disclosure as opinion work product. Ultimately, the court did decide that the
because, as Defendants argued, their need for the materials to defend a criminal
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(whether qualified or absolute) – or whether Tyco had somehow waived work
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
New York’s high court later acknowledged that Defendants, in the trial court, had
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
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
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On the subject of the Gissendanner threshold (and ultimately, only truly
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.”
further, stating that Defendants had failed to demonstrate a “likelihood” that the
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
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-
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
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-
“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.
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
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
had been a “fishing expedition” and therefore failed to satisfy the Gissendanner
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.
legal argument that they were contractually entitled to the sums they received as “a
Appeals Brief at 35, 42-43); see also PA 331 (Prosecution Court of Appeals Brief
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
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.
“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
for its litigation materials that could outweigh Defendants’ need for potentially
interviewed the directors (either before or after the indictment was issued) as a
evidence and included the statement that various “procedures were not employed”
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
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
key issues in the case.” Id. at 241-42. The opinion went on to explain why the
Second, the court held that the interview notes were not protected by the
absolute privilege for opinion work product, but constituted only qualifiedly
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
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
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.
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
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
dimensions” and that the “Sixth Amendment explicitly confers upon every
addressing Defendant’s “right to a fair trial,” the New York court went on to weigh
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
“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
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
“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.
Defendants pointed out that the court had erected a barrier against Defendants’
own discovery to defend a criminal case, “even before the time [they became] a
Swartz’s Motion for Reargument at 5). Defendants argued that “before the
indictment was handed down, [they] had no reason to interview the directors.”
Appeals’ use of the phrase “earlier time” did indeed mean that the court was
criminal case, before the criminal case existed. The prosecution defended such a
requirement (for the first time), arguing that Defendants should have tried to
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.
January 13, 2009, the court denied the motion. Kozlowski, 11 N.Y.3d 904.
June 8, 2009, the Court denied the petition. Kozlowski, 129 S. Ct. 2775.
6495321.4
36
POINT I
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
The New York Court of Appeals held that Mr. Kozlowski was not entitled to
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
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
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
Kozlowski did not seek the “substantial equivalent” of that impeachment material
inconsistent statement) at a time before the larceny charge that he sought the
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
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.
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
for access to important evidence, not stated in the pertinent state statute, whose
evidence on such an irrational and arbitrary ground, the New York Court of
United States Supreme Court, which both: (a) protects a criminal defendant’s
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)
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
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
“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
court’s well reasoned explanation for that finding, there can be no serious question
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
of guilt or innocence” and citing Davis, 415 U.S. at 316, for principle that evidence
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
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-
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
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
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
the course of litigating against each other. It has no application to the materials,
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
against a possible legal action is not material prepared for legal action against the
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
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
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
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,
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
notes and stripped him of his constitutionally protected right to effectively confront
those witnesses.
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
6495321.4
45
below, the criterion is profoundly arbitrary for a second, more fundamental reason
and imagined – a predicate question that must be considered (and which the New
defendant who seeks evidence that may help him to establish his innocence. As
explained below, the Supreme Court has repeatedly held that a criminal
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
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
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
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)
Thus, in Nixon, the Court held that a “demonstrated, specific need for
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
would cut deeply into the guarantee of due process of law and gravely impair the
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
criminal defendant were irrelevant to the application of the civil discovery statute
with a civil discovery statute, and thereby failing to truly and adequately weigh
6495321.4
48
Petitioner’s claim without adequately weighting the constitutional significance of
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
Supreme Court precedent that, when properly understood, required New York’s
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
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
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.
“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
added). The New York Court of Appeals did not explicitly discuss whether
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
substantial need for the subpoenaed materials. Therefore, the only remaining
time he subpoenaed the materials from Tyco, had shown that he was then “unable”
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
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
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
Sprint Corp., 3 A.D.3d 388 (1st Dept. 2004) (ordering disclosure of records
Yasnogordsky v. City of New York, 281 A.D.2d 541, 541 (2d Dept. 2001) (holding
(N.Y. County Sup. Ct. 2005) (finding that “defendants clearly have a ‘substantial
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
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
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
statements they made months earlier to BSF, the two sets of statements could
N.Y.2d 365, 370 (1992) (holding that “[s]tatements are not the ‘duplicative
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
them).
prior inconsistent statement, based only on the theory that the criminal defendant’s
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
statements in the possession of the prosecution must be turned over to the defense,
conduct their own interview of the witness. N.Y. C.P.L.R. § 240.44 (codifying
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
(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
6495321.4
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”
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
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
never be replicated.” Id.; see also Kaplan v. Einy, 209 A.D.2d 248 (1st Dept.
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]
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
Kozlowski, 11 N.Y.3d at 234-35, 243. Because of the passage of time, even if prior
feature. Specifically, the statute requires that a party seeking litigation materials
Notably, New York’ courts did not find that Petitioner had failed this test. Instead,
the post-indictment present could not have been the substantial equivalent of
under very different circumstances than those conducted by Tyco in the pre-
6495321.4
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,
that he could not have obtained what it took to be the substantial equivalent of the
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,
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
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58
In sum, the New York statute required only a showing of a present inability
statements are never replicable, and the particular witness statements sought here
were not replicable for the additional reason that they were recorded during a
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
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
regulating access to litigation materials are set forth in a state statute. As the
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,
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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.
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
investigate a crime not yet charged. As a result, the court’s ruling was an
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
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245. When the Court of Appeals nevertheless affirmed the trial court’s quashing
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.
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
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
context of requests for impeachment materials, such requests are discretionary only
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61
Gissendanner provides no license to quash a criminal defendant’s subpoena for
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
rights were violated by the quashing of his subpoena. First, as explained above in
aside, as the New York court did here, based only on an expansive interpretation of
witnesses, and this right may not be eviscerated or undercut arbitrarily without
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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.
held that, “[w]hether rooted directly in the Due Process Clause of the Fourteenth
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,
defense, Holmes, 547 U.S. at 324; United States v. Scheffer, 523 U.S. 303, 308
6495321.4
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
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,
The right of an accused to present his defense includes the right to confront
challenging their testimony. Chambers, 410 U.S. at 294 (“The rights to confront
process.”); see also Crawford v. Washington, 541 U.S. 36 (2004); Davis, 415 U.S.
witness and the truth of his testimony are tested.”). Although the right to confront
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64
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
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
Ritchie:
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
6495321.4
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
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
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
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
in Ritchie (information about the sexual abuse suffered by a child) and Davis
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(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
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.
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67
Mr. Kozlowski sought to challenge the credibility of critical testimony by
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
“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
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
When the New York Court of Appeals ruled that Mr. Kozlowski was not
impeachment value, it elevated the qualified privilege held by Tyco (as the
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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
defense. Moreover, when, as here, the extent of the protection granted to materials
requirement not found in the statute that defines and regulates access to such
charged, the application of the qualified privilege is arbitrary and cannot prevail
material.
Thus, there can be no question that the state rules allowed to prevail over
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
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legitimate state interest is served by requiring putative criminal defendants to
investigate criminal cases before they exist. New York’s highest court stumbled
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
could contradict the statements of key witnesses for the People.” Kozlowski, 11
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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
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
Mr. Kozlowski. A brief analysis of the evidence in this case serves to underscore
this conclusion.
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
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
records and were known by dozens of people, including the heads of several Tyco
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departments as well as Tyco’s outside auditors. See PA74-94 (Tr.2 9381-401);
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
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).
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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
Tyco’s lawsuits against Mr. Kozlowski and Mr. Swartz, the ongoing criminal
corporate America.21
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
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73
information that they obtained from the investigation itself. Director Slusser, for
transaction, even though there was no dispute that only one such bonus had been
bonus:
* * *
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
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
trial court ordered disclosure of the interview notes from the internal investigation.
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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75
requested compensation] . . . is practicing ‘revisionist history.’” PA199 (A219)
(emphasis added).
Here, too, there is a strong likelihood that the undisclosed statements would
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
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.
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
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76
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
helpful to both parties to a criminal action. To allow only one side to access that
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,”
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
6495321.4
77
learned about the BSF investigation compounded the unfairness inherent in
right to present his defense is the granting of the writ. Although it is plain that
to ascertain, with precision, the extent of the prejudice Petitioner suffered; the
subpoenaed materials have never been inspected by any court. But this uncertainty
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
extent that the scope of the harm cannot be accurately measured and the remedy is
6495321.4
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therefore difficult to fix, the prosecution, because of the role it played in causing
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,
retrial, Petitioner may use the subpoenaed material to cross examine the
It is also important to point out that under New York law, Petitioner is
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.
6495321.4
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Combest, 4 N.Y.3d at 349. The court reversed for a new trial, without examining
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
statements that would have been discoverable had the prosecutors conducted the
interviews themselves.
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
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Given the “culture of waiver” and the widespread expectation that internal
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
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
attempt to avoid claims of privilege waiver by third parties, corporate counsel are
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81
increasingly using oral presentations, rather than disclosure of written materials, to
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
Tyco that easily left open the possibility that BSF had made such oral
presentations. For example, Tyco stated that Swartz was “incorrect” that “Boies
added). Of course, to the extent the prosecution learned the substance of these
witness statements from BSF oral presentations, the prosecution would have been
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.”).
6495321.4
82
made written notes of the presentation. See, e.g., United States v. Rodriguez, 496
In sum, there was no conceivable reason for the prosecution not to have
a new trial. In United States v. Andolschek, 142 F.2d 503 (1944), the Second
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
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:
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
6495321.4
84
POINT II
“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
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
foreclose review for another reason: Petitioner substantially complied with the
compliance with the state contemporaneous objection rule would have been futile,
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85
federal law does not treat a technical error in complying with a state procedural
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
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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86
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
“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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87
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
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
The language used by the Court of Appeals in footnote 11 is not the language that
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
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
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
respect to other of Petitioner’s claims in this case, but did not do so with respect to
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
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
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
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.”
Here, after dropping a footnote that “defendants did not raise a constitutional
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.
Petitioner’s constitutional claims are properly before this Court for review.
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
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
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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
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.
appeal, however, was that the defendant had not complied with a state procedural
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
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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
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
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
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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
expedition,” it has necessarily determined that the defendant does not have a
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
constitutional magnitude – Petitioner could not have realistically changed the trial
court’s decision to quash the subpoena, regardless of whether and how explicitly
event, for Petitioner to have told the trial court that its finding the subpoena lacked
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
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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
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
Lovorn, 457 U.S. 255, 262 (1982) (holding state procedural rule inadequate where
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,
thwart review in this Court applied for by those who, in justified reliance upon
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
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
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
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
supported by an affidavit, in the midst of trial upon the discovery that subpoenaed
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
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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
In the instant case, too, Petitioner substantially complied with the procedural
requirement of raising his federal constitutional claims in the trial court. Foremost,
856 F.2d 619, 621 (4th Cir. 1988) (“Rule 17(c) implements the Sixth Amendment
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
law. A subpoena duces tecum to one who has custody of the evidence is an
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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
that their argument was founded on well recognized constitutional values. Even
Tyco had a valid claim of privilege, the subpoenaed documents were “nevertheless
subject to disclosure.” PA192 (A212). Moreover, the trial court explained that it
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
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
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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,
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
exculpatory evidence. As a result, the trial below was fundamentally unfair and
By: __________________________________
Alan S. Lewis
2 Wall Street
New York, NY 10005-2072
(212) 732-3200
Of Counsel:
Michael Shapiro
Laura Reeds
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