Metro Broadcasting, Inc. v. Federal Communications Commission Brief Amicus Curiae in Support of Respondents

    ORAL ARGUMENT NOT YET SCHEDULED

Nos. 05-5207, 06-5048

UNITED STATES COURT OF APPEALS 
DISTRICT OF COLUMBIA CIRCUIT

HAROLD MARTIN,
Appellant,

v.
UNITED STATES DEPARTMENT OF 

JUSTICE,
Appellees.

NATIONAL ASSOCIATION OF 
CRIMINAL DEFENSE LAWYERS

Appellant,
v.

UNITED STATES DEPARTMENT OF 
JUSTICE,
Appellees.

BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANTS, 
SUPPORTING REVERSAL

Theodore M. Shaw 
Director-Counsel 
Norman J. Chachkin 
Christina A. Swams 
NAACP Legal Defense & 
Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013-2987 
Counsel fo r  Amicus Curiae 
NAACP Legal Defense Fund

Michael S. Fried 
Laura Tuell Parcher 
Joseph W. Clark 
Juliet J. Karastelev 
JONES DAY 
51 Louisiana Ave N.W.
Washington D.C. 20001 
Counsel fo r Amici Curiae 
Mid-Atlantic Innocence Project, and 
ACLU o f  the National Capital Area

Arthur B. Spitzer 
American Civil Liberties Union 

of the National Capital Area 
1400 20th Street. N.W. 
Washington, D.C. 20036 
O f counsel, ACLU o f  the National 

Capital Area



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Counsel for Amici Curiae, Mid-Atlantic Innocence Project and the American 

Civil Liberties Union for the National Capital Area, hereby submits the following 

certificate in accordance with Circuit Rule 28(a)(1).

(A) Parties and Amici. Except for amici curiae American Civil Liberties 
Union for the National Capital Area and the NAACP Legal Defense and 
Educational Fund, all parties and amici appearing in this court are listed in 
the Brief for Appellant.

(B) Rulings Under Review. References to rulings at issue appear in the 
Brief for Appellant.

(C) Related Cases. These cases were previously before this Court on 
cross-motions for summary disposition. See Martin v. D ep’t o f Justice, No. 
05-5207, Order (D.C. Cir. filed May 23, 2006). Appeal no. 05-5207 is back 
before this Court after an earlier remand. See Martin v. D ep’t o f Justice, No. 
00-5389, 38 F. App’x 17 (D.C. Cir. Apr. 23, 2002). Counsel is not aware of 
any other related cases.

Respectfully submitted,

Michael S. Fried 
Jones Day
51 Louisiana Avenue, N.W. 
Washington, D.C. 20001 
(202) 879-3939 (Telephone) 
(202) 626-1700 (Telecopy)

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES.............. i

TABLE OF AUTHORITIES....................................................................................... iii
GLOSSARY.................................................................................................................vii

STATEMENT OF INTEREST......................................................................................1

SUMMARY OF ARGUMENT.................................................................................... 6

ARGUMENT.................................................................................................................. 8
I. THE DISTRICT COURT ERRED BY CATEGORICALLY

HOLDING THAT THERE IS NO PUBLIC INTEREST IN 
MATERIALS PERTAINING TO POSSIBLE BRADY VIOLATIONS.... 10

A. Uncovering Law Enforcement Misconduct Is A Central
Puipose Of The FOIA............................................................................. 10

B. Information Regarding Brady Violations Is Central To Current 
Public Debate Regarding The Proper Functioning of Our
Criminal Justice System......................................................................... 14

C. The Public Has Other Interests in the Disclosure of Information
Pertaining To Possible Brady Violations............................................. 22

D. The District Court Offered No Valid Ground For Its Contrary
Holding That There Is No Public Interest In Exposing Brady 
Violations................................................................................................ 25

II. THE DISTRICT COURT ERRED BY SUGGESTING THAT A 
FOIA REQUESTER MUST AFFIRMATIVELY PROVE 
GOVERNMENTAL MISCONDUCT BEFORE BEING ENTITLED
TO Zf/MDF-RELATED MATERIALS...........................................................27

CONCLUSION.............................................................................................................30

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE 
REQUIREMENTS

CERTIFICATE OF SERVICE

Page

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CASES

Al-Fayed v. CIA, 254 F.3d 300 (D.C. Cir. 2001)........................................................ 2

Banks v. Dretke, 540 U.S. 668 (2004)..........................................................................5

Bennett v. Drug Enforcement Administration, 55 F. Supp. 2d 36
(D.D.C. 1999).....................................................................................................13

Brady v. Maryland, 373 U.S. 83 (1963)............................................................ .passim

Bright v. Ashcroft, 259 F. Supp. 2d 494 (E.D. La. 2003).............................18, 19, 24

Bright v. Ashcroft, 259 F. Supp. 2d 502 (E.D. La. 2003)......................................... 19

Davis v. Department o f  Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992).................28

Department o f  Air Force v. Rose, 425 U.S. 352 (1976)..............................................9

Department o f Justice v. Reporters Committee for Freedom o f Press,
489 U.S. 749(1989)....................................................................................10, 18

Department o f  State v. Ray, 5 02 U. S. 164 (1991)..................................................... 10

Ferriv. Bell, 645 F.2d 1213 (3d Cir. 1981)......................................................... 17, 18

House v. Bell, 126 S. Ct. 2064 (2006).......................................................................... 5

Kansas v. Marsh, 125 S.Ct. 2516 (2006)....................................................................14

Landano v. Department o f  Justice, 873 F. Supp. 884 (D.N.J. 1994)...................... 14

Monroe v. Angelone, 323 F.3d 286 (4th Cir. 2003)...................................................20

NAACP v. Button, 371 U.S. 415 (1963).......................................................................3

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978)..................................... 10

TABLE OF AUTHORITIES

Page

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National Archives & Records Administration v. Favish, 541 U.S. 157
(2004)........................................................................................... 9, 25, 26, 28, 29

Nation Magazine v. Customs Service, 71 F.3d 885 (D.C. Cir. 1995)........................ 9

Oguaju v. United States, 288 F.3d 448 (D.C. Cir.), vacated, 541 U.S. 157 
(2004)................................................................................................................ 18,25,26

Oguaju v. United States, 378 F.3d 1115, 1116 (D.C. Cir. 2004), cert, denied,
544 U.S. 983 (2005)............................................................................. 26, 29,30

People v. Wahad, 154 Misc. 2d 405 (N.Y. Sup. Ct. 1993)........................................21

In re Pratt, 82 Cal. Rptr. 2d 260 (Dist. Ct. App. 1999)............................................. 21

Quinon v. FBI, 86 F.3d 1222, 1231 (D.C. Cir. 1996)................................................28

Rosenfeld v. Department o f Justice, 57 F.3d 803 (9th Cir. 1995)........................... 13

Safecard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991)............................ 28

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971)......................................................13

Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984)................................................................13

United States v. Sampson, 275 F. Supp. 2d 49 (D. Mass. 2003)........................ 15, 24

United States v. Stifel, 594 F. Supp. 1525, 1528 (N.D. Ohio 1984)...................21,24

United States v. Wilson, 289 F. Supp. 2d 801 (S.D. Tex. 2003)..............................20

STATUTES
5 U.S.C. § 552.....................................................................................................9, 10, 13

TABLE OF AUTHORITIES
(continued)

Page

-iv-



TABLE OF AUTHORITIES
(continued)

Page

LEGISLATIVE MATERIALS

H. Comm, on Gov’t Operations & S. Comm, on the Judiciary, 94th Cong., 
1st Sess., Freedom of Information Act & Amendments of 1974 (P.L.
93-502) (Joint Comm. Print 1975)...................................................... 11, 12, 13

Comm, on the Judiciary, Freedom of Information Act Sourcebook:
Legislative Materials, Cases, Articles, S. DOC. No. 93-82, at 79 (2d 
Sess. 1974)..........................................................................................................10

MISCELLANEOUS

A Vision fo r  Justice: Report and Recommendations Regarding Wrongful 
Convictions in the Commonwealth o f Virginia, available at 
http://www.icva.us..........................................................................15, 22, 23, 24

Ken Armstrong & Maurice Possley, Trial & Error. How Prosecutors
Sacrifice Justice to Win., C hi. T rib ., Jan. 10, 1999, at C l .............................17

Robert Becker, Ford Heights 4 To Get Their Settlement From County, C hi.
T r ib ., Mar. 16, 1999 at B 3 ................................................................................ 23

Edward J. Boyer, Pratt Reportedly Settles Case for $4.5 Million, L.A. T im es,
Apr. 26, 2000, at A 1 ...........................................................................................21

Patrice Brymner, Where Massachusetts Fits among States in Compensation 
fo r the Wrongfully Convicted, Apr. 2004, available at 
http://www.cjpc.org/rest_other_states.htm......................................................23

Patrice Gaines, A Case o f  Conviction, Wash. POST, May 6, 2001, at F I ...............20

James Gill, High Court Steps Closer To Righting A Wrong, Times-Picayune
(New Orleans, LA), April 16, 2004, Metro, at 7 .............................................19

Dirk Johnson, Illinois, Citing Faulty Verdicts, Bars Executions, N.Y. TIMES,
Feb. 1,2000, at A1 ............................................................................................. 14

-v-

http://www.icva.us


TABLE OF AUTHORITIES
(continued)

Page

Jeffrey A. Kaufman & Alysa N. Zeltzer, Investigation Report For Beverly 
Ann Monroe (January 22, 2004), available at
http://www.wcl.american.edu innocenceproject/ICVA/supp_case.html..... 20

Ronald Sullivan, Court Erupts as Judge Frees an Ex-Panther, N.Y. TIMES,
Mar. 23, 1990, a t B l .......................................................................................... 21

Adam Zagorin, A Rogue’s Revenge, T ime, Dec. 19, 2005, at 6 3 .............................21

-vi-



GLOSSARY

ACLU-NCA American Civil Liberties Union of the National Capital Area

FOIA The Freedom of Information Act

ICVA Innocence Commission of Virginia

LDF NAACP Legal Defense and Educational Fund, Inc.

MAIP The Mid-Atlantic Innocence Project

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BRIEF OF AMICI CURIAE 
IN SUPPORT OF APPELLANTS

STATEMENT OF INTEREST

Identity of Amici Curiae

The Mid-Atlantic Innocence Project (“MA1P”) was established in the face of 

mounting evidence that innocent people are incarcerated for criminal offenses — 

and sometimes even placed on death row — while the real perpetrators remain free 

to carry out additional criminal acts. MAIP is dedicated to help remedy such 

travesties, and, in doing so, to help improve the proper functioning of the criminal 

justice system. At the level of individual cases, MAIP focuses on the exoneration 

of persons who have been wrongly convicted of serious crimes in Maryland, 

Virginia, and the District of Columbia. At a societal level, MAIP represents the 

interests of law enforcement and the public in advocating reforms to increase the 

reliability of the criminal justice system, thus better protecting the community from 

dangerous criminals and reducing the costs of wrongful convictions to society (and, 

of course, to the innocent convicts).

MAIP is based at American University’s Washington College of Law, and is 

advised by an Honorary Board that represents a broad range of views on justice 

and policy matters, including former federal judges and former senior federal 

prosecutors. MAIP works with student groups at five area law schools, as well as a 

network of pro bono attorneys, to investigate and litigate prisoners’ claims of



actual innocence. MAIP currently investigates approximately forty to sixty 

prisoner applications for assistance each month. Lessons learned from these 

investigations help MAIP to develop its legislative and policy agenda for 

preventing and remedying failures in the criminal justice system.

The American Civil Liberties Union of the National Capital Area (the 

“ACLU-NCA”) is the local affiliate of the American Civil Liberties Union (the 

“ACLU”), a nationwide, nonprofit organization with more than 500,000 members 

that is dedicated to protecting the fundamental rights guaranteed by the 

Constitution and the laws of the United States. With a local membership of more 

than 10,000 persons, the ACLU-NCA defends and seeks to expand civil liberties in 

the Nation’s Capital and Prince George’s and Montgomery Counties in Maryland. 

The ACLU-NCA has often been an amicus in this Court, including in FOIA cases. 

See, e.g., Al-Fayedv. CIA, 254 F.3d 300 (D.C. Cir. 2001).

The NAACP Legal Defense and Educational Fund (the “LDF”) is a non­

profit corporation formed to assist African-Americans in securing their legal rights. 

It is the nation’s oldest civil rights law firm, having been founded as an arm of the 

NAACP in 1939 by Charles Hamilton Houston and Thurgood Marshall. The LDF 

was chartered by the Appellate Division of the Supreme Court of New York in 

1940 as a non-profit legal aid society “to render legal aid gratuitously to such 

Negroes as may appear to be worthy thereof, who are suffering legal injustices by

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reason of race or color and unable to employ and engage legal aid and assistance 

on account of poverty.” Since 1957, LDF has operated independently of the 

NAACP. The United States Supreme Court has recognized that the LDF “has a 

corporate reputation for expertness in presenting and arguing the difficult questions 

of law that frequently arise in civil rights litigation.” NAACP v. Button, 371 U.S. 

415, 422 (1963). Throughout its history, LDF has been involved in such litigation 

throughout the country, both as counsel for parties and as amicus curiae in cases 

before the United States Supreme Court, this Court, and numerous other State and 

federal courts.

Interest of Amici Curiae in the Case

MAIP is regularly involved in using information obtained by requests under 

the Freedom of Information Act (the “FOIA”) to further its mission of improving 

the accuracy of the criminal justice system in prosecuting, convicting, and 

incarcerating only those who are actually guilty of having committed the charged 

crimes. MAIP uses the FOIA as an important tool to investigate potential 

government misconduct in improperly withholding exculpatory materials — so- 

called “Brady materials” — from criminal defendants. See Brady v. Maryland, 

373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence 

favorable to an accused upon request violates due process”). And it uses this 

information obtained through the FOIA to exonerate individuals who have been

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wrongfully convicted, often resulting in the identification and prosecution of the 

actual perpetrators of those crimes. MAIP also uses this information to document 

the scope of Brady violations in the aggregate to assist the public in evaluating the 

propriety and effectiveness of its government in the criminal justice arena.

MAIP’s experience in this area has helped to establish that negligent or 

deliberate noncompliance with Brady obligations within some law enforcement 

agencies is a significant issue of public importance in the criminal justice arena. 

The FOIA has been an invaluable tool in the increasingly prominent public 

discussion over the scope and impact of Brady violations. That statute has also 

helped to hold government agencies accountable for meeting their constitutional 

obligations to disclose exculpatory material to the defense and to ensure that they 

identify, prosecute and imprison the actual perpetrators of crimes in order to 

protect the public.

The ACLU-NCA has a significant interest in the enforcement of the FOIA. 

Both the ACLU and the ACLU-NCA make regular use of the FOIA in the service 

of their institutional goals, and as a means of assisting clients or potential clients in 

obtaining information useful to their own causes. The two purposes are not truly 

separate, and indeed often overlap. The ACLU has often represented clients 

pursuing FOIA requests, and most ACLU cases — FOIA and otherwise — involve 

some potential personal benefit to the plaintiff, as well as a benefit to the public

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interest. A doctrine holding that personal benefit and the public interest are 

mutually exclusive domains would be empirically incorrect, and would 

significantly weaken the FOIA.

The LDF has a long-standing concern with criminal justice issues affecting 

the fairness of trial proceedings, including disclosure of exculpatory evidence by 

prosecutorial authorities. For example, LDF has recently litigated two Supreme 

Court matters on behalf of death-sentence prisoners whose cases turned on 

evidence that was unlawfully suppressed at trial and discovered years later during 

federal habeas corpus proceedings. See House v. Bell, 126 S. Ct. 2064 (2006); 

Banks v. Dretke, 540 U.S. 668 (2004). In House, the Supreme Court allowed the 

petitioner to proceed on a claim of actual innocence based on a showing that 

included both new exculpatory DNA test results as well as other critical forensic 

evidence that came to light during habeas proceedings. In Banks, the Court’s 

ruling critically depended on open access to law enforcement records that led to the 

discovery of material, exculpatory facts the prosecution had withheld at trial. Id. at 

703-05.

The LDF has also investigated and publicly reported the cases of Ruben 

Cantu, Larry Griffin, and Carlos DeLuna, three men who were executed although 

there is reason to believe that they were innocent of the capital crimes for which 

they were sentenced. LDF’s investigation of these and other similar cases, long

-5-



closed by police departments and courts, required FOIA access to public records 

and painstaking review of disclosed materials. In these and similar cases, FOIA 

requests were not always honored; when they were not, investigations were 

hamstrung and the public, including the families of both crime victims and the 

executed men, were deprived of a complete accounting of the events that might 

have led to the gravest miscarriages of justice. Based upon these experiences, LDF 

is vitally concerned with the preservation of the broadest possible availability of 

disclosure of exculpatory materials under the FOIA.

Source of Authority to File Amicus Brief

MAIP filed a Motion for Leave to Participate as Amicus Curiae on February 

28, 2006. This Court granted that motion on March 3, 2006. See Martin v. D ep’t 

o f Justice, No. 05-5207 (D.C. Cir. Mar. 3, 2006) (order granting motion of Amicus 

Curiae). The Court also granted the ACLU-NCA and the LDF’s motion for leave 

to participate as amici curiae, and to join in the MAIP amicus brief. See Martin v. 

D ep’t o f Justice, No. 05-5207 (D.C. Cir. July 31, 2006) (order granting motion of 

Amici Curiae).

SUMMARY OF ARGUMENT

The purpose of the FOIA is to provide the public with access to information 

about the workings of their government, including the operation of its criminal 

justice system. The district court erred by manufacturing a blanket exemption

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from FOIA disclosure requirements for materials pertaining to potential Brady 

violations. If allowed to stand, this error would subvert a central purpose of the 

statute and harm the public’s ability to obtain information from its government in 

an area of significant public discussion and controversy.

Brady violations are precisely the sort of governmental misconduct the 

FOIA was designed to help uncover. Even apart from the general societal interest 

in policing the conduct of its government, the public has a particularly strong 

interest in obtaining information regarding Brady violations, because such 

information is at the heart of a vigorous and ongoing public debate over the scope 

and causes of wrongful convictions. The district court failed to consider this 

important public interest in reaching its holding that the public has no interest in 

information regarding Brady violations.

Moreover, the district court neglected several other strong public interests in 

discovering the scope and frequency of Brady violations. The public has an 

obvious interest in avoiding the costs of wrongful convictions and incarcerations 

that Brady violations can produce. The public also has an interest in facilitating 

public safety by ensuring that real criminals do not remain free to commit 

additional crimes when innocent people are wrongly convicted. For these reasons, 

too, the district court erred in concluding that such information is of no public 

interest at all.

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Finally, the district court erroneously suggested a heightened burden of 

proof for a FOIA requester to obtain materials relating to potential Brady 

violations. The district court indicated that it might require advance proof of 

government misconduct in order to receive materials relating to such misconduct in 

a FOIA request. Such a requirement would put the cart before the horse; the 

proper standard merely requires a reasonable suspicion that such wrongdoing 

might have occurred — proof is precisely what the FOIA disclosures may provide.

ARGUMENT

This case presents the issue of whether the FOIA can ever be used to obtain 

materials necessary to demonstrate Brady violations by prosecutors. The district 

court announced a per se rule that records relating to possible Brady violations can 

never be subject to FOIA disclosure requirements — indeed, that they are “outside 

the proper role of FOIA” altogether — because “an individual’s interest in Brady 

material is private in nature.” Op. 12 (internal quotation marks omitted). This 

categorical holding would preclude the public from using the FOIA to uncover 

Brady misconduct, to collect evidence relating to the ongoing controversy over the 

extent to which Brady misconduct systemically hinders the proper functioning of 

our criminal justice system, and to develop policy solutions to address such 

governmental misconduct. All of these uses fall squarely within the central 

purpose of the FOIA, which is “to open agency action to the light of public

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scrutiny.” D ep’t o f  Air Force v. Rose, 425 U.S. 352, 372 (1976) (internal quotation 

marks omitted).

Nonetheless, the district court created a blanket exemption for Brady-related 

materials, relying upon FOIA exemption 7(C). That exemption excludes from 

mandatory disclosure law enforcement records that “could reasonably be expected 

to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(7)(C); Op. 8-13. The Supreme Court has held that application of 

Exemption 7(C) requires a “balancing of] the competing interests in privacy and 

disclosure” in order to justify non-disclosure. N at’I Archives & Records Admin, v. 

Favish, 541 U.S. 157, 172 (2004); accord, e.g., Nation Magazine v. Customs Serv., 

71 F.3d 885, 894-95 (D.C. Cir. 1995) (noting that “the mere fact that records 

pertain to an individual’s activities does not necessarily qualify them for 

exemption” from disclosure). The district court, however, did not conduct any 

genuine balancing of the privacy and disclosure interests. Instead, it merely held 

that there was no public interest at all in materials documenting Brady violations, 

and, therefore, that any privacy interest would necessarily outweigh it. If allowed 

to stand, the district court’s decision would seriously impair the public’s ability to 

obtain information about important issues of ongoing concern and debate.

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I. THE DISTRICT COURT ERRED BY CATEGORICALLY HOLDING
THAT THERE IS NO PUBLIC INTEREST IN MATERIALS
PERTAINING TO POSSIBLE BRADY VIOLATIONS.

A. Uncovering Law Enforcement Misconduct Is A Central Purpose 
Of The FOIA.

By “facilitating] public access to Government documents,” D ep’t o f State v. 

Ray, 502 U.S. 164, 173 (1991), the FOIA helps to “ensure an informed citizenry,” 

which is “vital to the functioning of a democratic society.” NLRB v. Robbins Tire 

& Rubber Co., 437 U.S. 214, 242 (1978); see Comm, on the Judiciary, Freedom of 

Information Act Sourcebook: Legislative Materials, Cases, Articles, S. DOC. No. 

93-82, at 79 (2d Sess. 1974) (the “FOIA Sourcebook”) (noting that “depriving] 

the people of knowledge of what their government is doing” has the effect of 

“depriving them of the opportunity to examine critically the efforts [of] those who 

are chosen to labor on their behalf’). To achieve this goal, the statute requires that 

“each agency, upon any request for records which (i) reasonably describes such 

records and (ii) is made in accordance with published rules stating the time, place, 

fees (if any), and procedures to be followed, shall make the records promptly 

available to any person,” subject to specifically enumerated exceptions. 5 U.S.C. 

§ 552(a)(3)(A).

In short, the FOIA disclosure obligations were designed to allow the public 

to discover “what their government is up to.” D ep’t o f  Justice v. Reporters Comm, 

for Freedom o f  Press, 489 U.S. 749, 773 (1989) (internal quotation marks omitted).

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Information concerning possible law enforcement misconduct or abuses is 

precisely this sort of information. Indeed, allowing the public to uncover 

government misconduct is so central to the statutory purpose that Congress added a 

provision, the current Exemption 7(C), to the statute directly addressing this issue.

Prior to enactment of that provision, courts had allowed agencies to refuse to 

provide information that was part of investigatory files compiled for law 

enforcement purposes. Agencies had been permitted to do so without proof that 

disclosure would interfere with a specific, cognizable interest, such as the right to a 

fair trial, protection of the identity of informants, or preventing an unwarranted 

invasion of personal privacy. See H. Comm, on Gov’t Operations & S. Comm, on 

the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act & Amendments 

of 1974 (P.L. 93-502), at 332-33 (Joint Comm. Print 1975) (hereinafter 

“Amendments of 1974”). The legislative materials leading to the amendments 

criticized those decisions as “wooden[] and mechanical[],” and “in direct 

contravention of congressional intent,” which was “to assure public access to all 

governmental records whose disclosure would not significantly harm specific 

governmental interests.” Id. at 335.1

1 The earlier provision had exempted from disclosure “investigatory files 
compiled for law enforcement purposes except to the extent available by law to a 
party other than an agency.” See Amendments of 1974 at 332. In amending this 
provision with the current Exemption 7(C), the Congress expressed the view that 
the courts had failed adequately to honor the congressional intent and “spirit” of

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Congress determined that precluding such categorical FOIA denials in the 

law enforcement context was particularly necessary in light of the “fantastic scope 

and quality of abuses committed by the Federal law enforcement and intelligence 

community . . . [that] had escaped accountability for such a long period of time.” 

Amendments of 1974 at 344. As a result of “lawless elements within” federal law 

enforcement agencies, id. at 347, Congress noted that “case after case after case 

ha[d] been thrown out [of court] because the law enforcement and intelligence 

communities acted illegally.” Id. at 348.

While acknowledging that greater disclosure could “make the job of the law 

enforcement agencies more difficult,” Congress determined that this was a price 

worth paying, because a “far greater danger lies behind closed doors and in locked 

files.” Id. at 346. Indeed, Congress recognized that had the government been 

more open and accessible in the first instance, “[n]one of the abuses that we have 

seen come out of this system would have happened.” Id:, see also id. at 285 

(discussing abuses such as the “[s]ecret bombing of Cambodia, secret wheat deals, 

secret campaign contributions, secret domestic intelligence operations, secret cost

(continued...)

the FOIA by refusing to “look behind classification markings” of files as 
“investigatory” to determine whether the disclosure would significantly harm 
governmental interests. Id. at 335-36.

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overruns, secret antitrust settlement negotiations, [and] secret White House spying 

operations”).

Congress thus legislated that “records or information compiled for law 

enforcement purposes” are proper subjects of enforceable FOIA requests, so long 

as they are not otherwise exempted by statute, 5 U.S.C. § 552(b)(7). Exemption of 

law enforcement materials was thereby limited “to the extent that the production of 

such records would” (and, after a further 1986 amendment, “could”) result in 

specific delineated harms. Amendments of 1974, at 332. See generally Soucie v. 

David, 448 F.2d 1067, 1080 (D.C. Cir. 1971) (“The policy of the act requires that 

the disclosure requirements be construed broadly, the exemptions narrowly.”), 

cited with approval in Amendments of 1974 at 265.

Consistent with this history, this Court has long recognized that “the public 

has a strong interest in the airing of [law enforcement agencies’] unlawful and 

improper activities” that may be served by the FOIA. Stern v. FBI, 737 F.2d 84, 

93 (D.C. Cir. 1984); see also Rosenfeld v. D ep’t o f Justice, 57 F.3d 803, 81 1 (9th 

Cir. 1995) (“It certainly serves FOIA’s purpose to disclose publicly [sic] records 

that document whether the FBI abused its law enforcement mandate.”); Bennett v. 

Drug Enforcement Admin., 55 F. Supp. 2d 36, 42-43 (D.D.C. 1999) (finding that 

the DEA’s withholding of information regarding an informant under Exemption 

7(C) was improper, given the substantial public interest in exposing what appeared

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to be “massive government misconduct” resulting from the agency’s relationship 

with the informant); Landano v. D ep’t o f  Justice, 873 F. Supp. 884, 892 (D.N.J. 

1994) (“[T]he public clearly benefits from . . . disclosure since it has an interest in 

the fair and just administration of the criminal justice system.”). Revealing law 

enforcement misconduct is thus at the heart of the FOIA.

B. Information Regarding Brady Violations Is Central To Current 
Public Debate Regarding The Proper Functioning of Our 
Criminal Justice System.

The frequency and causes of wrongful criminal convictions has been an 

increasingly prominent issue in the contemporary debate over the criminal justice 

system, both among the public and within the judiciary. Compare, e.g., Kansas v. 

Marsh, 125 S.Ct. 2516, 2544-46 (2006) (Souter, J., dissenting) (discussing 

evidence of wrongful criminal convictions), with id. at 2531-39 (Scalia, J., 

concurring) (disputing Justice Souter’s conclusions regarding wrongful 

convictions); see also, e.g., Dirk Johnson, Illinois, Citing Faulty Verdicts, Bars 

Executions, N.Y. T im es, Feb. 1, 2000, at A1 (reporting Governor George Ryan’s 

moratorium on executions in light of evidence of wrongful convictions). This is 

precisely the sort of vigorous public discussion regarding the extent to which the 

government is acting properly that the FOIA was designed to facilitate.

Brady violations are an important component of the ongoing public 

discussion regarding wrongful convictions. What is at stake here is therefore not

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simply Harold Martin’s personal interest in a “garden-variety act of misconduct,” 

(Op. 12 n. 8), but rather whether the public may use the FOIA to investigate and 

redress an area of significant public concern in our criminal justice system.

For example, MAIP has participated in the production of a report, issued by 

the Innocence Commission for Virginia (the “ICVA”), entitled A Vision for Justice: 

Report and Recommendations Regarding Wrongful Convictions in the 

Commonwealth o f Virginia (the “Report”), which demonstrates the broad public 

interest in increasing the reliability of the state’s criminal justice system. See 

ICVA Report, available at http://www.icva.us (follow “The ICVA Report” 

hyperlink) (last visited July 28, 2006). The Report closely analyzes eleven 

documented wrongful convictions of rape or murder in Virginia between 1982 and 

1990 and identifies several factors that significantly contribute to the risk of 

wrongful convictions. One of these factors is the failure of police and prosecutors 

to disclose to the defense exculpatory Brady materials.

Over a quarter of the official exoneration cases evaluated in the Report 

(three out of eleven) were found to have involved the failure of police and 

prosecutors to disclose significant exculpatory evidence. Whether this failure 

arises through negligence or intentional misconduct by governmental officers, 

there are serious ramifications not only for the accused, who may be wrongfully 

convicted as a result of the non-disclosure, but also for society, which has a strong

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http://www.icva.us


interest in ensuring and policing the integrity of its government’s operations, 

including the criminal justice system.

Similarly, the Center on Wrongful Convictions at Northwestern University 

School of Law analyzed the cases of eighty-six defendants who had been 

sentenced to death but subsequently legally exonerated; it found that almost twenty 

percent of those cases involved police or prosecutorial misconduct. See 

http://www.law.northwestem.edU/depts./clinic/wrongful/Causes/eyewitnessstudyO 

1 .htm (last visited July 28, 2006). The Innocence Project at the Cardozo School of 

Law has found that the most prevalent form of police and prosecutorial misconduct 

is the suppression of exculpatory evidence. Thirty-four percent of instances of 

police misconduct, and thirty-seven percent of instances of prosecutorial 

misconduct, involves the suppression of exculpatory material. See 

http://www.innocenceproject.org/causes/policemisconduct.php.

Brady violations and their impact upon the criminal justice system have also 

been analyzed in the particular context of capital cases: “A recent study of capital 

cases from 1973 to 1995 reported that one of the two most common errors 

prompting the reversal of state convictions in which the defendant was sentenced 

to death was the improper failure of police or prosecutors to disclose ‘important 

evidence that the defendant was innocent or did not deserve to die.’” United States 

v. Sampson, 275 F. Supp. 2d 49, 57 (D. Mass. 2003) (quoting James S. Liebman, et

-16-

http://www.law.northwestem.edU/depts./clinic/wrongful/Causes/eyewitnessstudyO
http://www.innocenceproject.org/causes/policemisconduct.php


al., A Broken System: Error Rates in Capital Cases, 1973-1995, at ii (2000)); see 

also Ken Armstrong & Maurice Possley, Trial & Error. How Prosecutors Sacrifice 

Justice to Win., Ch i. T r ib ., Jan. 10, 1999, at Cl (finding that since Brady, at least 

381 defendants nationally have had a homicide conviction thrown out because 

prosecutors concealed evidence suggesting innocence or presented evidence they 

knew to be false).

Courts have recognized the strong public interest in uncovering Brady 

violations, and therefore have upheld the use of the FOIA to procure such 

information. For example, in Ferri v. Bell, 645 F.2d 1213 (3d Cir. 1981), a federal 

prisoner sought access to the arrest record of an individual who testified against 

him at trial. The prisoner sought to show that the government had agreed to drop 

criminal charges against the individual in exchange for this testimony. The Third 

Circuit acknowledged that the prisoner’s own personal interests may have been the 

subjective reason he had filed the petition, because if “he could establish that such 

a deal was made, without his knowledge, Ferri might be entitled to a new trial.” Id. 

at 1218. Nonetheless, the panel observed that “[t]he public at large has an 

important stake in ensuring that criminal justice is fairly administered; to the extent 

disclosure may remedy and deter Brady violations, society stands to gain.” Id.

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The Third Circuit thus reversed the district court’s application of Exemption 7(C) 

and required that the materials be provided. See id.2

Similarly, following his murder conviction, Dan Bright learned through a 

response to his FOIA request that the FBI had been advised by a source that a 

different person (whose name had been redacted) was the actual killer, and that the 

government had failed to disclose this potentially exculpatory information before 

or during his trial. See Bright v. Ashcroft, 259 F. Supp. 2d 494, 497 (E.D. La. 

2003). When Bright requested an unredacted copy of the document in order to 

obtain the identity of the person who had been identified as the murderer, the 

government denied the request under Exemption 7(C). The district court rejected 

the government’s position, recognizing that, although Bright’s request would 

benefit him personally, production also would serve vital public interests. 

Specifically, the court stated that production of the unredacted copy would 

“confirm or refute whether the FBI is meeting its constitutional obligations as set 

forth in Brady v. M a r y l a n d i d .  at 500 n.17, and that where “a question of

2 Despite dictum in a vacated opinion of this Court questioning the 
continuing validity of Ferri, see Oguaju v. United States, 288 F.3d 448, 451 (D.C. 
Cir.), vacated, 541 U.S. 157 (2004), the Supreme Court did not hold in Reporters 
Committee that there could be no public interest in the government’s 
responsiveness to Brady requests. To the contrary, Reporters Committee held that 
a request for an individual’s criminal record could be authorized under the FOIA 
when it reveals something about an agency’s own (mis)conduct, thereby serving 
the overall purpose of the FOIA “to ensure that the Government’s activities be 
opened to the sharp eye of public scrutiny.” 489 U.S. 749, 773-74 (1989) 
(emphasis omitted) [“Government’s” emphasized in original].

-18-



innocence and law enforcement misconduct [was] at stake, the public interest is 

profoundly strong.” Id. at 500. After reviewing the unredacted document in 

camera, the district court granted Bright’s FOIA request, because “[t]he failure by 

law enforcement agencies to disclose the statement before his murder trial raises 

the stakes of the public interest and pays little currency to any claim of private 

interest.” Bright v. Ashcroft, 259 F. Supp. 2d 502, 502-03 (E.D. La. 2003). After 

Bright had served eight years in prison, his conviction was ultimately overturned in 

2004. See James Gill, High Court Steps Closer To Righting A Wrong, Times- 

Picayune (New Orleans, LA), April 16, 2004, Metro, at 7.

The FOIA has been used in a variety of other cases both to expose wrongful 

government withholding of exculpatory material and to overturn wrongful 

convictions obtained through such misconduct. Through MAIP’s collaboration 

with the 1CVA and its own investigations, MAIP has first-hand experience 

regarding the importance of FOIA statutes in uncovering exculpatory evidence 

wrongfully withheld by law enforcement from the defense. For example, a woman 

named Beverly Monroe was convicted of first-degree murder and sentenced to 

twenty years in prison for the death of her boyfriend. After her conviction, Ms. 

Monroe discovered, through a FOIA request, significant exculpatory evidence that 

had been withheld by the prosecution during the trial. Such evidence, including a 

medical examiner’s report and a physician’s report, suggested that her boyfriend

-19-



had been depressed and taking anti-depressant medication at the time of his death, 

and that his death might have been a suicide. See Monroe v. Angelone, 323 F.3d 

286, 294 (4th Cir. 2003). The district court consequently allowed Monroe to seek 

additional post-trial evidence of her innocence and ultimately granted her petition 

for habeas corpus in an order affirmed by the Fourth Circuit. Id. at 291; see also 

Jeffrey A. Kaufman & Alysa N. Zeltzer, Investigation Report For Beverly Ann 

Monroe (January 22, 2004), available at http://www.wcl.american.edu

innocenceproject/ICVA/supp_case.html (follow “Beverly Monroe” hyperlink).

MAIP also is currently investigating the murder of Catherine Fuller in 

Washington D.C. in 1984, for which thirteen members of a group calling 

themselves the “Eighth and H crew” were convicted, with many sentenced to life 

in prison. Through the FOIA, a Washington Post reporter uncovered a statement, 

never disclosed at trial, of a witness named Ammie Davis, who claimed that she 

had seen a man named James Blue, rather than the Eighth and H crew, commit the 

murder of Ms. Fuller. Other undisclosed statements in the file corroborated Ms. 

Davis’s story. Ms. Davis was killed by James Blue one week before the Fuller trial. 

See Patrice Gaines, A Case o f  Conviction, WASH. POST, May 6, 2001, at F I .

There are many other examples. See, e.g., United States v. Wilson, 289 F. 

Supp. 2d 801, 802 (S.D. Tex. 2003) (vacating conviction of former CIA officer for 

exporting explosives to Libya because the government knowingly used false

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http://www.wcl.american.edu


evidence against him and suppressed exculpatory evidence); Adam Zagorin, A 

Rogue’s Revenge, T im e , Dec. 19, 2005, at 63 (explaining that judge threw out 

Wilson’s conviction largely on the basis of newfound evidence Wilson unearthed 

through FOIA requests); United States v. Stifel, 594 F. Supp. 1525, 1528, 1542-43 

(N.D. Ohio 1984) (vacating sentence, after defendant had served eleven years in 

prison, because “the prosecution possessed] a mass of evidence tending to show 

that [he] was not the perpetrator of the crime” that it did not divulge to the 

defendant, who learned about it through FOIA requests); In re Pratt, 82 Cal. Rptr. 

2d 260, 271 (Dist. Ct. App. 1999) (affirming grant of habeas petition to 

incarcerated prisoner after serving twenty-seven years in prison due to denial of 

critical Brady material), Edward J. Boyer, Pratt Reportedly Settles Case for $4.5 

Million, L.A. TIMES, Apr. 26, 2000, at A1 (referencing FBI documents released 

under the FOIA that were instrumental in release of defendant Pratt); People v. 

Wahad, 154 Misc. 2d 405, 422 (N.Y. Sup. Ct. 1993) (vacating conviction of 

defendant who served 19 years in prison because FBI wrongfully withheld 

exculpatory materials at trial, materials that were later obtained by defendant 

through the FOIA), Ronald Sullivan, Court Erupts as Judge Frees an Ex-Panther, 

N.Y. T im es, Mar. 23, 1990, at B1 (discussing prosecution’s failure to overturn 

critical FBI tapes to defendant Wahad at time of trial, tapes which were later 

obtained through the FOIA).

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As the foregoing examples show, analyzing Brady violations can, and often 

does, reveal frequent or systemic problems in the conduct of criminal prosecutions. 

This information is therefore the furthest thing from facts “relevant only as to the 

unique facts and circumstances surrounding plaintiffs criminal proceeding,” or 

“akin to exposing a single, garden-variety act of misconduct,” as the district court 

characterized it. Op. 12 n.8 (internal quotation marks omitted). Rather, it is at the 

center of a vital and ongoing public discussion about the proper functioning of our 

criminal justice system.

C. The Public Has Other Interests in the Disclosure of Information 
Pertaining To Possible Brady Violations.

Not only did the district court err in dismissing the public’s strong interest in 

documenting governmental Brady violations in order to evaluate and improve the 

proper functioning of the criminal justice system, but it failed to appreciate two 

other important public interests that are implicated by the disclosure of Brady 

violations.

First, wrongful incarceration, appeals, and retrials impose substantial costs 

upon the taxpayers, and the public has an obvious interest in avoiding these 

wasteful expenditures. The ICVA Report determined that the average time from 

conviction to exoneration in the eleven study cases was close to eleven years, 

during which time Virginia taxpayers spent over $2 million on imprisoning these 

innocent convicts. (ICVA Report, p. 1) Moreover, even after an innocent person

-22-



is freed, the financial cost to the public does not end. The government will often 

then need to spend hundreds of thousands of additional dollars to identify, 

prosecute, and incarcerate or execute the actual perpetrator of the crime, as well as 

to compensate the innocent defendant for his erroneous term of imprisonment.

At least eighteen states and the District of Columbia have laws providing for 

compensation for wrongful convictions. See Patrice Brymner, Where 

Massachusetts Fits among States in Compensation for the Wrongfully Convicted, 

Apr. 2004, available at http://www.cjpc.org/rest_other_states.htm (including table 

on state legislation for compensation for erroneous convictions as of March 2005) 

(last visited July 28, 2006). Jeffrey Cox, who was one of the subjects of the Report, 

was awarded $750,000 by the Virginia General Assembly after his habeas petition 

was granted on the basis of undisclosed exculpatory evidence. (ICVA Report, p. 

15). This sum was low compared to the $37.7 million judgment paid by Cook 

County to four men who were wrongly imprisoned for murder. See Robert Becker, 

Ford Heights 4 To Get Their Settlement From County, CHI. Trib., Mar. 16, 1999 at 

B3. In the District of Columbia there is no cap on the potential compensation that 

a wrongfully convicted person could receive. Thus, the timely use of FOIA 

requests can, if they result in exculpatory information, reduce the taxpayers’ bill 

for imprisoning innocent individuals and providing them with the compensation 

that they are due. The FOIA thereby acts as a check against the government

-23-

http://www.cjpc.org/rest_other_states.htm


wasting taxpayer money on defense of post-conviction appeals or incarceration 

when the defendant is actually innocent.

Second, the public has a safety and security interest in discovering Brady 

violations, because as long as the wrong person is imprisoned for a crime, the 

actual perpetrator will often remain at large, and might commit further crimes. For 

example, in the case of David Vasquez, four brutal assaults might have been 

prevented if the true perpetrator had been identified and prosecuted in the first 

instance. (ICVA Report, p.l).

Indeed, exculpatory evidence that tends to exonerate a defendant by its 

nature frequently tends to inculpate someone else. See, e.g., Bright, 259 F. Supp. 

2d at 502 (another person had bragged about committing a murder for which 

Bright had been convicted); Sampson, 275 F. Supp. 2d at 57 (FBI informants, 

rather than defendants, were true murderers of Edward Deegan); St i f  el, 594 F. 

Supp. at 1532-34 (exculpatory evidence strongly suggested that father (not 

defendant) had sent bomb to estranged wife’s home, killing son). Thus, the 

disclosure of Brady violations serves as an important safeguard for the public to 

ensure that its government officials are directing their resources to protecting them 

from actual criminals, as opposed to from the innocent.

In short, the district court neglected several additional significant public 

interests beyond the overriding interest in policing the criminal justice system. By

-24-



themselves, these additional interests show that the district court erred in finding 

no public interest in the disclosure of information pertaining to possible Brady 

violations.

D. The District Court Offered No Valid Ground For Its Contrary 
Holding That There Is No Public Interest In Exposing Brady 
Violations.

The district court did not discuss or dispute any of the foregoing 

considerations in reaching its categorical ruling that no public interest was at stake 

in obtaining documentation of Brady violations. The district court failed to 

consider any of the substantial public interests in Brady-related FOIA requests and 

failed to conduct the balancing required by the Supreme Court in Favish.

Nor did the district court base its determination that there was no public 

interest in the requested materials on the facts of this particular case. To the 

contrary, it assumed that, as a matter of law, there is never any public interest in 

materials relating to potential Brady violations. Op. 12 (“It is settled that an 

individual’s interest in Brady material is private in nature.”) In support of this 

proposition, the district court relied primarily on language in Oguaju v. United 

States, 288 F.3d 448 (D.C. Cir. 2002), a decision that the Supreme Court 

subsequently vacated and remanded for reconsideration in light of its intervening 

decision in Favish, see 541 U.S. 157 (2004). In the vacated Oguaju opinion, the

-25-



panel had indicated that “exposing a single garden variety act of misconduct would 

not serve the FOIA’s purpose.” 288 F.3d at 451.

On remand from the Supreme Court after consideration of Favish, however, 

this ground was conspicuously absent from the opinion of this Court reinstating its 

previous judgment of affirmance. In the second, and controlling, Oguaju decision, 

the sole ground for affirming the use of Exemption 7(C) to the request for Brady- 

related materials at issue in that case was the fact-specific, evidentiary ground that 

the requester had “produced no evidence that ‘would warrant a belief by a 

reasonable person’ that the Department of Justice mishandled his Brady request.” 

Oguaju v. United States, 378 F.3d 1115, 1116 (D.C. Cir. 2004), cert, denied, 544 

U.S. 983 (2005). Not only does Oguaju fail to support the district court’s 

categorical legal holding, but a more natural reading suggests that the Court 

implicitly rejected that interpretation by failing to include it as a basis on remand 

after having done so before vacatur. This latter reading makes sense, because the 

intervening Favish decision made clear that a FOIA request can be justified in an 

Exemption 7(C) analysis if the requester can show that an “investigative agency or 

other responsible officials acted negligently or otherwise improperly in the 

performance of their duties.” Favish, 541 U.S. at 173.

In his January 1, 2004 FOIA request, Mr. Martin explains that his FOIA 

request supports “the public interests in safeguarding the fairness of the criminal

-26-



justice system . . . showing the need for government reform (including reform of 

the government’s FOIA policies), exposing government wrongdoing, doing justice 

in particular criminal cases, and recognizing the public interest in inquiring into 

wrongful withholdings of Brady material, its causes and cures.” Pl.’s Appx. to 

Cross-Motions for Summ. J. at 83 (Findings, Conclusions and Recommendation of 

the United States Magistrate Judge, Case Nos. 3:93-CR-316-G; 3-97-CV-963-G) 

(“Pl.’s Appx.”).

Even apart from the adequacy of Mr. Martin’s FOIA request in particular, 

MAIP’s overriding concern is against letting stand the district court’s per se ruling 

that there is no public interest in learning of potential Brady violations. Because 

the FOIA was intended to give the public the opportunity to monitor government 

wrongdoing, including misconduct by law enforcement agencies, this Court should 

hold that requests related to withheld Brady materials are well within the scope of 

FOIA and supported by strong public interests.

II. THE DISTRICT COURT ERRED BY SUGGESTING THAT A FOIA 
REQUESTER MUST AFFIRMATIVELY PROVE 
GOVERNMENTAL MISCONDUCT BEFORE BEING ENTITLED 
TO ^RADY-RELATED MATERIALS.

The district court stated that it was “assuming, without deciding,” Op. 12, 

that Mr. Martin had produced “evidence that would warrant a belief by a 

reasonable person that the alleged Government impropriety might have occurred.” 

Id. at 10-11 (quoting Favish, 541 U.S. at 174). In dictum, however, the district

-27-



court suggested that Mr. Martin might not meet this burden of proof because in a 

section 2255 hearing in the Northern District of Texas, “the magistrate judge never 

specifically found  that the government withheld exculpatory information.” Op. 11 

(emphasis added). The district court thus suggested that in order for an individual 

to obtain Brady-related materials through the FOIA based on allegations of 

government impropriety, the requester must actually prove that government 

impropriety did occur. This is in direct conflict with Favish, which requires only a 

reasonable belief (not a judicial finding or dispositive proof) that government 

impropriety might have occurred.

The district court relied upon several pre-Favish decisions that had required 

FOIA requesters to come forward with “compelling evidence” of government 

impropriety in order to obtain disclosure. Op. 11. See Quinon v. FBI, 86 F.3d 

1222, 1231 (D.C. Cir. 1996); see also Davis v. D ep’t o f  Justice, 968 F.2d 1276, 

1282 (D.C. Cir. 1992) (same); Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 

(D.C. Cir. 1991) (same). The district court’s requirement of a “specific[] finding” 

by a court that government wrongdoing occurred is even more stringent than the 

“compelling evidence” standard adopted by those cases. Op. 11. But in any event, 

that standard has now been abrogated by Favish. In that case, the Supreme Court 

squarely held that in the Exemption 7(C) context, a requester must merely

-28-



“produce evidence that would warrant a belief by a reasonable person that the 

alleged Government impropriety might have occurred.” 541 U.S. at 174.

Mr. Martin more than satisfied the Favish standard. The magistrate judge 

for the district court of the Northern District of Texas specifically found that the 

“exclusion of th[e] evidence” requested by Mr. Martin was “significant,” and 

accordingly required an evidentiary hearing on the “information and its importance 

in the underlying trial o f ’ Mr. Martin. PI.’s Appx. at 91. While that court 

ultimately found that the stringent standard for a section 2255 petition had not been 

met, that ruling in no way conflicts with the conclusion that the much lower “might 

have occurred” standard applicable in the FOIA context is satisfied. See also Pl.’s 

Appx. at 96 (“[T]he Court agrees that this [undisclosed] information could have 

altered the defense strategy.”). The magistrate judge’s support of Mr. Martin’s 

request for the information -  even if the magistrate judge was not ultimately 

convinced that this clearly affected his conviction -  is far more weighty evidence 

of a belief in possible government wrongdoing than Oguaju’s proffer of his own 

testimony as a basis for alleged government impropriety. Oguaju, 378 F.3d at 

1117 (“An assertion of that sort . . .  is too insubstantial to warrant reopening the 

record in this case.”). The fact that the magistrate judge ordered a full Brady 

hearing is an ample evidentiary ground to support at least a reasonable suspicion

-29-



that Z?ra<7y-related impropriety might have occurred in Mr. Martin’s criminal 

prosecution. Id.

CONCLUSION

For the foregoing reasons, amici request that this Court reverse the district 

court’s determination that there is no public interest in Brady material, and that

requests for such material is beyond the scope of the FOIA.

Respectfully submitted,

Theodore M. Shaw 
Director-Counsel

Norman J. Chachkin 
Christina A. Swarns 
NAACP Legal Defense & 
Educational Fund, Inc.
99 Hudson Street, 16lh Floor 
New York, NY 10013-2987 
(212) 965-2200

Counsel for Amicus Curiae 
NAA CP Legal Defense Fund

Michael S. Fried 
Laura Tuell Parcher 
Joseph W. Clark 
Juliet J. Karastelev 
Jones Day
51 Louisiana Ave N.W.
Washington D.C. 20001 
(202) 879-3939

Counsel fo r Amici Curiae 
Mid-Atlantic Innocence Project 
ACLU o f  the National Capital Area

O f counsel:
Arthur B. Spitzer 
American Civil Liberties Union 

o f the National Capital Area 
1400 20th Street, N.W. 
Washington, D.C. 20036 
(202)457-0800

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, 
TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P. 29 
and Fed. R. App. P. 32(a)(7)(B) because:

X this brief contains 6,790 words, excluding the parts of the brief
exempted by Fed. R. App. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type-style requirement of Fed. R. App. P. 32(a)(6) because:

X this brief has been prepared in a proportionally spaced typeface
using Microsoft XP in 14 pt. Times New Roman.

Michael S. Fried 
Jones Day
51 Louisiana Avenue, N.W. 
Washington, D.C. 20001 
(202) 879-3939 (Telephone) 
(202) 626-1700 (Telecopy)

Counsel for Amici Curiae



CERTIFICATE OF SERVICE

I hereby certify that on August 1, 2006, the foregoing BRIEF OF AMICI 
CURIAE IN SUPPORT OF APPELLANTS, was served by causing two copies to 
be delivered by U.S. MAIL to each of the following attorneys:

Edwin E. Huddleson, III
Counsel fo r Appellant, Harold Martin
Bank of America Building
1090 Vermont Ave, N.W., Suite 814
Washington, D.C. 20005
(202)543-2233

R. Craig Lawrence, Assistant U.S. Attorney 
Michael Joseph Ryan, Assistant U.S. Attorney 
Claire M. Whitaker, Assistant U.S. Attorney 
Kenneth L. Wainstein, U.S. Attorney 
Counsel fo r Appellee, U.S. Department o f Justice 
U.S. Attorney’s Office, Civil Appellate 
555 4th Street, N.W., 10th Floor 
Washington, D.C. 20530 
(202)514-7159

Jaclyn C. Taner, Counsel 
Counsel for Appellee, FDIC 
Legal Division, Appellate Unit 
Federal Deposit Insurance Corporation 
3501 North Fairfax Drive 
VS-D-7006
Arlington, VA 22226-3500

Michael S. Fried 
Jones Day
51 Louisiana Ave, N.W. 
Washington, D.C. 20001
(202) 879-3939 
(202) 626-1700