When a discovery violation is discovered mid-trial, does a remedy that fails to order the disclosure of the withheld evidence violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution?

QUESTION PRESENTED ‘ This case presents this Court with the opportunity to explain and adopt a reasonable remedy for Brady violations that come to light prior to or during trial. At present, the jurisprudence regarding Brady violations has focused on the appellate standard for remedying a Brady violation that is discovered after trial. This case demonstrates the lack of guidance for Brady violations that are discovered. prior to or during trial. . In this case, Defendant-Appellant David McGuire (Mr. McGuire”) faced murder charges that had the potential to place him in jail for the rest of his life. Yet, through either corruption or mistake, the investigating officer who was first on the scene and alone with the body, Officer Kenneth Bolton, failed to turn on or save his body camera evidence. Then when it was revealed mid-trial that Officer Bolton was , the subject of a public corruption investigation, the Cuyahoga County Prosecutor’s office flatly refused to turn over the exculpatory evidence of the ongoing investigation into Officer Bolton. Faced with this Brady and discovery violation, the trial judge considered a mistrial, but notably did not order the government to turn over the Brady/Giglio evidence of police misconduct. Specifically, the court did not order the State to turn over the Brady/Giglio evidence regarding Officer Bolton who was at the center of all the suspicious issues regarding this missing body camera evidence. This Court’s Brady current jurisprudence does not sufficiently address the issue of what is the appropriate remedy for pre or mid-trial violations. To address : : this violation the law should have required the trial court to tailor the remedy to ; i 3587146.1 . protect Mr. McGuire’s constitutional right to due process and a fair trial. As such, the best way to ensure Mr. McGuire’s constitutional right to a fair trial would have been to offer a remedy that included an order demanding that the government actually turn over crucial impeachment evidence of the primary investigating . officer, Officer Bolton. Other possible remedies include instructing the jury on the government’s decision to not turn over the evidence or giving an adverse inference instruction. Accordingly, this case provides this Court with the opportunity to give teeth to the remedies for real-time Brady violations by explaining that, when a trial court is faced with a discovery violation, the remedy is not simply a redo with the same violation. In other words, a mistrial without ordering the state to turn over the exculpatory evidence, is insufficient. Instead the remedy in response to the . present mid-trial discovery violation is to order a new trial and order the state to turn over its investigatory file for Officer Bolton. Without this remedy, the remedy of a mistrial was insufficient because a new trial would have been infected with the same discovery violation. Based on this narrative, the question presented for review is: When a discovery violation is discovered mid-trial, does a remedy that fails to order the disclosure of the withheld evidence violate the Due | Process Clause of the Fourteenth Amendment of the United States | Constitution? ii 3587146.