2. The United States Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), the Due Process Clause of the Fourteenth Amendment requires the State in a criminal case to disclose to the defense exculpatory evidence. The Florida Supreme Court has held in a capital post-conviction proceeding that: "upon request, the State is obligated to disclose any document in its possession which is exculpatory. This obligation exists regardless of whether a particular document is work product or exempt from chapter 119 discovery." Johnson (Terrell) v. Butterworth, 713 So. 2d 985, 986 (Fla. 1998)(citations omitted). In Johnson, the Court found that the State’s obligation to disclose favorable evidence was not extinguished by either a conviction or a sentence of death. It makes no difference that a capital defendant is litigating his case in post-conviction: "[T]he State is under a continuing obligation to disclose any exculpatory evidence." Id. at 987; see also Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996)(finding that Brady obligation continues in post-conviction).

4. As the Florida Supreme Court recently explained: "Under Brady, the government’s suppression of favorable evidence violates a defendant’s due process rights under the Fourteenth Amendment. See Brady, 373 U.S. at 86 (suppression of confession is violation Fourteenth Amendment)." Rogers v. State, Slip Op. at 7, Case No. 91,044, __ So.2d __ (Fla. February 15, 2001). Favorable evidence has been defined by the United States Supreme Court as exculpatory evidence. Under due process, this includes evidence which impeaches a State’s witness or the reliability of the State’s criminal investigation. United States v. Bagley, 473 U.S. 667, 676 (1985).

5. The Supreme Court made clear in Kyles v. Whitley, 514 U.S. 419 (1995), that due process requires the prosecutor to fulfill his obligation of knowing what material, favorable and exculpatory evidence is in the State’s possession and disclosing that evidence to defense counsel:

Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result.

Kyles, 514 U.S. at 439. See Strickler v. Greene, 527 U.S. 263 (1999). In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of favorable evidence known to others acting on the government’s behalf." Kyles, 514 U.S. at 437; Rogers v. State, slip op. at 9. The United States Supreme Court specifically indicated that information impeaching "the reliability of the investigation" was evidence favorable to the accused within the meaning of Brady. Kyles, 514 U.S. at 446. Thus, evidence demonstrating a shoddy or negligent investigation by law enforcement must be disclosed by the prosecution in order to comply with due process. Kyles, 514 U.S. at 447.

6. In Strickler v. Greene, the United States Supreme Court reiterated the "special role played by the American prosecutor" as one "whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done." 527 U.S. 263, 281 (1999), quoting Berger v. United States, 295 U.S. 78, 88 (1935). The Court also repeated that a prosecutor has a duty to disclose exculpatory evidence even though there has been no request by the defendant, 527 U.S. at 280, and that the prosecuting attorney has a duty to learn of any favorable evidence known to individuals acting on the government’s behalf. Strickler, 527 U.S. at 281. The Florida Supreme Court reiterated this holding recently, "In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.’" Rogers v. State, 2001 WL 123869, *3, quoting Kyles, 514 U.S. at 437.

7. The prosecutor must reveal to defense counsel any and all information that is helpful to the defense, including impeachment evidence, whether that information relates to guilt/innocence or punishment, and regardless of whether defense counsel requests the specific information. It is of no constitutional importance whether a prosecutor or a law enforcement officer is responsible for the misconduct. Williams v. Griswald, 743 F.2d 1533 (11th Cir. 1984).