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Court will give jury instruction to cure ‘Brady’ violation

Virginia Lawyers Weekly//November 20, 2020

Court will give jury instruction to cure ‘Brady’ violation

Virginia Lawyers Weekly//November 20, 2020

Where defendant moved to quash a murder indictment because of the commonwealth’s untimely disclosure of exculpatory evidence, the court will deny the motion but will give the jury an adverse inference instruction regarding the evidence.


Defendant Gonzalez was indicted for first-degree murder and felonious use of a firearm. On Jan. 13 and Jan. 14, 2020, the commonwealth provided Gonzalez discovery material, including a knife found at the scene, which had not been analyzed for DNA or fingerprints.

The commonwealth provided Gonzalez with 99 pages of supplemental discovery on Aug. 18, 2020. In the last few pages, there was a report from Detective JV. The report included a statement from a witness, which the court refers to as “The Witness.” Gonzalez, “[f]or the very first time … learned of two things.” First, the witness stated that Gonzalez said to the decedent, “Don’t get close, I have a gun.” Second, the witness saw the decedent with a knife in his hand.

The only information collected from the witness was a phone number. “This was the first and last time Detective JV saw or even attempted to speak with The Witness.” Gonzalez asked for the witness’s contact information. The commonwealth refused the request.

Gonzalez moved to quash the information. The court heard the motion on Oct. 23, 2020. Gonzalez argued the nine-month delay in providing the witness’s statements was a Brady violation that “irreparably damaged his right to call for evidence in his favor[.]” He also faults the commonwealth for not testing the knife found at the scene. This, too, Gonzalez argued, was a Brady violation because it was unlikely that the knife could be analyzed by the commonwealth and the defense before trial commenced on Jan. 21, 2021.

The commonwealth responded that the witness statements had been available to Gonzalez for several months, so there was no Brady violation. As to the knife, the commonwealth asserted continuance of the trial would provide sufficient time for testing.

“Defendant argues that all three prongs of Workman have been established to prove a Brady violation. Workman v. Commonwealth, 272 Va. 633, 645 (2006). First, the statements were exculpatory. Second, the exculpatory information provided to Detective JV was withheld from the defense for approximately nine months. Third, the clearly exculpatory information confirms that the decedent was armed with a knife and warned by Mr. Gonzalez to stay away from him; important factors establishing self-defense.

“A few hours after the October 23, 2020 hearing, the Commonwealth provided Defense Counsel with The Witness’s date of birth and phone number. Additionally, the Commonwealth sent the knife for DNA and fingerprint analysis. Defense Counsel has been unable to locate The Witness, even with the additional information provided by the Commonwealth. Moreover, the Commonwealth and the Police Department have attempted to locate The Witness, without success. He appears to be in the wind.”

‘Brady’ violation

“The question presented to the Court is what Mr. Gonzalez’s pre-trial remedy is when the Commonwealth has violated Brady by untimely disclosing exculpatory evidence. …

“The late disclosure of The Witness’s statement constitutes a Brady violation under Workman’s three prongs:

First, the Commonwealth conceded in her argument that The Witness’s statement is exculpatory.

Second, … the Commonwealth had a duty to learn of any exculpatory evidence known to Detective JV, and such evidence has been withheld from Defense Counsel since November 2019.

Finally, the failure to earlier disclose prejudiced Mr. Gonzalez because it came so late that the information disclosed cannot be effectively used at trial given that The Witness’s current whereabouts are unknown.”

As to the knife, “an eyewitness, The Witness, saw the decedent with a knife approaching the accused. The knife became obviously exculpatory to Defense Counsel only after Detective JV’s statement came to light. It was the Commonwealth’s responsibly under Brady to have the knife analyzed for DNA and fingerprints.

“Since the October 23, 2020 hearing, the Commonwealth has submitted the knife for DNA and fingerprint analysis. However, given the delay of laboratory analysis, it is unlikely that Mr. Gonzalez will have enough time to review the analysis and plan a proper trial strategy based on what the analysis might provide. The Accused remains incarcerated.”


“Quashing the indictment is an inappropriate remedy. Typically, Brady violations result in the accused being entitled to a new trial, not a blanket acquittal. … The Court finds that a jury instruction describing the Commonwealth’s disclosure duty and its breach of that duty is the appropriate remedy in this case.”

In addition to an adverse inference instruction, “should the Defendant so elect, he will be granted a self-defense instruction at his request. This is without prejudice to seeking a self-defense instruction based on the evidence taken, in its totality.”

Commonwealth v. Gonzalez, Case No. FE-2020-326, Nov. 5, 2020, Fairfax County Cir. Ct. (Mann). Jessica Greis-Edwardson for the commonwealth, Robert Whitestone, Tiffany Welch for Gonzalez. VLW 020-8-125, 17 pp.

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