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State's highest court hears Suffolk case that could broaden prosecution's duty to turn over evidence in criminal cases

The state's highest court heard arguments Tuesday on a Suffolk murder case that could result in prosecutors statewide having to seek out damaging information on detectives and turn it over to defense lawyers.

The case arises out of the 2000 conviction of Mark Garrett, who was found guilty of killing a pregnant 13-year-old Wyandanch girl. His appeal argues that prosecutors should have informed him about an unrelated lawsuit accusing a detective of beating a confession out of a defendant, as he claims happened to him at the hands of that same detective.

At issue in the case is a fundamental rule of criminal law, known as the Brady rule, which generally requires prosecutors to turn over to defendants any evidence that could convince a jury the defendant isn't guilty.

In this case, Garrett's appellate attorney, Steven Feldman of Uniondale, argued that if Garrett's trial lawyer had known about a federal lawsuit against the homicide detective, the jury might have reached a different verdict. Last year, the Appellate Division's Second Department agreed.

Suffolk Assistant District Attorney Anne E. Oh told the court that is not what the Brady rule intends. "Prosecutors are not obligated to find evidence that is favorable to the defense," she said, particularly if it's nothing more than an unverified accusation in a suit.

Several judges suggested there wouldn't be much harm to the prosecution to seek and turn over such evidence.

"You make it sound so disastrous," Judge Robert Smith said.

And Judge Eugene Pigott Jr. said it may not be appropriate for prosecutors to decide what's useful to defendants, suggesting they should turn over everything.But other judges said requiring prosecutors to investigate detectives could be burdensome, particularly if detectives aren't cooperative.

"They're going to have to research everyone," warned Judge Victoria Graffeo.

Garrett, now 49, was charged in 1998 with asphyxiating Lytecia Cooper, the pregnant daughter of his brother's girlfriend. He was convicted of second-degree murder, based in part on a confession he signed, but also on circumstantial evidence tying him to the crime. Garrett always claimed that Suffolk homicide detectives -- including Det. Vincent O'Leary -- beat the confession out of him.

Years after his regular appeals were exhausted, he found out that a Suffolk Det. O'Leary had been sued in 1998 for beating a confession out of another man. He asked Suffolk County Court Judge James Hudson to set aside his conviction. When Hudson refused, the Appellate Division, Second Department overturned that decision.

"Notably, Garrett's entire defense turned on the same exact claim - that his confession was coerced by a rogue detective,"Feldman wrote in his appeal. "If the jury had learned that the Detective had been sued for the identical misconduct, there is a reasonable possibility, and probability, that the jury might not have credited the confession.Feldman said prosecutors should have known about the suit -- simply by asking O'Leary -- and notified Garrett's lawyer about it.

Since the Appellate Division's ruling and the Court of Appeals decision to hear the case, a bizarre wrinkle has developed. Lawyers discovered that the Det. O'Leary in the federal suit, which was settled, is James O'Leary, not Vincent O'Leary, so the case is now a hypothetical one.

But because the Court of Appeals has to rule on the issues raised by the case, that makes no difference and it must proceed as if it were the same detective in both cases.

Suffolk prosecutors, however, argued that the Appellate Division's decision improperly broadens the Brady rule. Oh said it would force prosecutors to investigate their witnesses to find "any allegation of misconduct, founded or otherwise, made against any member of the prosecution team by any person."

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