Judge Kato Crews, nominee for US District Court for the District of Colorado, appeared on Capitol Hill Wednesday as part of his confirmation hearings and became the latest nominee who was unable to answer a basic legal question by Sen. John Kennedy (R-LA).
Crews, who currently serves as a federal magistrate in Colorado, was unable to describe what the landmark US Supreme Court case Brady v. Maryland was about. Brady, decided in 1963, “held that withholding exculpatory evidence violates due process ‘where the evidence is material either to guilt or to punishment.'” Seems like a pretty important case (and principle) to be crystal clear about.
.@SenJohnKennedy: “Do you know what a Brady motion is?”
Biden federal trial court nominee Kato Crews: “It’s not coming to mind at the moment what a Brady motion is.” pic.twitter.com/oVPEnE4CfF
— Conservative War Machine (@WarMachineRR) March 22, 2023
Here is a transcript of the exchange:
CREWS: Senator, in my four and a half years on the bench I don’t believe I’ve had the occasion to address a Brady motion in my career.
KENNEDY: Do you know what a Brady motion is?
CREWS: Senator, in my time on the bench I’ve not had occasion to address that, and so it’s not coming to mind at the moment what a Brady motion is.
KENNEDY: Do you recall the US Supreme Court case, Brady v. Maryland?
CREWS: I do recall the name of the case, Senator, yes.
KENNEDY: And what did it hold?
CREWS: “I believe that the Brady case — well, Senator, I believe the Brady case involved something regarding the Second Amendment. I have not had an occasion to address that. If that issue were to come before me, I would certainly analyze that Supreme Court precedent and apply it, as I would need to, to the facts in front of me.”
As Bloomberg Law noted, Crews hasn’t presided over any criminal cases during his time as a federal magistrate judge:
Serving as a federal magistrate judge since 2018, Crews has presided over six cases that have gone to verdict or judgment, none of which have been criminal cases, according to his Senate Judiciary Questionnaire.
Crews noted in his questionnaire answers the limited role magistrate judges play in criminal cases, which he said includes considering petitions for issuance of search warrants, conducting preliminary proceedings, and presiding over the trial and final disposition of misdemeanor cases.
Prior to becoming a federal magistrate judge, Crews practiced civil litigation, focused on employment law and probate, but he began his career as an attorney with the US National Labor Relations Board.
Within criminal trials, especially significant felony cases, requests for Brady disclosure are routine, and are a key reason for reversal on appeal. Wikipedia isn’t always a great resource for reliable legal information, but they do a decent job of explaining what a Brady request is:
A defendant’s request for a “Brady disclosure” refers to the holding of the Brady case, and the numerous state and federal cases that interpret its requirement that the prosecution disclose material exculpatory evidence to the defense. Exculpatory evidence is “material” if “there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.” Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses and evidence that could allow the defense to impeach the credibility of a prosecution witness.
While the case is Criminal Law 101 and a known quantity for court observers (and therefore should have been an easy question for Crews to answer), it’s also been in the news recently regarding January 6 defendants and the revelation that hours of video footage from the Capitol that day hadn’t been seen by anyone except some Democrat staffers on the J6 committee. In case it’s not obvious why Brady would be relevant there, the snippets of video that have recently been released tell a very different story than the January 6 Committee and the Department of Justice have been telling, and could very well exonerate J6 defendants and be key in appealing convictions that have already occurred.
In fact, Rep. Barry Loudermilk (R-GA), chair of the House Administration Committee’s oversight panel, has said that said that the access to the footage “for accused rioters and others would be granted on a ‘case-by-case basis.'”
“Everyone accused of a crime in this country deserves due process, which includes access to evidence which may be used to prove their guilt or innocence,” Loudermilk told POLITICO in a statement. “It is our intention to make available any relevant documents or videos, on a case-by-case basis, as requested by attorneys representing defendants.”
As Justice William O. Douglas, who penned the Brady decision, wrote, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment… Society wins not only when the guilty are convicted, but when criminal trials are fair.” Crews’ ignorance of what the decision holds and his linking the name “Brady” with gun control shows where his priorities are and that he cannot be allowed near a federal court bench.
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