Dennis Kozlowski Court Filing

Alan S. Lewis CARTER LEDYARD & MILBURN LLP 2 Wall Street New York, New York 10005 (212) 732-3200 Attorneys for L. Dennis Kozlowski UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------X : L. DENNIS KOZLOWSKI, : : Petitioner, : : -against: : WILLIAM HULIHAN, Superintendent, Midstate : Correctional Facility, and ANDREW CUOMO, : Attorney General of the State of New York, : : Respondents. : : -------------------------------------------------------------X

No._________

MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS ON BEHALF OF L. DENNIS KOZLOWSKI

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 4 SUMMARY OF ARGUMENT ................................................................................. 4 STATEMENT OF FACTS ...................................................................................... 10 The Investigation ................................................................................................ 10 The Indictment .................................................................................................... 15 The First Trial ..................................................................................................... 15 Defendants’ Subpoena for Impeachment Materials and Tyco’s Motion to Quash the Subpoena ...................................................................................... 16 The Trial Court’s Decision to Quash the Subpoena ........................................... 23 The Second Trial ................................................................................................. 27 The Appellate Division Decision........................................................................ 27 The Appeal to New York’s Highest Court ......................................................... 28 The New York Court of Appeals’ Decision ....................................................... 30 The Motion to Reargue ....................................................................................... 35 The Petition for Certiorari................................................................................... 36 POINT I MR. KOZLOWSKI’S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WAS VIOLATED WHEN THE TRIAL COURT QUASHED HIS SUBPOENA FOR THE EARLIEST RECORDED STATEMENTS OF PROSECUTION WITNESSES ............................................................................... 37 A. The Subpoena Sought Specifically Identified Evidence That Was Likely to Be of Significant Impeachment Value to the Defense................... 39 B. In Light of the New York Court of Appeals’ Finding That the Materials Sought Were Potentially Exculpatory (and Therefore of Constitutional Dimension), Its Decision to Sustain the Quashing of the Subpoena Based on an Expansive Construction of a Civil Procedure Discovery Statute Violated Mr. Kozlowski’s Constitutional Rights ............ 41 6495321.4

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C. Under the Plain Terms of New York’s Statute Governing Access to Litigation Materials, Petitioner Was Entitled to Obtain the Subpoenaed Documents ................................................................................ 49 1. Petitioner Met the “Substantial Need” Test, as the Court of Appeals Implicitly Found ......................................................................... 50 2. Petitioner Demonstrated His Inability to Obtain the “Substantial Equivalent” of the Subpoenaed Statements ............................................. 51 a. Prior Inconsistent Statements Are Unique, Not Replicable ................ 52 b. The Prior Inconsistent Statements Sought by Defendants Were Unique for a Second, Case-Specific Reason: They Were Recorded During a “Window in Time” That Had Closed by the Time Defendants Were Charged ......................................................... 55 c. By Finding Only a Past-tense Failure to Obtain the Substantial Equivalent of the Subpoenaed Statements, New York’s Courts Implicitly Found That Defendants Met the Present-Tense Temporal Requirement of the Statute ................................................. 57 D. The Trial Court Did Not Have Discretion to Quash the Subpoena............... 60 E. Quashing the Subpoena Violated Petitioners’ Constitutional Rights............ 62 1. By Conditioning Petitioner’s Right to Access Exculpatory Materials on a Requirement That was Arbitrary and Served No Legitimate State Interest, New York’s Courts Violated Petitioner’s Right to Present a Defense ....................................................................... 63 F. The Error Was Not Harmless ........................................................................ 70 G. The Appropriate Remedy is to Grant the Writ of Habeas Corpus. ............... 78 POINT II NO ADEQUATE AND INDEPENDENT STATE-LAW GROUND FORECLOSES HABEAS REVIEW OF PETITIONER’S CLAIMS..................... 85 A. The Court of Appeals Did Not Make a Plain Statement That Petitioner’s Constitutional Claims Were Procedurally Defaulted .................................... 86 B. Procedural Default is Not an Adequate State Ground on Which to Preclude Federal Review of Petitioner’s Constitutional Claims in This Case................................................................................................................ 92 1. The Trial Court’s Decision to Quash Necessarily Rested on its 6495321.4

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Conclusion that Defendants’ Interest in the Subpoenaed Materials was Not of Constitutional Magnitude and Therefore, Defendants’ Perfect Compliance with the State Procedural Rule, e.g., Explicit Reference to the Constitution When Objecting to the Trial Court Ruling, Could Not Have Altered the Trial Court’s Decision ................... 93 2. The Asserted State Ground Was Not Firmly Established. ....................... 96 3. Given the Realities of Trial, Defendants Substantially Complied with the Procedural Requirement ............................................................. 99 CONCLUSION ...................................................................................................... 104

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TABLE OF AUTHORITIES FEDERAL CASES Page Alderman v. United States, 394 U.S. 165 (1969) ...................................................... 45 Arizona v. Evans, 514 U.S. 1 (1995) ......................................................................... 86 Barr v. City of Columbia, 378 U.S. 146 (1964) ........................................................ 96 Bouie v. City of Columbia, 378 U.S. 347 (1964) ...................................................... 96 Brecht v. Abrahmson, 507 U.S. 619 (1993) .............................................................. 69 Brookhart v. Janis, 384 U.S. 1 (1968) ...................................................................... 41 Burden v. Zant, 498 U.S. 433 (1991) ........................................................................ 38 Chambers v. Mississippi, 410 U.S. 284 (1973) .............................................37, 63, 93 Cheney v. United States District Court, 542 U.S. 367 (2004) .................................. 45 Christoffel v. United States, 200 F.2d 734 (D.C. Cir. 1952) ................................... 100 Cone v. Bell, 129 S. Ct. 1769 (2009) ........................................................................ 85 Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) .............................................92, 97, 99 Cox v. Miller, 296 F.3d 89 (2d Cir. 2002)................................................................. 88 Crane v. Kentucky, 476 U.S. 683 (1986) ......................................................37, 62, 63 Crawford v. Washington, 541 U.S. 36 (2004) .......................................................... 63 Davis v. Alaska, 415 U.S. 308 (1974) ................................................................passim Davis v. Strack, 270 F.3d 111 (2001)........................................................................ 58 6495321.4

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Delaware v. Van Arsdall, 475 U.S. 673 (1986) ........................................................ 63 Flores v. Demskie, 215 F.3d 293 (2d Cir. 2000) ....................................................... 52 Ford v. Georgia, 498 U.S. 411 (1991) ...................................................................... 95 Green v. Georgia, 442 U.S. 95 (1979) ...................................................................... 63 Harris v. Reed, 489 U.S. 255 (1989).......................................................84, 85, 86, 89 Hathorn v. Lovorn, 457 U.S. 255 (1982) .................................................................. 95 Holmes v. South Carolina, 547 U.S. 319 (2006) ................................................62, 93 James v. Kentucky, 466 U.S. 341 (1984) ............................................................92, 95 Jencks v. United States, 353 U.S. 657 (1957) .....................................................53, 63 Jimenez v. Walker, 458 F.3d 130 (2d Cir. 2006) ....................................37, 85, 87, 90 Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000) ..............................................39, 69, 86 Justice v. Hoke, 90 F.3d 43 (2d Cir. 1996) ............................................................... 39 Kotteakos v. United States, 328 U.S. 750 (1946) ...................................................... 69 Kozlowski v. New York, 129 S. Ct. 2775 (2009) ................................................... 3, 35 Lee v. Kemna, 534 U.S. 362 (2001) ..................................................91, 92, 95, 98, 99 In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988) ................................... 100 Michigan v. Long, 463 U.S. 1032 (1983)............................................................85, 89 Michigan v. Lucas, 500 U.S. 145 (1991) .................................................................. 62 NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................ 96 6495321.4

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Palermo v. United States, 360 U.S. 343 (1959) ..................................................53, 63 Pennsylvania v. Ritchie, 480 U.S. 39 (1987) .....................................................passim Pinckney v. Keane, 920 F.2d 1090 (2d Cir. 1990) .................................................... 38 Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) ......................................... 96 Rock v. Arkansas, 483 U.S. 44 (1987) ................................................................37, 62 Rogers-Bey v. Lane, 896 F.2d 279 (7th Cir. 1989) ................................................... 89 Rose v. Lane, 910 F.2d 400 (7th Cir. 1990) .............................................................. 86 Rovario v. United States, 353 U.S. 53 (1957) .....................................................65, 66 Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994) ............................................... 85 Smith v. Illinois, 390 U.S. 129 (1968) ....................................................................... 63 Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1969) ............................. 51 Staub v. City of Baxley, 355 U.S. 313 (1958) .....................................................92, 96 Taylor v. Illinois, 484 U.S. 400 (1988) ...............................................................37, 63 Three Affiliated Tribes v. Wold Engineering, P.C., 467 U.S. 150 (1984) ................ 89 U.S. v. Nixon, 418 U.S. 684 (1974) .........................................................31, 32, 45, 46 U.S. v. Valenzuela-Bernal, 458 U.S. 858 (1982) ...................................................... 67 United States v. Agurs, 427 U.S. 97 (1976) .............................................................. 39 United States v. Andolschek, 142 F.2d 503 (1944) .............................................81, 82 United States v. Carmichael, 216 F.3d 224 (2d Cir. 2000)...................................... 77 6495321.4

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United States v. Leon, 468 U.S. 897 (1984) .............................................................. 45 United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) ....................................... 46 United States v. Nobles, 422 U.S. 225 (1975).....................................................51, 62 United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007) ......................................... 81 United States v. Scheffer, 523 U.S. 303 (1998)......................................................... 62 United States v. Stein, 541 F.3d 130 (2d Cir. 2008) ................................................. 77 Victor v. Nebraska, 511 U.S. 1 (1994) ................................................................85, 86 Washington v. Texas, 388 U.S. 14 (1967) ................................................................. 63 Willis v. Cohn, 956 F.2d 1165 (7th Cir. 1992) .......................................................... 90 Wilson v. United States, 221 U.S. 361 (1911)......................................................... 100 Wright v. Georgia, 373 U.S. 284 (1963) ................................................................... 96 Ylst v. Nunnemaker, 501 U.S. 797 (1991) ...........................................................85, 89 Young v. Dretke, 356 F.3d 616 (5th Cir. 2004) ......................................................... 38 STATE CASES Babcock v. Jackson, 40 Misc. 2d 757 (Sup. Ct. Monroe County 1963).................. 57 Careccia v. Enstrom, 174 A.D.2d 48 (3d Dept. 1992) ............................................ 55 Collins v. Jamestown Mutual Insurance Co., 32 A.D.2d 725 ) ............................... 42 Dimechel v. S. Buffalo Railway Co., 80 N.Y.2d 184 (1992) .............................54, 55 Drizin v. Sprint Corp., 3 A.D.3d 388 (1st Dept. 2004) ........................................... 50 6495321.4

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Fireman's Insurance Co. of Newark, N.J. v. Gray, 41 A.D.2d 863 (3d Dept. 1973) ................................................................................................... 42 Goldberg v. Hirschberg, 10 Misc. 3d 292, 299 ....................................................... 50 Kane v. Her-Pet Refrigeration Inc., 181 A.D.2d 257 (2d Dept. 1992) ................... 55 Kaplan v. Einy, 209 A.D.2d 248 (1st Dept. 1994)................................................... 55 Lamitie v. Emerson Electric Co., 208 A.D.2d 1081 (3d Dept. 1994) ..................... 57 Milone v. General Motors Corp., 84 A.D.2d 921 (4th Dept. 1981) ........................ 42 People v. Ayala, 142 A.D.2d 147 (2d Dept. 1988) .................................................. 97 People v. Combest, 4 N.Y.3d 341 (2005) ................................................................ 78 People v. Duncan, 177 A.D.2d 187 (2d Dept. 1992)............................................... 97 People v. Edwards, 95 N.Y.2d 486 (N.Y. Ct. App. 2000) ...................................... 97 People v. Gissendanner, 48 N.Y.2d 543 (1979) ...............................................passim People v. Johnson, 144 A.D.2d 490 (2d Dept. 1988) .............................................. 97 People v. Kozlowski, 47 A.D.3d 111 (1st Dept. 2007) ........................................ 2, 27 People v. Kozlowski, 10 N.Y.3d 767 (2008) .............................................................. 2 People v. Kozlowski, 11 N.Y.3d 767 (2008) .....................................................passim People v. Kozlowski, 11 N.Y.3d 904 (2009) .....................................................passim People v. Mezon, 80 N.Y.2d 155 (1992) ...........................................................97, 98 People v. Seabrook, 241 A.D.2d 325 (1st Dept. 1997) ........................................... 97 6495321.4

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People v. Swartz, 10 N.Y.3d 772 (2008) ............................................................... 2, 3 People v. Thurston, 619 N.Y.S.2d 465 (4th Dept. 1994) ...................................... 100 People v. Young, 79 N.Y.2d 365 (1992) .................................................................. 52 See EEOC v. Safeway Store, Inc., 2002 WL. 31947153 (N.D. Cal. Sept. 16, 2002) .................................................................................................... 71 Spectrum System International Corp. v. Chemical Bank, 78 N.Y.2d 371 (1991) ......................................................................................... 50 Tyco Int’l Ltd. v. Swartz, 2005 WL 6175342 (Sup. Ct. N.Y. County 2005) ................................................................................................... 96 Yasnogordsky v. City of New York, 281 A.D.2d 541 (2d Dept. 2001) .................... 50 DOCKETED CASES People ex rel. Spitzer v. Grasso, No. 401620/04 (N.Y. Co. Sup. Ct. April 11, 2006) ..............................................................................................73, 74 FEDERAL STATUTES 28 U.S.C.A. § 2254 .................................................................................................... 1 28 U.S.C.A. § 391 .................................................................................................... 83 Article 240 of the Criminal Procedure Law............................................................. 42 Fed. Rule Civ. Proc. 26(b)(3)................................................................................... 51 Jencks Act, 18 U.S.C. § 3500 (1957)....................................................................... 33 STATE STATUTES 3A Weinstein-Korn-Miller, N.Y.Civ.Prac., ¶ 3101.51 ............................................ 42 6495321.4

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Connors, Practice Commentaries, 7B McKinney's C.P.L.R., C:3101:29, at 78 (2005 ed.) ................................................................................................... 50 N.Y. C.P.L.R. § 240.44 ............................................................................................ 53 N.Y. C.P.L.R. § 3101(a) .......................................................................................... 41 N.Y. C.P.L.R. § 3101(c) .......................................................................................... 17 N.Y. C.P.L.R. § 3101(d) ...................................................................................passim N.Y. Penal Law § 105.10 ........................................................................................... 1 N.Y. Penal Law § 155.42 ........................................................................................... 1 N.Y. Penal Law § 175.10 ........................................................................................... 1 MISCELLANEOUS General Business Law § 352-c(5) .............................................................................. 1 John Gibeaut, Junior G-Men, 89-Jun A.B.A. J. 46, 70 (2003) ................................ 80 N.Y. Court of Appeals, Annual Report of the Clerk of the Court 2008, available at http://www.nycourts.gov/ctapps/AnnRpt2008.pdf, at 7 ................. 28 The Evolving role of General Counsel: Leadership in Challenging Times, August 2006 NLJ Supp., at 5-6 .......................................................................... 72

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Petitioner L. Dennis Kozlowski, through undersigned counsel, submits this memorandum of law in support of his petition, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. PRELIMINARY STATEMENT Mr. Kozlowski, the former Chief Executive Officer of Tyco International, Ltd. (“Tyco”), and Mark H. Swartz (“Swartz”), Tyco’s former Chief Financial Officer (together, “Defendants”), were charged in New York state court with grand larceny and other offenses, the gravamen of which was the claim that they awarded themselves substantial bonus compensation to which they were not entitled. Defendants’ first trial lasted seven months and, after eleven days of jury deliberations, ended in a mistrial. Following a second, four-month, trial, Mr. Kozlowski was convicted of grand larceny in the first degree, N.Y. Penal Law § 155.42 (12 counts), falsifying business records in the first degree, N.Y. Penal Law § 175.10 (eight counts), one count of conspiracy in the fourth degree, N.Y. Penal Law § 105.10, and one count of violating General Business Law § 352-c(5) (the “Martin Act”).1 He was sentenced to 8 1/3 to 25 years’ incarceration.2

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Co-defendant Swartz was convicted on similar counts. Mr. Kozlowski was sentenced to prison terms of 8 1/3 to 25 years on four of the counts, 5 to 15 years on four other counts and 1 1/3 to 4 years on the remaining counts, with all sentences to run concurrently. 2

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Defendants appealed to the Appellate Division, First Department, which affirmed the judgments of conviction on November 15, 2007.

People v.

Kozlowski, 47 A.D.3d 111 (1st Dept. 2007). In its decision, the Appellate Decision held that the trial court properly quashed the pre-trial subpoena that Defendants had issued to a law firm that conducted an internal investigation for Tyco for the recorded statements made by Tyco directors who thereafter became prosecution witnesses (the “Director-Witnesses”). The recorded statements were not part of the record on appeal and have never been inspected by any court. The Appellate Division averred that the unseen documents “were not material and exculpatory.” The court also rejected Defendants’ other claims, including their challenge to the sufficiency of the evidence. On October 16, 2008, the New York Court of Appeals affirmed the Appellate Division’s order. People v. Kozlowski, 11 N.Y.3d 223 (2008).3 With respect to the subpoena issue, the court rejected the Appellate Division’s analysis, finding instead that Defendants had made the threshold showing necessary to the enforcement of the subpoena – Defendants pointed to facts that gave rise to the inference that the materials were “reasonably likely to . . . contradict the [trial

3

Defendants received permission to appeal to the Court of Appeals on February 28, 2008. People v. Kozlowski, 10 N.Y.3d 767 (2008) (Ciparick, J); People v. Swartz, 10 N.Y.3d 772 (2008) (Ciparick, J). 6495321.4

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testimony] of key witnesses for the People.” Id. at 243. Moreover, the court also agreed with Defendants that the materials sought were not protected as opinion work product. Id. at 245. The court nevertheless upheld the quashing of the subpoena, based upon an argument that had not been made, in any form, by the prosecution in its 214 page brief (or by either amicus). Specifically, applying its interpretation of a New York civil discovery statute, the court concluded that Defendants were disqualified from obtaining the potentially exculpatory first recorded statements of key prosecution witnesses because Defendants failed to attempt to replicate the statements – something the court said Defendants could have done by attempting their own interviews of the witnesses at “an earlier time.”4 Although the opinion included a discussion of the nature of the evidence against Defendants, the court did not state its reason for rejecting Defendants’ legal challenge to the sufficiency of the evidence. Id. at 230-34. On January 13, 2009, the New York Court of Appeals denied Defendants’ motion for reargument. People v. Kozlowski, 11 N.Y.3d 904 (2009). On June 8, 2009, the United States Supreme Court denied their petition for a writ of certiorari. Kozlowski v. New York, 129 S. Ct. 2775 (2009). Petitioner is in the custody of Respondent Hulihan pursuant to the judgment. 4

As explained below, the court’s use of the phrase “earlier time” necessarily referred to the period before Defendants were accused of the charges on which they were later convicted. 6495321.4

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QUESTION PRESENTED Whether the quashing of Petitioner’s subpoena for the recorded, investigatory-stage statements of the key prosecution trial witnesses – statements which were found likely to be exculpatory – based on Petitioner’s failure to attempt to interview the witnesses himself before he had been accused of the crimes for which he was tried, violated Petitioner’s constitutional rights to present a defense and to due process of law under the Sixth and Fourteenth Amendments. SUMMARY OF ARGUMENT The central accusation against Mr. Kozlowski was that his receipt of four separate bonus payments from Tyco constituted a theft. The accusation relied on testimony from Tyco’s directors that they had not approved the bonuses. To challenge this testimony, Mr. Kozlowski sought to obtain the earliest recorded statements by the directors about the disputed bonuses.

Because of the

circumstances surrounding the statements, as New York’s highest court ultimately found, the statements were “reasonably likely to . . . contradict the statements of key witnesses [the directors] for the [prosecution].” Kozlowski, 11 N.Y.3d at 243. The court, after also recognizing that no party contended that the statements were attorney-client privileged, concluded that the statements (made to a law firm conducting an internal investigation) were likewise not protected as opinion work

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product. Id. at 244-45. Nevertheless, the court sustained the quashing of the Defendants’ subpoena, merely because the Defendants had failed to interview the witnesses before the indictment was returned. Id. at 245–46. As the United States Supreme Court has repeatedly articulated, a criminal defendant’s right to present his defense is protected by the Sixth and Fourteenth Amendments. The right is violated when a defendant is deprived of access to evidence that is material to his defense, based on a rule that is either arbitrary or disproportionate to the purpose it is designed to serve. In other words, a right to present a defense claim has two elements: (1) prohibition on access to or the effective use of evidence material to the defense (the “materiality element”); (2) based on a rule that is either arbitrary or disproportionate to purpose it is designed to serve (the “arbitrariness element”). Mr. Kozlowski’s claim easily satisfies both elements. First, there can be no question that the evidence sought was material, given the New York court’s finding that it was likely to “contradict” key prosecution testimony. The New York court explained its reason for this finding. Because Tyco allowed Mr. Swartz to continue to exercise substantial authority as Tyco’s CFO after the directors were interviewed by the law firm Boies Schiller & Flexner, L.L.P (“BSF”) and made aware of the fact the investigation was potentially 6495321.4

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targeting Mr. Swartz, and also because Tyco paid Mr. Swartz $50 million in severance when he resigned, it is unlikely that the Directors’ interview statements were consistent with their trial testimony, two years later, that the bonuses were larcenies because they were paid without the directors’ approval.

Moreover,

because the court’s finding about the statements’ likely exculpatory character is factual in nature, it is entitled to deference on habeas review. Furthermore, Tyco’s continued retention of Swartz after the directors were interviewed by BSF strongly suggests that the directors’ statements to BSF would have been as or nearly as valuable to Kozlowski, as impeachment material, as the statements would have been to Swartz. Both Kozlowski’s and Swartz’s bonuses were based on the same transactions and contractual documents that each Defendant pointed to as entitling them to receive the bonuses (Swartz received half of the amount paid to Mr. Kozlowski). Moreover, even if the initial statements of the Director-Witnesses revealed only that they had been informed of the bonuses that Mr. Swartz was later accused of stealing, such an inconsistency with their trial testimony would still have been extremely valuable to Mr. Kozlowski’s defense. Had Mr. Kozlowski had been able to demonstrate to the jury that the directors “changed their tune” with respect to so important a subject as the propriety of the

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bonuses paid to Mr. Swartz, the directors’ credibility would have been effectively undermined. Likewise, there is no serious question that the explanation given by New York’s high court for sustaining the lower court’s quashing of the subpoena for this important evidence – Defendants failed to fulfill a condition purportedly contained in a state statute that, before they are even charged with a crime, they must seek interviews with prosecution witnesses – is arbitrary. Indeed, there are several, independent, reasons why this is so. The first, most profound reason is also self evident: the court’s rule required Mr. Kozlowski, as a condition of subpoena enforcement, to investigate a criminal charge before it had been leveled. The imposition of such a rule can also not be considered proportionate, or rationally related, to the purpose the rule is theoretically designed to serve. To the extent such a rule can even be said to have a purpose, it is to motivate subpoena issuers to first try to obtain the substantial equivalent of that which they seek through subpoena. However, the rule has no purpose when applied to a criminal defendant who seeks to obtain prior, inconsistent witnesses statements because such statements have no substantial equivalent. Instead, prior inconsistent statements are unique. And most fundamentally, the rule cannot rationally be expected to motivate criminal defendants to investigate cases that do not exist, and a potential 6495321.4

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criminal defendant faced with such a requirement would be in no position to assess how to go about investigating the uncharged, undeveloped and perhaps unanticipated case. The New York court’s rule is also arbitrary for two other, independent reasons. First, the statute which the court said contained the rule, C.P.L.R. § 3101(d)(2), does not protect a non-party, like Tyco, from a subpoena for its litigation materials. By its plain terms, the statute, which regulates discovery in civil cases, only limits disclosure of litigation materials when they are sought, in a specific litigation, from one party to that litigation by another party to that litigation. Second, even if the statute could be interpreted to apply to discovery requests made to non-parties, Mr. Kozlowski unquestionably complied with all of the statute’s conditions.

The condition which the New York court said Mr.

Kozlowski had not complied with – an effort to conduct interviews to defend a case at time before that case exists – is not contained in any statute. Finally, to the extent that there are any questions about the applicability of the New York statute – whether it applies or how it should be applied – in the context of a subpoena issued by a criminal defendant for important defense evidence, those questions must be resolved by giving substantial deference to the constitutional rights of the criminal defendant. 6495321.4

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Instead, the New York court

strictly and mechanistically applied what it understood a state civil discovery statute to require, in a fashion that unconstitutionally elevated a corporation’s statutory, qualified privilege above a criminal defendant’s constitutional right to present a defense. In sum, Mr. Kozlowski was deprived of access to constitutionally significant evidence on grounds that were entirely arbitrary. The error devastated the defense because it prevented the impeaching of prosecution witnesses on the key subject in dispute. The writ should therefore issue.

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STATEMENT OF FACTS The Investigation This case arose out of an internal investigation conducted for Tyco by BSF. Tyco retained BSF in April, 2002, at which time BSF’s mandate was to investigate Tyco’s payment of an investment banking fee to Frank Walsh (“Walsh”), a Tyco director. PA207-08 (A253-54) (David Boies (“Boies”)).5 Approximately two months later Tyco’s board expanded the scope of the investigation to include such subjects as all financial transactions between the Company and its top management and directors. PA4-6 (Tr.1 605-07), PA22-23 (Tr.2 1890-91) (John Fort (“Fort”)); PA208-12 (A254-58) (Boies). Tyco ultimately filed two SEC Form 8-K’s that “outlined all the findings the investigation produced” in an effort to restore investor confidence in the Company. PA123 (A38) (Fort); see also PA372 (Swartz Exhibit 1010) (10-Q Filing Details; update sentence as well). During its investigation, BSF attorneys interviewed many Tyco employees and directors and memorialized those interviews in notes and memoranda. In 5

Numbers preceded by “PA” refer to pages of the Petitioner’s Appendix filed with this memorandum of law. Cross-references are also provided to the State appellate record. Numbers preceded by “A” refer to pages of the single volume Appendix submitted to the New York Court of Appeals. Numbers preceded by “AD” refer to pages of the seven volume Appendix submitted to the Appellate Division, First Department. Numbers preceded by “RA” refer to pages of the Prosecution’s Appendix submitted to the New York Court of Appeals. Numbers preceded by “Tr.1” refer to pages of the transcript of the first trial (which ended in a mistrial). Numbers preceded by “Tr.2” refer to pages of the transcript of the second trial. Names in parentheses following transcript numbers denote the testifying witness(es).

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certain instances, the notes and memoranda were not provided to the prosecution (and hence not to Defendants). Nevertheless, the subjects of the interviews were disclosed when Tyco produced privilege logs to Defendants in related civil litigation.6

The following excerpts from BSF’s privilege logs summarize

interviews about subjects that were central to the criminal case: i. June 6, 2002 notes of a conversation with Tyco Director/interim CEO John Fort regarding Walsh payment. ii. June 6, 2002 notes and memoranda of conversations with Treasurer Michael Robinson on many subjects, including insurance, wire transfer procedures, the Key Employee Loan Program, wire transfers to directors, the Frank Walsh wire transfers, the relocation program or any other Tyco loans, and wire transfers for artwork, furnishings, and corporate apartments. iii. June 7 and 10, 2002 notes and memoranda of conversations with employee Patricia Prue concerning the Key Employee Loan Program, lines of authority at Tyco, Tyco corporate executives’ residences purchases and disbursements under the Tyco relocation program and the Key Employee Loan Program, reporting KEL and relocation loans on W-2 statements, reimbursement for use of corporate aircraft, Swartz’s reported W-2 income, related party transactions and purchase/pooling activities. iv. June 11, 2002 notes and memoranda of conversations with Tyco SVP of Finance Mark Foley regarding Tyco’s chain of command, PwC audits, the 6

These logs were later appended to motion papers filed by Defendants with the trial court.

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Key Employee Loan Program, invoice approvals, art purchases, real estate and other issues. v. August 12 and 13, 2002 notes of telephone interviews with directors Ashcroft, Berman, Bodman, Fort, Foss, Lane, Pasman and Slusser about the Key Employee Loan Program, Relocation Loans, compensation events, property transactions, use of company assets, charitable contributions, and related party transactions. PA140-85 (A160-205). Most of these interviewees were witnesses at both the first trial (which ended in a mistrial) and the retrial. As is evident from the quoted privilege logs, the subjects discussed by the directors and officers during these interviews were plainly relevant to the criminal charges on which Defendants were convicted. New York’s high court ultimately made such a finding with respect to the Director-Witness interviews (those conducted on June 6 and August 12/13) that were the focus of the state appeal. Kozlowski, 11 N.Y.3d at 242-43. Moreover, the statements were not merely relevant. As the New York Court of Appeals also later found, the behavior of Tyco and its Directors after the statements were made suggested the likelihood that the statements were inconsistent with the Directors’ trial testimony. In making this finding, New York’s high court noted that the following facts were “undisputed.” [A]fter the directors were made aware of at least some of defendants' questionable activities through the Boies Schiller investigation, they continued to permit Swartz to 6495321.4

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exercise substantial authority as the CFO of Tyco until September 11, 2002-the day before he was indicted-and voted to pay him $50 million in severance just one day after the last of the relevant director interviews. Kozlowski, 11 N.Y.3d at 243. In other words, as the New York high court found, it was unlikely that Tyco would have continued to repose substantial authority in Mr. Swartz (and then pay him $50 million) if Tyco’s directors had told BSF that Mr. Swartz had taken tens of millions of dollars from Tyco without any authority for him to do so. Kozlowski, 11 N.Y.3d at 242-43. And, because Tyco did repose that authority in Mr. Swartz and did pay him that substantial, additional sum, it is doubtful that the directors’ statements to BSF were consistent with the directors’ trial testimony, more than two years later, that the bonuses were totally unauthorized. Mr. Kozlowski left Tyco on June 3, 2002. Around that time, the New York County District Attorney’s Office began investigating whether criminal activity had occurred at Tyco and the grand jury subpoenaed a wealth of Tyco documents. In response, Tyco asserted various privileges and resisted production. When the District Attorney’s Office complained that the privilege review was causing “delay,” the Company relented. PA137 (A154). Two days before the grand jury’s term was to expire, Tyco produced all previously withheld documents to the prosecution (as well as to the SEC).

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PA132-33, PA137 (A149-50, A154).

Although an untold amount of attorney-client and work-product material was produced, the Company claimed a “reservation of privilege” pursuant to Tyco’s “common interest with the District Attorney’s Office” in investigating the matter. PA137, PA 189 (A154, A209).7 In addition to producing volumes of privileged documents, BSF lawyers “consult[ed] regularly with the District Attorney’s Office about the proceedings,” “respond[ed] to any questions that the District Attorney’s Office ha[d]” and were “committed” “to provid[ing] answers to questions or documents that exist.” PA128 (A81) (Boies). Witnesses were interviewed and prepared by BSF before being made available to the prosecutors. As the lead prosecutor later described (during the proceedings in the related prosecution of Tyco’s former General Counsel, Mark Belnick), the prosecution had “been told [by BSF] there are documents we should look at, there are witnesses we should talk to.” PA130 (A143). Indeed, earlier on, when a different firm was conducting the internal investigation, a prosecutor sat in during one of the witness interviews. See PA141, entry 6 (A161, entry 6) (noting presence of ADA John Moscow at “privileged” interview).

In sum, BSF and the District Attorney’s office had a very close

7

Throughout these proceedings, BSF also represented Tyco in various related civil litigation, including actions against Defendants to recover the bonus money.

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relationship – the District Attorney could obtain any information or documents held by BSF simply by asking. The Indictment Mr. Kozlowski was charged with 12 counts of grand larceny in the first degree (the “Larceny Counts”), of which Tyco was the purported victim. The larcenies fell into three categories: (1) eight counts related to the claim Petitioner had stolen bonus compensation; (2) one count related to the claim Petitioner had caused Tyco to pay an investment banking fee to Walsh for his role in facilitating a Tyco corporate merger; and (3) three counts related to the claim Petitioner had used Tyco funds to purchase artwork. Petitioner was also charged with nine counts of falsifying business records in the first degree, one count of conspiracy in the fourth degree, and one count of violating the Martin Act. Similar charges were brought against Swartz. The First Trial The prosecution called the Director-Witnesses to testify that they had not approved the disputed bonuses. After a seven-month trial and eleven days of jury deliberations, the case ended in a mistrial when the court determined that a juror’s ability to deliberate had been compromised by the content of a letter she received PA9-12 (AD736.1-736.4).

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Defendants’ Subpoena for Impeachment Materials and Tyco’s Motion to Quash the Subpoena Before the commencement of the re-trial, Defendants issued a subpoena duces tecum to BSF for the recorded interviews of the Director-Witnesses.8 Kozlowski, 11 N.Y.3d at 234-355. As described above, the subjects discussed at these interviews included the directors’ knowledge and/or authorization of Defendants’ bonus compensation, a undisputedly critical subject given that, as later stated by the New York Court of Appeals, the prosecution “center[ed] on the charge that defendants’ bonuses were not approved by the Compensation Committee or the board of directors.” Id. at 241 (emphasis added). And as also mentioned above, because the directors continued to repose “substantial authority” in Swartz (and paid him $50 million) after the directors were interviewed about the Defendants’ compensation, the New York high court also found that the statements were “reasonably likely to contain material that could contradict the statements of key witnesses for the People.” Id. at 243. Defendants sought the statements directly from Tyco because the prosecution did not produce them. Although Tyco and the prosecution had worked very closely together – e.g., Tyco produced more than 10 million pages to the 8

Although the subpoena originally sought production of additional materials, Defendants thereafter narrowed the subpoena and, on appeal, focused exclusively on the quashing of the subpoena for the notes of the particular interviews of Directors, conducted on June 6 and August 12/13, relating to compensation events. See People v. Kozlowski, 11 N.Y.3d at 234. 6495321.4

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prosecution and described its relationship with the prosecuting agency as a “common interest agreement” – the prosecution represented that it had never asked Tyco for the first recorded statements of the Tyco directors who became key prosecution witnesses.9 Accordingly, Mr. Kozlowski and Mr. Swartz issued a subpoena for the statements directly to BSF. Tyco, responding to that subpoena, filed a motion to quash. Tyco argued that Defendants had not met the standard for subpoena enforcement enunciated in a leading New York Court of Appeals case, People v. Gissendanner, 48 N.Y.2d 543 (1979).

Gissendanner, as Tyco noted, requires a criminal defendant to

demonstrate that his subpoena is not merely a “fishing expedition,” but rather, is “reasonably likely” to “produce relevant and exculpatory evidence.” PA265, PA267 (Tyco Memorandum of Law in Support of Motion to Quash (“Tyco Mem.”) at 4, 6).

9

Whether Tyco orally disclosed some of the substance of the recorded interviews to the prosecution is a different question. In BSF’s motion papers, it denied having “orally presented to the District Attorney the substance of everything contained in its attorneys’ memoranda and notes.” PA188 (A208) (emphasis added). Notably, this “denial” left open the possibility that Tyco disclosed some or much of the content of the interview notes to the prosecutor’s office. This possibility is real, given the comment of the lead prosecutor that while the results of the BSF investigation were often not reported directly to him, “[p]erhaps there are other people in the District Attorney’s Office who got more information.” PA235-36 (RA 160-61). The defense asked for an opportunity to question the BSF lawyers about the subject of the firm’s disclosures to the prosecution, but the trial court denied the request. PA 366-67 at 31-32 (Tr.2 12/21/04 at 31-32). 6495321.4

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In addition to challenging whether Defendants met this threshold requirement for subpoena enforcement, Tyco also made fallback arguments in support of its motion to quash. First, it contended that the interview notes were Tyco’s opinion work product and therefore absolutely protected from disclosure, pursuant to N.Y. C.P.L.R. § 3101(c), even if the notes contained relevant and potentially exculpatory information. PA266, PA268 (Tyco Mem. at 5, 7). Alternatively, Tyco argued that even if the materials sought were determined not to constitute opinion work product, the subpoena should still be quashed. On this branch of its argument, Tyco contended that the materials should be classified and analyzed as belonging to a different category – materials prepared in anticipation of litigation (“litigation materials”). In this event, Tyco contended Defendants “could not satisfy” the requirements of a New York civil discovery statute, C.P.L.R. § 3101(d)(2). PA268, n.3 (Tyco Mem. at 7, n.3). The statute, which governs requests by one party for the disclosure of litigation materials possessed by another party to the same litigation, requires a showing by the party seeking litigation materials that it “is unable” to obtain the substantial equivalent of those materials (without undue hardship).

Tyco apparently assumed that the

statute was applicable even though it was not a party to the case in which its materials were sought. 6495321.4

Tyco, also apparently assuming that interviews

18

theoretically conducted by criminal defendants (e.g., Kozlowski and Swartz) of prosecution witnesses (e.g., Tyco directors) would be treated as the legal “substantial equivalent” of interviews conducted by the witnesses’ employer, argued that Defendants were ineligible to receive the notes and memoranda on the theory Defendants had not shown an inability to “interview [the] witnesses himself.” PA268, n.3 (Tyco Mem. at 7, n.3). In sum, Tyco’s argument was that Defendants’ post-indictment interviews, had they occurred, would have been the “substantial equivalent” of BSF’s pre-indictment interviews.10 In opposition, Defendants argued that the subpoena easily satisfied the “more than a fishing expedition” threshold and explained why the materials had the potential to undercut the credibility of critical prosecution witness testimony. PA256 at 24, PA259 at 36 (RA213 at 24, RA216 at 36) (specifically noting that after the interviews of the Director-Witnesses, Tyco continued to treat Swartz as 10

Tyco also asserted that the materials were protected by the attorney-client privilege. In response, Defendants argued that any attorney-client privilege that might at one time have attached to the materials (recordings of conversations between BSF investigators and Tyco directors) had been waived by such acts as the giving of testimony (without objection by Tyco) by various high ranking Tyco employees and directors about their conversations with Tyco’s lawyers. See PA250 (RA194). The trial court never ruled on Tyco’s claim of attorney-client privilege, focusing its privilege analysis exclusively on Tyco’s work-product argument. PA19196 (A211-16); see also Kozlowski, 11 N.Y.3d at 242 (stating that “the trial court . . . confin[ed] its written opinion on the subpoena application to questions concerning the applicability of the work product and trial preparation privileges”). In any event, the attorney-client privilege argument, which Tyco advanced only in the trial court, is irrelevant to this Petition because the state courts, at every level, failed to endorse or even rule on Tyco’s claim of attorney-client privilege and because the prosecution, on appeal, abandoned the attorney-client privilege argument entirely. See Kozlowski, 11 N.Y.3d at 244. 6495321.4

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though he “had [not] done anything wrong,” which went directly to “the credibility of directors who [now] say, we found out Mark Swartz [received] an ADT bonus, we never approved that”) (emphasis added). New York’s high court ultimately agreed with Defendants on this score. See Kozlowski, 11 N.Y.3d at 243 (finding that the subpoenaed materials, if produced, would be reasonably likely to support an inference that “the director witnesses . . . changed their tune [about Defendants’ innocence] after the District Attorney obtained an indictment”). Defendants also argued that the materials covered by the subpoena were not protected from disclosure as opinion work product, making explicit that they sought only to discover facts (the directors’ raw statements), not the attorneys’ opinions, and agreed that any expression of opinion should be redacted from the interview notes.

PA256 at 22-23 (RA213 at 22-23) (Transcript of Hearing).

Ultimately, New York’s high court agreed with Defendants on this subject as well. Kozlowski, 11 N.Y.3d at 244-45. Defendants also disputed Tyco’s alternate argument, the notion that they had both an obligation and an ability to obtain the “substantial equivalent” of the subpoenaed interviews. As Defendants explained, the subpoenaed materials could not be replicated because the interviews were conducted during a “window of time” that had long since closed – the period after the investigation had been 6495321.4

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commenced but before Defendant Swartz’s employment as CFO had been terminated and Defendants indicted. PA256 at 24-25 (RA213 at 24-25); PA257 at 26 (RA214 at 26). In other words, and as the Court of Appeals later held, the statements were the earliest recordings of the Director-Witnesses’ positions on the key issue in the trial, and the fact that the directors continued to employ Swartz as CFO after those statements were made [and paid him $50 million] gave rise to a sufficiently high likelihood that the statements were inconsistent with the directors’ trial testimony. Kozlowski, 11 N.Y.3d at 242-43.11 Finally, Defendants asserted the view that, even if the materials were categorized as opinion work product or litigation materials, the court should have nevertheless ordered disclosure, simply because of the materials’ unique importance to the defense of a criminal case. See PA191-92 (A211-12) (Trial

11

Later in the same opinion, the Court of Appeals inconsistently tasked Defendants with having “made no effort to show any ‘undue hardship’ that would have prevented them from securing their own ‘substantial[ly] equivalent’ interviews with the director-witnesses (see CPLR 3101[d][2]).” Kozlowski, 11 N.Y.3d. at 245. As argued below, this completely missed the point. It was not that Defendants had shown an actual inability to interview the Director-Witnesses, but that they were not legally, or logically, required to attempt such interviews: Post-indictment interviews conducted by Defendants, even if theoretically possible, could not be the “substantial equivalent” of pre-indictment interviews conducted by BSF because the statements memorialized the directors’ views “before their motives had changed,” PA 314, n.13 (Swartz Court of Appeals Brief at 29 n.13), that is, before the directors “changed their tune” about Defendants’ guilt, PA243 (RA187) (Trial Court Proceedings). Indeed, the Court of Appeals specifically concluded that Defendants’ allegation that the directors had changed their tune “after the District Attorney obtained an indictment” was among the facts that supported the inference the pre-indictment statements would have “contradict[ed]” the Directors’ trial testimony. Kozlowski, 11 N.Y.3d at 243. 6495321.4

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Court Opinion) (acknowledging Defendants’ position that even if the documents are protected as “work product and trial preparation materials,” “they are nevertheless subject to disclosure”); PA194 (A214) (describing Defendants’ position as “work product protection should not apply because the contents of the requested memoranda and notes are…relevant to th[e] [criminal] case”). In this vein, Defendants repeatedly stated their position that enforcement of their subpoena was critical and that quashing the subpoena would therefore impair their ability to present their defense. For example, Defendants noted that it would be “fundamentally unfair” if the trial court were to thwart Defendants’ right to compulsory process by allowing Tyco “to hide behind” the privileges it claimed. PA238 (RA182).

Defendants also emphasized that the interview notes were

“material to issues at the heart of this case,” PA238 (RA182), and argued that the notes were so likely to be exculpatory that the prosecution, if it had obtained them, would have been under an obligation to “provide it as Brady to us,” PA258 at 33 (RA215 at 33).

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The Trial Court’s Decision to Quash the Subpoena As explained below, the trial court granted Tyco’s motion to quash on the ground that the court believed Defendants’ subpoena was unlikely to uncover director statements inconsistent with the directors’ trial testimony. Therefore, in the court’s view, the subpoena constituted a “fishing expedition.” The trial court devoted much of its six-page opinion to the question whether Tyco, by making selective disclosures of its work product, had waived its work product claims. Analytically, waiver was not the threshold question, nor even the question that logically followed it. Instead, as the New York Court of Appeals later explained, under New York law the threshold legal question was whether the subpoena met the Gissendanner “fishing expedition” test. Kozlowski, 11 N.Y.3d at 241-42. And, if the answer to that question had been yes (as described in more detail below, the trial court’s answer was no) the question that would then have logically required an answer is whether the materials were statutorily protected from disclosure as opinion work product. Ultimately, the court did decide that the subpoenaed materials were BSF’s opinion work product, making it necessary to determine whether Defendants were nevertheless entitled to the materials, either because, as Defendants argued, their need for the materials to defend a criminal accusation trumped Tyco’s interest in the confidentiality of its work product

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(whether qualified or absolute) – or whether Tyco had somehow waived work product protection (the subject on which the court’s opinion focused). In analyzing the opinion work product and related waiver questions, the court stated its impression that Defendants (or at least Defendant Swartz) did “not dispute” the facial applicability of the opinion work product privilege to the materials Defendants sought to obtain. PA191-92 (A211-12). This was wrong: New York’s high court later acknowledged that Defendants, in the trial court, had challenged Tyco’s assertion of the opinion work product privilege.

Indeed,

although the prosecution’s position on appeal was that Defendants had conceded the issue below and therefore not preserved it for appellate review (PA 342 (Prosecution Br. at 173)), New York’s highest court not only reached the merits of the issue (implicitly rejecting the prosecution’s lack of preservation argument) but also ruled for Defendants on those merits, holding the documents were “not absolutely privileged.” Kozlowski, 11 N.Y.3d at 245. In any event, the trial court’s analysis of the tertiary waiver question was to reject “subject matter” waiver as a basis for finding waiver, and accordingly, to conclude that Tyco was entitled to resist disclosure based on New York’s opinion work product doctrine. PA194 (A214).

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On the subject of the Gissendanner threshold (and ultimately, only truly consequential) issue12 – whether Defendants had articulated a sound basis for believing that their subpoena would uncover relevant and potentially exculpatory material and therefore passed the “fishing expedition” test – the trial court explicitly concluded that they had not; after characterizing Defendants’ proffered basis for issuing the subpoena, the court held explicitly that “disclosure on that basis would constitute the proverbial fishing expedition for impeachment material.” PA195-96 (A215-16) (emphasis added). The court elaborated on this finding further, stating that Defendants had failed to demonstrate a “likelihood” that the subpoenaed materials would contain a witness “statement to counsel inconsistent with his or her trial testimony.” PA196 (A216).13

12

As we argue below, among the issues addressed by the trial court, the Gissendanner question was the only question whose disposition logically mattered to its ruling. Because the trial court ruled that Defendants failed to meet the Gissendanner threshold, the trial court was required to conclude – under Gissendanner itself – that Defendants did not have a constitutional right to enforcement of the subpoena. 48 N.Y.2d at 547-49. Given the trial court’s ruling that Defendants had failed to meet the Gissendanner threshold and were therefore not entitled to subpoena enforcement, it could not have logically mattered whether the subpoenaed documents were also exempt from disclosure for other potentially independent reasons, such as the documents’ classification as work product or litigation materials, or whether Tyco had waived the protection ordinarily provided to such materials. 13 In light of the trial court’s explicit statement that Defendants had failed the Gissendanner “fishing expedition” test, the Court of Appeals’ later conclusion that the trial court had “implicitly” found the opposite – satisfaction of the Gissendanner test – was plainly wrong. The Court of Appeals relied on the notion that the trial court had purportedly “confined” its opinion to “questions concerning the applicability of the work product and trial preparation privileges” for the notion that the trial court found satisfaction of the Gissendanner test. Kozlowski, 11 N.Y.3d at 242. But as is clear from the face of the trial court’s opinion, that court did not 6495321.4

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The trial court’s opinion nevertheless briefly discussed C.P.L.R. § 3101(d)(2), the state civil discovery statute that governs requests for litigation materials made by one party to another and makes such materials available for discovery, subject to the conditions that a party seeking to obtain them show a “substantial need” for them and that it “is unable without undue hardship to obtain the substantial equivalent of the material by other means.” By not stating or even implying that it was holding Defendants to a requirement to conduct postindictment interviews of the Director-Witnesses (as Defendants argued in their papers, after the witnesses “changed their tune”), the court seemed to recognize that such interviews would not have been the equivalent of the BSF (preindictment) interviews. Instead, the court imposed a past-tense requirement – mandating that Defendants show they could not have interviewed the DirectorWitnesses at an “earlier time,” i.e., before the defendants were accused of stealing their bonuses. PA195 (A215). Thus, albeit as part of an advisory or alternative ground for its decision, the trial court saddled Defendants with the loss of access to evidence, for use in a criminal case, because they did not try, before the criminal case existed, to obtain what the court took to be the “substantial equivalent” of pretrial statements by prosecution witnesses. “confine” itself to the work product and trial preparation privileges, and instead, also explicitly concluded that Defendants’ subpoena was a “fishing expedition.” 6495321.4

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The Second Trial The prosecution again called the Director-Witnesses to testify that they had not approved the disputed bonuses. This time, Defendants were convicted. The Appellate Division Decision Defendants appealed to the Appellate Division, First Department, challenging, among other things: (a) the sufficiency of the evidence to sustain their convictions; and (b) the quashing of their subpoena as a deprivation of their “right to compulsory process and . . . to present a defense, as guaranteed by the United States Constitution.” PA280, n.47 (Swartz App. Div. Br. at 34, n.47).14 Specifically, Defendants explained that there was “every reason to believe that the statements . . . were at odds with the directors’ trial testimony.” PA286-87 (Swartz App. Div. Reply Br. at 12-13). The prosecution defended the quashing of the subpoena on two principal grounds. First, it contended that Defendants’ subpoena had been a “fishing expedition” and therefore failed to satisfy the Gissendanner threshold for enforcement. PA292-93 (Prosecution Appellate Division Brief at 261-62). Alternatively, it argued that the materials were protected from disclosure by the opinion work-product privilege. PA298 (Prosecution App. Div. Br. at 269). 14

In order to avoid duplication, Petitioner and his co-Defendant did not separately brief issues that were relevant to each of their appeals. Thus, although counsel for Swartz briefed the subpoena issue, Petitioner explicitly joined in “Swartz’s arguments about the trial court’s errors in: refusing to enforce the subpoena issued to the Boies firm.” PA 274 (Kozlowski App. Div. Br. at 179). 6495321.4

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The Appellate Division affirmed.

With respect to the quashing of the

subpoena, it said only that the trial court had not “improvidently exercise[d] its discretion . . . since the documents sought were not material and exculpatory.” Kozlowski, 47 A.D.3d at 120.

The court did not address the prosecution’s

alternative argument that the documents were protected from disclosure as opinion work product. The Appellate Division also rejected Defendants’ challenges to the sufficiency of the evidence. For example, the court characterized Defendants’ legal argument that they were contractually entitled to the sums they received as “a question of fact for the jury . . . .” Id. at 115. The Appeal to New York’s Highest Court Defendants sought and received rarely granted leave to appeal to the state’s highest court, the New York Court of Appeals.15 On appeal, Defendants again emphasized that the quashing of the subpoena violated their constitutional rights.

See PA318, PA325-26 (Swartz Court of

Appeals Brief at 35, 42-43); see also PA 331 (Prosecution Court of Appeals Brief at 159) (“Swartz claims that he ‘has a constitutional right to compel disclosure of

15

In 2008, the year Petitioner obtained leave from the Court of Appeals, the court granted leave in only 53 of 2,637 criminal cases, or 2%. N.Y. Court of Appeals, Annual Report of the Clerk of the Court 2008, available at http://www.nycourts.gov/ctapps/news/annrpt/AnnRpt2008.pdf, at 7.

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material evidence from a third party’”).16 Defendants focused on the Supreme Court’s decisions in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (holding that due process was violated by quashing a criminal defendant’s subpoena for confidential files of a state agency that investigates claims of child abuse), and Davis v. Alaska, 415 U.S. 308 (1974) (holding that Sixth Amendment right to present a defense outweighed countervailing privacy interest). See PA325-26 (Swartz Ct. App. Br. at 42-43). Defendants also challenged the legal sufficiency of the evidence. In response, the prosecution argued that Defendants’ subpoena sought only “general credibility” evidence and therefore did not satisfy Gissendanner. PA33541 (Prosecution Ct. App. Br. at 166-72). The prosecution argued alternatively that even if the subpoena did satisfy the Gissendanner standard, it was nevertheless unenforceable because the materials sought were pure opinion work product and therefore protected from disclosure. PA341-48 (Prosecution Ct. App. Br. at 17279. The prosecution did not ask the court to sustain the quashing of the subpoena if it were to conclude that the materials were only qualifiedly protected litigation materials. In other words, the prosecution did not dispute that Defendants should 16

Although the subpoena issue was discussed more expansively in the brief of Defendant Swartz, Mr. Kozlowski’s brief articulated that he joined in all of Swartz’s arguments, “including but not limited to . . . the trial court’s error in refusing to enforce the subpoena issued to the Boies firm.” PA309 (Kozlowski Court of Appeals Brief at 81).

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have received the materials if the materials were not opinion work product. Thus, the prosecution did not suggest, at any point in the appellate process, that Defendants failed to meet the statutory conditions for disclosure of materials prepared in anticipation of litigation, that Tyco had a right to qualified protection for its litigation materials that could outweigh Defendants’ need for potentially exculpatory impeachment materials, or that Defendants should themselves have interviewed the directors (either before or after the indictment was issued) as a condition to the enforceability of the subpoena. The New York Court of Appeals’ Decision The Court of Appeals’ opinion started with a discussion of the nature of the evidence and included the statement that various “procedures were not employed” by Defendants in connection with their receipt of the bonuses. Kozlowski, 11 N.Y.3d at 231. However, the opinion did not explicitly state its rejection of Petitioner’s legal sufficiency claim, much less a specific reason for rejecting that claim. With respect to the subpoena, the court decided the principal disputed issues in Defendants’ favor. First, disagreeing with the Appellate Division, it found that Defendants had satisfied the Gissendanner standard by proffering facts that supported an inference that it was “reasonably likely” the subpoenaed notes

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contained “material that could contradict the statements of key witnesses for the People.” Kozlowski, 11 N.Y.3d at 243. The court explained that the subpoena sought “specifically identified statements made by the director-witnesses regarding key issues in the case.” Id. at 241-42. The opinion went on to explain why the subpoenaed interview notes had genuine potential to undercut the prosecution: Defendants pointed to undisputed facts, arguing that after the directors were made aware of at least some of the defendants’ questionable activities through the Boies Schiller investigation, they continued to permit Swartz to exercise substantial authority as the CFO of Tyco until September 11, 2002 – the day before he was indicted – and voted to pay him $50 million in severance just one day after the last of the relevant director interviews. Id. at 243. Second, the court held that the interview notes were not protected by the absolute privilege for opinion work product, but constituted only qualifiedly protected materials prepared in anticipation of litigation, discoverable upon a showing of substantial need and inability to obtain their substantial equivalent. Id. at 244-45. Then, having explicitly knocked the entire foundation out from under the trial court’s and Appellate Division’s analyses of the subpoena issue, the court then went in a direction that no party (or amicus) had urged. Based upon a line of reasoning that the court apparently came up with on its own, it affirmed the 6495321.4

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quashing of the subpoena. Specifically, the court said that the materials sought were prepared by BSF in anticipation of litigation and that Defendants were therefore statutorily required to show an inability to obtain the “substantial equivalent” of those materials, prior to subpoena enforcement. The court went on to hold that Defendants’ failure to seek interviews with the Director-Witnesses was fatal, on the theory that such interviews could have yielded the substantial equivalent of the directors’ statements to Tyco. Id. at 245. In this fashion, the court latched onto an aspect of the trial court’s opinion which, as described above, had been inconsequential to its decision to quash,17 and elevated that advisory or alternative aspect of the decision into the high court’s only basis for upholding the Defendant’s loss of access to concededly important impeachment material. Id. at 245-46. Thus, the court affirmed the quashing of the subpoena based on an argument that had not been proffered by the prosecution to any court. In a footnote, the court said it would not address Defendants’ constitutional subpoena claim, asserting that “defendants did not raise a constitutional argument in support of their subpoena below. Id. at 242, n.11. In the same sentence of the text that contained the footnote, the court cited the Supreme Court’s opinions in 17

As noted above, the trial court’s decision to quash was: (1) required by its conclusion that the subpoena was a fishing expedition (a holding rejected by the Court of Appeals); and (2) supported by its conclusion that the materials were opinion work product (a finding rejected by the Court of Appeals).

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Ritchie, 480 U.S. 39, and United States v. Nixon, 418 U.S. 683 (1974), as binding authority for the proposition that it must consider Defendants’ “right to a fair trial.” Kozlowski, 11 N.Y.3d at 242. The content and theme of the specific page which the court cited from the Ritchie opinion is explicitly constitutional. 480 U.S. at 56 (holding that criminal defendants have a Sixth Amendment right to “put before a jury evidence that might influence the determination of guilt” and concludes that a defendant’s right to subpoena confidential records is “properly . . . considered by reference to due process”). The theme of the specifically cited page of Nixon is also clearly constitutional. 418 U.S. at 711 (observing that “[t]he right to the production of all evidence at a criminal trial similarly has constitutional dimensions” and that the “Sixth Amendment explicitly confers upon every defendant in a criminal trial the right . . . to have compulsory process”). In addressing Defendant’s “right to a fair trial,” the New York court went on to weigh the “competing considerations” that the Ritchie decision mandates. Kozlowski, 11 N.Y.3d at 242-43.18

18

Indeed, there was no reason for the Court of Appeals to cite Supreme Court authority other than to address constitutional issues. Similarly, Gissendanner, emphasized by the Court of Appeals as the leading New York case on the standard for subpoena enforcement, is itself based on federal constitutional principles. 48 N.Y.2d at 548. Gissendanner holds that although enforcement of subpoenas for “general credibility” evidence may be left to the sound discretion of trial courts, requests for “access . . . to otherwise confidential data relevant and material to the determination of guilt or innocence” “must” be afforded. Id. In fact, the Gissendanner opinion cites Davis, 415 U.S. at 316, for the principle that evidence material to witness credibility, e.g., 6495321.4

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After explicitly recognizing the relevance and importance of the materials, to the defense, the court held that Defendants were not entitled to production because Defendants had themselves not attempted to interview the Director-Witnesses at an “earlier time.” Id. at 245-46. Although the Court of Appeals never explicitly defined the phrase, it had to refer to the period before September 12, 2002 – the date on which both Defendants were criminally charged with stealing from the company.

Indeed, given that the directors testified in the grand jury that

Defendants’ bonuses were unauthorized, by the date the indictment was handed up the directors had already “changed their tune” and adopted the prosecution’s view of the propriety of the bonuses. Thus, to the extent there can ever have been a time when director statements “substantially equivalent” to the pre-indictment statements made to BSF might have been obtainable, this could only have been before the indictment was returned.19 In other words, the New York Court of Appeals held that Defendants would be deprived of compulsory process to obtain

“biases, prejudices or ulterior motives,” falls into the category of evidence that must be disclosed, even when “otherwise confidential.” Id. 19 Furthermore, as we argue below, the notion that a witness’ answers to one party’s questions are the substantial equivalent of the same witness’ answers to an adverse party’s questions is inconsistent with the premise of our judicial system that witnesses say different, and potentially inconsistent things to different parties at different times. Indeed, this is why our system of justice relies on cross-examination to unearth the truth and imposes obligations such as those mandated by the Jencks Act, 18 U.S.C. § 3500 (1957). 6495321.4

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evidence having genuine potential to undercut the central allegation against them, because they did not seek to investigate that allegation at a time before it existed. The Motion to Reargue By motion dated November 12, 2008, Defendants moved to reargue the Court of Appeals’ Order. Petitioner explicitly incorporated the motion papers submitted by co-defendant Swartz.

Among other grounds for reargument,

Defendants pointed out that the court had erected a barrier against Defendants’ access to important evidence, based on Defendants’ purported failure to seek their own discovery to defend a criminal case, “even before the time [they became] a party [to that case].”

PA355 (Memorandum of Law in Support of Mark H.

Swartz’s Motion for Reargument at 5).

Defendants argued that “before the

indictment was handed down, [they] had no reason to interview the directors.” PA352 (Id. at 2). In opposition, the prosecution appeared to concede that the Court of Appeals’ use of the phrase “earlier time” did indeed mean that the court was imposing an obligation on Defendants to seek equivalent statements, for use in the criminal case, before the criminal case existed. The prosecution defended such a requirement (for the first time), arguing that Defendants should have tried to conduct pre-indictment interviews.

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Thus, the prosecution labeled as “without

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merit” Defendants’ argument that they had “no ‘reason’ to interview the directors and no idea what ‘questions’ to explore with them” before they were indicted. PA360-61 at ¶8 (Affirmation in Opposition to Motion for Reargument at ¶8). On January 13, 2009, the court denied the motion. Kozlowski, 11 N.Y.3d 904. The Petition for Certiorari Defendants petitioned the United States Supreme Court for certiorari. On June 8, 2009, the Court denied the petition. Kozlowski, 129 S. Ct. 2775.

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POINT I MR. KOZLOWSKI’S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WAS VIOLATED WHEN THE TRIAL COURT QUASHED HIS SUBPOENA FOR THE EARLIEST RECORDED STATEMENTS OF PROSECUTION WITNESSES. After being employed for twenty-seven years by Tyco (ten of those years as the company’s Chief Executive Officer), Mr. Kozlowski was convicted of stealing money from his employer. The conviction was based largely on testimony from the Director-Witnesses that they had not approved certain payments, as bonuses or otherwise, to Mr. Kozlowski. The credibility of the directors’ denials of bonus approval was thus critical to the determination of guilt or innocence. The New York Court of Appeals held that Mr. Kozlowski was not entitled to enforcement of his subpoena for the Director-Witnesses’ first recorded statements even though, as the court also held, the statements were plainly material to Petitioner’s defense. Id. at 242-43. Given the court’s explicit finding that the subpoenaed evidence was material (because it would have enabled Defendants to have effectively challenged the credibility of the key Director-Witnesses’ testimony on the key subject in dispute) and potentially exculpatory (a conclusion that follows from Tyco’s continued willingness to repose substantial authority in Swartz as Tyco’s CFO after the Directors spoke to BSF about the Defendants’ bonus compensation), the court’s ruling that Defendants were nevertheless not 6495321.4

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entitled to this important evidence can survive constitutional scrutiny only if, at absolute minimum, it rests on a rational, non-arbitrary ground. But New York’s highest court ratified the quashing of the subpoena on grounds that are undeniably arbitrary – holding that Mr. Kozlowski had waived his right to obtain what the court found to be consequential impeachment material, merely because Mr. Kozlowski did not seek the “substantial equivalent” of that impeachment material (assuming, incorrectly, that there can be a “substantial equivalent” of a prior inconsistent statement) at a time before the larceny charge that he sought the subpoenaed documents to defend against had been brought. As the United States Supreme Court has repeatedly held, there are two elements of a right to present a defense claim. First, the evidence that is excluded (or which the Defendant is deprived of the ability to access) must be “material.” And second, the reasons for the exclusion or denial of right to access may not be “‘arbitrary or disproportionate’ to the purpose that the rule is designed to serve.” Jimenez v. Walker, 458 F.3d 130, 146-47 (2d Cir. 2006) (summarizing several holdings of the United States Supreme Court, including Taylor v. Illinois, 484 U.S. 400 (1988); Rock v. Arkansas, 483 U.S. 44 (1987); Crane v. Kentucky, 476 U.S. 683 (1986); and Chambers v. Mississippi, 410 U.S. 284 (1973)).

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Here, there can be no serious question that Petitioner has satisfied both elements. With respect to the first element, the New York Court of Appeals found, as a factual matter, that the evidence sought was likely to have been material to the defense. With respect to the second element, a court’s imposition of a requirement for access to important evidence, not stated in the pertinent state statute, whose effect is also to require a criminal defendant to investigate a criminal case before it exists, is patently arbitrary. Thus, by resting the denial of a criminal defendant’s right to obtain material evidence on such an irrational and arbitrary ground, the New York Court of Appeals unreasonably applied clearly established federal law, as determined by the United States Supreme Court, which both: (a) protects a criminal defendant’s constitutional right to present a defense; and (b) treats arbitrary deprivations of procedural rights as unconstitutional violations of due process. A.

The Subpoena Sought Specifically Identified Evidence That Was Likely to Be of Significant Impeachment Value to the Defense. At the outset, it deserves emphasis that the subpoena was not the proverbial

“fishing expedition” and, instead, was backed up by thoroughly explained, logical reasons why the specifically identified statements of the Director-Witnesses were likely to contain inconsistencies with their testimony regarding bonus payments. The genuine and significant potential for the subpoenaed statements to have this 6495321.4

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exculpatory value is, on habeas review, beyond dispute, given the twin factual findings by New York’s highest court that the statements were “specifically identified statements made by the director witnesses regarding key issues in the case” and that these statements were “reasonably likely” to contain “material that could contradict the statements of key witnesses for the People” (emphasis added) Kozlowski, 11 N.Y.3d at 242. These findings of fact, favorable to Petitioner, are entitled to the presumption of correctness on habeas review. See Burden v. Zant, 498 U.S. 433, 436 (1991) (according presumption of correctness to state-court finding of fact, favorable to the petitioner, that prosecution witness testified against the petitioner under a grant of immunity); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004) (concluding that AEDPA mandated deference to state-court fact finding, favorable to the petitioner, that state would have been unable “to demonstrate good cause” for the delay in indicting the petitioner); Pinckney v. Keane, 920 F.2d 1090, 1092 n.1 (2d Cir. 1990) (endorsing district court’s deference to state trial court’s findings of fact, favorable to the petitioner). Implicit in the materiality element of a right to present a defense claim is a determination of prejudice. If the withheld evidence “creates a reasonable doubt,” the materiality element is satisfied. United States v. Agurs, 427 U.S. 97, 112 (1976). In other words, if the withheld evidence, considered in the context of the 6495321.4

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record, “could have raised a reasonable doubt,” the evidence is constitutionally material.

Justice v. Hoke, 90 F.3d 43, 50 (2d Cir. 1996) (emphasis added)

(granting habeas writ where the excluded evidence “could have raised a reasonable doubt” by undermining the credibility of important prosecution witness testimony). See also Ritchie, 480 U.S. at 57 (reaffirming definition of materiality as a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”); Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000).

Given the finding of New York’s high court that the

undisclosed evidence was “reasonably likely” to “contradict the [trial] statements of key [prosecution] witnesses,” Kozlowski, 11 N.Y.3d at 242, together with that court’s well reasoned explanation for that finding, there can be no serious question that the materiality element of Mr. Kozlowski’s claim is satisfied.

B.

In Light of the New York Court of Appeals’ Finding That the Materials Sought Were Potentially Exculpatory (and Therefore of Constitutional Dimension), Its Decision to Sustain the Quashing of the Subpoena Based on an Expansive Construction of a Civil Procedure Discovery Statute Violated Mr. Kozlowski’s Constitutional Rights. Given the finding of New York’s highest court that the statements sought by

Petitioner had significant exculpatory potential, and in light of the court’s holding that the statements were not, as a matter of New York law, protected from

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disclosure as opinion work product, there is simply no question, under both New York and federal law, that, at a minimum, court inspection of the statements was mandatory. See Gissendanner, 48 N.Y.2d at 548–49 (stating that “access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence” and citing Davis, 415 U.S. at 316, for principle that evidence bearing negatively on prosecution witness credibility falls into the category of evidence that must be disclosed) (emphasis added); see also Ritchie, 480 U.S. at 57-58 (holding that where criminal defendant issued subpoena for qualifiedly confidential “verbatim statements” of prosecution witnesses, due process required court inspection of the statements to determine if they contained “information that probably would have changed the outcome of his trial.”); Davis, 415 U.S. at 318 (holding that where a petitioner was “denied the right of effective crossexamination, error would be ‘constitutional error of the first magnitude’” (quoting Brookhart v. Janis, 384 U.S. 1, 3 (1968)). Rather than heed these binding principles, the New York Court of Appeals immersed itself in a sea of confusion when it imagined it had unearthed a basis for affirming the quashing of the subpoena that was never argued by the prosecution. As described above, the court looked to C.P.L.R. § 3101(d)(2), a New York civil discovery statute that governs access by one party to litigation materials prepared 6495321.4

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by another party to that same litigation. As demonstrated below, the New York Court of Appeals’ holding that Petitioner failed to satisfy the requirements of 3101(d)(2) was incorrect, as he plainly satisfied all of its conditions for access to litigation materials. But more fundamentally, the statute did not even apply to Petitioner. N.Y. C.P.L.R. § 3101(d)(2), by its express terms, does not apply to criminal cases generally nor to Petitioner specifically in the case at bar. Article 31 of the C.P.L.R. is New York’s civil discovery statute.20 It governs disclosure between and amongst litigants in civil cases. The statute refers to the actual litigants upon whom the statute imposes disclosure obligations as “parties.” Others, from whom disclosure may also be sought, are referred to as “persons.” See, e.g., C.P.L.R. § 3101(a)(1)(2)(3) and (4). C.P.L.R. 3101(d), the sub-section that the New York Court of Appeals found applicable to Petitioner’s subpoena to BSF, governs the disclosure, or non-disclosure, of materials that the parties to a litigation create in the course of litigating against each other. It has no application to the materials, documents or reports sought from non-parties to the litigation. See Milone v. General Motors Corp., 84 A.D.2d 921 (4th Dept. 1981) [(“Except where the pending litigation arose from the prior case . . . material prepared for related 20

New York’s rules for discovery in criminal cases are set forth in a completely different statute, Article 240 of the Criminal Procedure Law. 6495321.4

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litigation is treated as if it is not prepared for the case at bar” (3A Weinstein-KornMiller, N.Y.Civ.Prac., ¶ 3101.51; emphasis added)]; see also Fireman’s Ins. Co. of Newark, N.J. v. Gray, 41 A.D.2d 863 (3d Dept. 1973) [ordering disclosure of litigation material because “[a]n investigation conducted to defend an insured against a possible legal action is not material prepared for legal action against the insurer himself” (Collins v. Jamestown Mut. Ins. Co., 32 A.D.2d 725)]. Neither BSF nor Tyco were parties, as that word is used in § 3101, to People v. Kozlowski and Swartz, the case in which the subpoena to BSF was issued. The qualified protections afforded by § 3101(d)(2) to a “party” for its litigation preparation material were and are therefore wholly inapplicable to Tyco and BSF. Petitioner was not seeking BSF interview notes for use in a litigation against Tyco. He sought the notes to defend himself against criminal charges in a case being prosecuted by the District Attorney. If there is any possible misunderstanding that C.P.L.R. § 3101(d)(2) had no applicability to Petitioner’s subpoena to BSF, a reading of the last sentence of the section should be dispositive. It provides: “In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis added.) The litigation referred to is without 6495321.4

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question a reference to the litigation between the parties in which the disclosure is being made. Petitioner’s subpoena was not issued in connection with litigation between Petitioner and Tyco and did not seek disclosure from the only other party, the state, or its counsel, the District Attorney. In sum, as argued by Petitioner in the New York Court of Appeals, see PA322, n.18 (Swartz Ct. App. Br. at 39, n. 18), C.P.L.R. § 3101(d)(2) does not provide a non-party, like Tyco, with any privilege against disclosure of its litigation material. Yet, without explanation, and in the face of case law directly on point, the New York Court of Appeals saddled Petitioner with the obligation to comply with a statute that, by its plain and unambiguous terms, is inapplicable. In doing so, it prevented Petitioner from obtaining the Director-Witness interview notes and stripped him of his constitutionally protected right to effectively confront those witnesses. Moreover, as explained below, even if C.P.L.R. § 3101(d)(2) could be understood to apply here, there cannot have been a legitimate dispute that Petitioner easily satisfied all of the requirements set forth in that statute for access to litigation materials. The criterion that the Court of Appeals said Petitioner failed to satisfy is imaginary: it is not set forth anywhere in the statute. For that reason alone, the criterion is therefore plainly arbitrary. Moreover, as we also explain 6495321.4

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below, the criterion is profoundly arbitrary for a second, more fundamental reason – it required Petitioner to defend the criminal case before it existed. But before coming back to the requirements of C.P.L.R. § 3101(d)(2) – real and imagined – a predicate question that must be considered (and which the New York courts ultimately side-stepped) is whether the requirements imposed by New York’s civil discovery statute can be applied mechanistically to a criminal defendant who seeks evidence that may help him to establish his innocence. As explained below, the Supreme Court has repeatedly held that a criminal defendant’s need for evidence is a profound constitutional value and therefore, when other, non-constitutional interests (e.g., procedural or evidentiary rules) clash with this value, the non-constitutional interests must not be construed expansively. Here, the New York court violated this principle when, confronted by what the court recognized to be a criminal defendants’ genuine need for important impeachment material, it nevertheless construed the countervailing nonconstitutional interest – New York’s civil statute providing qualified protection to litigation materials – expansively. As the Supreme Court recently said when affirming its seminal holding in Nixon, “privilege claims that shield information from . . . a criminal trial are not to be ‘expansively construed’ for they are in derogation of the search for truth.” 6495321.4

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Cheney v. United States District Court, 542 U.S. 367, 384 (2004) (emphasis added). The Court went on to explain: The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same ‘constitutional dimensions.’ Id. Indeed, as the Supreme Court originally explained the concept in Nixon, “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal case is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” Nixon, 418 U.S. at 713; see also United States v. Leon, 468 U.S. 897, 900-01 (1984) (recognizing the importance of “procedures under which criminal defendants are ‘acquitted or convicted on the basis of all the evidence which exposes the truth’” (quoting Alderman v. United States, 394 U.S. 165, 175 (1969)); United States v. Libby, 432 F. Supp. 2d 26, 47 (D.D.C. 2006) (explaining that “a criminal defendant’s right to the production and presentation of evidence during a criminal trial” is “rooted in history and the Constitution”). Thus, in Nixon, the Court held that a “demonstrated, specific need for evidence in a pending criminal case” required enforcement of a subpoena issued to the President of the United States for recordings of conversations between the 6495321.4

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President and his advisers that were protected by executive privilege. 418 U.S. at 713. As the Court explained further, “privilege claims that shield information from . . . a criminal trial are not to be expansively construed, for they are in derogation of the search for truth.” Id. at 710. And thus, “allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court.” Id. at 712. The New York Court of Appeals merely paid lip service to these principles (e.g., citing Ritchie and Nixon for its obligation to “give due regard to the accused’s right to a fair trial” and stating its intention to “strike an appropriate balance between the rights and interests of . . . corporations . . . and the accused”). Kozlowski, 11 N.Y.3d at 242, 243. But ultimately, the Court of Appeals explained its ruling as deriving from its perception that Petitioner failed to fulfill the requirements imposed by the civil discovery statute, as if Petitioner’s status as a criminal defendant were irrelevant to the application of the civil discovery statute in a criminal case. Id. at 245-46. By ultimately making its determination of the subpoena’s enforceability based only on Petitioner’s purported failure to comply with a civil discovery statute, and thereby failing to truly and adequately weigh Petitioner’s status as a criminal defendant in its calculus, the court analyzed 6495321.4

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Petitioner’s claim without adequately weighting the constitutional significance of the materials he sought. In sum, Petitioner sought to obtain materials that would have enabled him to challenge the credibility of key prosecution testimony and therefore, New York and federal law required that his subpoena be analyzed as a request to obtain materials of constitutional significance.

The New York court, by ruling on

Petitioner’s request as if he were merely a civil litigant, unreasonably applied Supreme Court precedent that, when properly understood, required New York’s courts to treat the subpoenaed materials as constitutionally significant and prohibited the courts’ expansive construction, against a criminal defendant, of Tyco’s statutory privilege claim. C.

Under the Plain Terms of New York’s Statute Governing Access to Litigation Materials, Petitioner Was Entitled to Obtain the Subpoenaed Documents. As argued above, even if New York’s courts believed that 3101(d)(2) was

applicable and that Defendants had not complied perfectly with every requirement set forth in that statute, the courts should not have denied disclosure on that basis alone and, instead, should have applied more liberal disclosure standards, given that Defendants needed the evidence to challenge the testimony offered to prove a criminal accusation.

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When faced with the choice of whether to treat either

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Defendant’s constitutional right or Tyco’s statutory interest deferentially, the court should have chosen Defendants’ right. But even without considering Petitioner’s status as a criminal defendant, it is undeniable that Petitioner fulfilled all of the requirements imposed by the statute for access to the materials, even if the statute were applicable here. And while the technical correctness of New York courts’ rulings on New York law is not directly before this Court, Mr. Kozlowski’s entitlement to enforcement of his subpoena under state law is nevertheless pertinent to an understanding of Mr. Kozlowski’s constitutional claim.

As

demonstrated below, it sheds light on the extent to which the New York high court’s stated reason for depriving Mr. Kozlowski of important evidence was utterly arbitrary. 1.

Petitioner Met the “Substantial Need” Test, as the Court of Appeals Implicitly Found.

As described above, under New York’s civil discovery statute, C.P.L.R. § 3101(d)(2), materials “prepared in anticipation of litigation” are discoverable “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means” (emphasis added).

The New York Court of Appeals did not explicitly discuss whether

Petitioner met the statute’s first requirement of demonstrating a “substantial need” 6495321.4

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for the materials. However, by holding that Petitioner satisfied the Gissendanner specificity and materiality standards (e.g., that the specific statements were “reasonably likely” to contain “material that could contradict the statements of key [prosecution] witnesses”), the court implicitly found that he had demonstrated a substantial need for the subpoenaed materials. Therefore, the only remaining question – as to the facial application of 3101(d)(2) – was whether Petitioner, at the time he subpoenaed the materials from Tyco, had shown that he was then “unable” to obtain the “substantial equivalent” of the materials he sought. At no point prior to the time that New York’s highest court issued its decision did the prosecution ever argue that Petitioner had failed this requirement. Indeed, as demonstrated below, Petitioner easily satisfied it. 2.

Petitioner Demonstrated His Inability to Obtain the “Substantial Equivalent” of the Subpoenaed Statements.

The requirements imposed by the New York statute for obtaining litigation materials have traditionally been understood to set an easily met threshold for disclosure. The law favors “liberal” disclosure upon a showing that the requesting party “has need of relevant materials and can’t duplicate them.” Connors, Practice Commentaries, 7B McKinney’s C.P.L.R., C:3101:29, at 78 (2005 ed.); see also Spectrum Sys. Int’l Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991) (holding that “the burden of establishing any right to protection is on the party asserting it; 6495321.4

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the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity”).

Given New York’s

traditionally liberal approach to the disclosure of litigation materials, disclosure has unsurprisingly been ordered in innumerable circumstances. See, e.g., Drizin v. Sprint Corp., 3 A.D.3d 388 (1st Dept. 2004) (ordering disclosure of records relating to telephone scam belonging to investigator hired by plaintiff’s counsel); Yasnogordsky v. City of New York, 281 A.D.2d 541, 541 (2d Dept. 2001) (holding that “where the statement of a nonparty-witness is inconsistent in a material respect with his or her testimony at a deposition, the statement should be disclosed pursuant to . . . CPLR 3101(d)(2)”); Goldberg v. Hirschberg, 10 Misc. 3d 292, 299 (N.Y. County Sup. Ct. 2005) (finding that “defendants clearly have a ‘substantial need’ for the material [attorneys’ notes of proffer sessions]”). In any event, there were at least three specific, independent reasons why Petitioner must be considered to have made the showing of his inability to obtain the equivalent of the documents he subpoenaed. a.

Prior Inconsistent Statements Are Unique, Not Replicable.

Petitioner was unable to obtain a “substantial equivalent” of the documents because they were sought as prior inconsistent statements, see Kozlowski, 11 N.Y.3d at 243 (describing the documents sought as “material that could contradict

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the statements of key witnesses for the People”), a category of evidence that, by definition, has no equivalent. As Supreme Court Justice Byron White explained more than thirty years ago: In the main, where a party seeks to discover a statement made to an opposing party in order to prepare for trial, he can obtain the ‘substantial equivalent’ by other means, Fed. Rule Civ. Proc. 26(b)(3), i.e., by interviewing the witness himself. A prior inconsistent statement in the possession of his adversary, however, when sought for evidentiary purposes – i.e., to impeach the witness after he testifies – is for that purpose unique. United States v. Nobles, 422 U.S. 225, 248 (1975) (White, J., concurring); Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1969) (rejecting the “rigid rule” that a party seeking to subpoena recorded statements of witnesses from his adversary “must always show that he has been unable to obtain statements of his own” from the witnesses whose statements he seeks to subpoena). Indeed, even if Petitioner had arranged to have his own investigators interview the witnesses whose prior statements were subpoenaed, and even if the statements made by the witnesses to Petitioner’s investigators were remarkably similar to the statements they made months earlier to BSF, the two sets of statements could nevertheless not be considered legal equivalents. See, e.g., People v. Young, 79 N.Y.2d 365, 370 (1992) (holding that “[s]tatements are not the ‘duplicative equivalent’ of previously produced statements . . . just because they are 6495321.4

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‘harmonious’ or ‘consistent’ with them”); see also Flores v. Demskie, 215 F.3d 293, 302 (2d Cir. 2000) (holding that under New York law, two statements are not ‘duplicative equivalents’ of one another if there are any “variations” between them). To deny a criminal defendant access to an important prosecution witness’s prior inconsistent statement, based only on the theory that the criminal defendant’s own interview of the prosecution witness (had he conducted such an interview) would have been the “substantial equivalent” of the already recorded prior inconsistent statement, thus flies in the face of logic and is contrary to precedent. Our judicial system allows for no assumption that a statement given by a witness to one party (e.g., Tyco) would be the equivalent of the witnesses’ statement to another party with a different interest (e.g., Kozlowski, who was adverse to Tyco in civil litigation).

In fact, our legal system assumes precisely the opposite:

witnesses tell different stories to different parties at different times. This is why cross-examination is fundamental to our system of justice and why prior witness statements in the possession of the prosecution must be turned over to the defense, an obligation that is not conditioned on a showing, by the defense, of an inability to conduct their own interview of the witness. N.Y. C.P.L.R. § 240.44 (codifying holding of People v. Rosario, 9 N.Y.2d 286 (1961)). 6495321.4

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In this respect, federal law is identical to New York law. See Jencks v. United States, 353 U.S. 657, 667 (1957) (holding that to deny a criminal defendant access to prior statements that might be used to impeach a witness is to “deny the accused evidence relevant and material to his defense.”). And, although Jencks was not decided on explicitly constitutional grounds, its holding plainly has constitutional underpinnings. See Palermo v. United States, 360 U.S. 343, 362-63 (1959) (Brennan, J., concurring) (“[I]t would be idle to say that the commands of the Constitution were not close to the surface of the [Jencks] decision.”). In sum, prior inconsistent statements of witnesses, particularly when they are sought for use in a criminal case, are unique and therefore not replicable, under both New York and federal law. b.

The Prior Inconsistent Statements Sought by Defendants Were Unique for a Second, Case-Specific Reason: They Were Recorded During a “Window in Time” That Had Closed by the Time Defendants Were Charged.

The conclusion that the statements sought by Petitioner were not replicable (and therefore, that the statements should not have been withheld on the ground that Petitioner could conceivably have duplicated them) is strengthened by the fact that the statements were made during a unique window in time, before the witnesses “changed their tune.”

Kozlowski, 11 N.Y.3d at 243.

That is, the

statements were at a time when the directors, by continuing to employ Swartz in a 6495321.4

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high-level, sensitive position, were demonstrating that they believed the bonuses were not stolen. But by the time of the indictment (when the directors testified for the prosecution in the grand jury) the directors had already “changed their tune” about the propriety of the bonuses. That the passage of time can render evidence unique (and therefore not replicable) is a principle that New York’s courts have repeatedly endorsed. For example, in Dimechel v. S. Buffalo Railway Co., 80 N.Y.2d 184 (1992), the Court of Appeals held that a defendant in possession of surveillance videotapes of the plaintiff could not resist a subpoena for those tapes on the ground that the plaintiff would have been able to obtain their substantial equivalent by earlier making its own visual recordings of itself. As the court explained, the subpoenaed tape was “unique because it memorialize[d] a particular set of conditions that can likely never be replicated.” Id.; see also Kaplan v. Einy, 209 A.D.2d 248 (1st Dept. 1994) (finding that photographic and videographic evidence subject to 3101(d) is discoverable where “they can no longer be duplicated because of a change in the conditions”); Careccia v. Enstrom, 174 A.D.2d 48, 50 (3d Dept. 1992) (ordering disclosure of videotape because “condition has changed so much that [the party] can no longer produce a videotape that would be a substantial equivalent”); Kane v. Her-Pet Refrigeration Inc., 181 A.D.2d 257, 266 (2d Dept. 1992) (in ordering 6495321.4

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disclosure of films, explaining that “the conditions that existed at the time the films were made are almost never the same”). Like videotapes and photographs, BSF’s interviews with the Tyco directors recorded a unique moment in time that was not replicable following Mr. Swartz’s and Mr. Kozlowski’s indictments.

See

Kozlowski, 11 N.Y.3d at 234-35, 243. Because of the passage of time, even if prior inconsistent statements could ever be correctly characterized as replicable, the particular statements sought here emphatically were not. c.

By Finding Only a Past-tense Failure to Obtain the Substantial Equivalent of the Subpoenaed Statements, New York’s Courts Implicitly Found That Defendants Met the Present-Tense Temporal Requirement of the Statute.

The conclusion that Petitioner satisfied the requirements of C.P.L.R. § 3101(d)(2) is independently supported by application of the statute’s temporal feature. Specifically, the statute requires that a party seeking litigation materials show a present inability (“is unable”) to obtain their substantial equivalent. Notably, New York’ courts did not find that Petitioner had failed this test. Instead, the courts seemed to assume, correctly, that interviews conducted by Defendants in the post-indictment present could not have been the substantial equivalent of Tyco’s past interviews.

As New York’s highest court recognized, interviews

conducted by Defendants in the post-indictment present would have taken place under very different circumstances than those conducted by Tyco in the pre6495321.4

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indictment past, before the Directors “changed their tune.” See Kozlowski, 11 N.Y.3d at 243. However, New York’s courts did not stop there, and instead, imposed an obligation on Petitioner, not mentioned in the statute itself, to show that he could not have obtained what it took to be the substantial equivalent of the subpoenaed statements (his own witness interviews) at an “earlier time.” In mandating that Petitioner satisfy an “earlier time” test, rather than the present-tense “is unable” requirement specified in the statute, the Court of Appeals was not only unfaithful to the words of the statute, but also to New York’s legal authority which had previously interpreted the statute as imposing only a presenttense requirement. See, e.g., Lamitie v. Emerson Electric Co., 208 A.D.2d 1081, 1083 (3d Dept. 1994) (enforcing defendant’s subpoena for litigation materials, holding defendant satisfied the statutory temporal requirement when he showed that “by the time defendants and the third-party defendants received notice of the actions against them the opportunity no longer existed” to obtain the subpoenaed materials); Babcock v. Jackson, 40 Misc. 2d 757, 762 (Sup. Ct. Monroe County 1963) (finding, under previous version of 3101(c), that “any writing or anything created by or for a party or his agent in preparation for litigation” would be obtainable where “the material therein contained may no longer be duplicated because of a change in conditions”). 6495321.4

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In sum, the New York statute required only a showing of a present inability to obtain the statements’ substantial equivalent, prior inconsistent witness statements are never replicable, and the particular witness statements sought here were not replicable for the additional reason that they were recorded during a unique window in time. As such, Petitioner unquestionably made the showing required by the statute. The New York Court of Appeals brushed aside the plain language and structure of C.P.L.R. § 3101(d)(2) and concluded, for the first time, that the statute applies to subpoenas issued to non-parties and that it contains a silent “earlier time” test. Although that court is the ultimate arbiter of New York state law, it was not entitled to allow its novel and expansive application of the civil discovery statute to override a criminal defendants’ constitutional right to present his defense. But that is precisely what the court did. Indeed, it is not a defense to the constitutional violation to say that rules regulating access to litigation materials are set forth in a state statute. As the Second Circuit has explained: The fact that federal habeas corpus relief does not lie for errors of state law does not mean, however, that errors under state law cannot result in cognizable violations of a constitutional right to due process. What due process requires will often depend on what state law is. States are free to define the elements of, and defenses to, 6495321.4

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crimes. Once states have promulgated laws to define criminal conduct, however, federal due process protects a defendant from conviction unless he is shown in a fair proceeding to have violated those laws. Davis v. Strack, 270 F.3d 111, 123 (2001). As discussed more thoroughly below, the New York Court of Appeals’ determination that Petitioner failed to satisfy the requirements set forth in C.P.L.R. § 3101(d)(2) for access to litigation materials, was not merely incorrect, but arbitrary. The determination rested on requirements not present in the statute, and moreover, on a requirement that imposed upon Petitioner an obligation to investigate a crime not yet charged.

As a result, the court’s ruling was an

unreasonable application of clearly established Supreme Court precedent. D.

The Trial Court Did Not Have Discretion to Quash the Subpoena. As described above, the trial court’s quashing of the subpoena followed

from its finding that the subpoena rested on nothing more than a “fishing expedition.”

Also, the trial court expressed its view that the materials were

protected as opinion work product – something the trial court incorrectly assumed Defendants had conceded. But the New York Court of Appeals concluded, with respect to each of these issues, that the trial court had been in error. Petitioner made the required materiality showing and the documents sought were not protected from disclosure as opinion work product. Kozlowski, 11 N.Y.3d at 243, 6495321.4

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245. When the Court of Appeals nevertheless affirmed the trial court’s quashing of the subpoena as an appropriate “exercise of discretion,” even though the high court had rejected the trial court’s specific finding (fishing expedition) and holding (opinion work product) that were the bases of its exercise of discretion, the high court all but placed the determination of the trial court beyond review. As authority for this exercise of deference to trial court’s “discretion,” the Court of Appeals cited its own opinion in Gissendanner. But Gissendanner did not say that a trial court has discretion to quash a subpoena for specific documents that, as here, are material to the credibility of prosecution witnesses. Instead, Giddsendanner said the opposite:

“access must be afforded to otherwise

confidential data relevant to the determination of guilt or innocence.” 48 N.Y.2d at 548 (emphasis added). Although the Gissendanner Court concluded that there had been no “abuse of discretion” in that case, it did so only because “nothing better than conjecture [had] been presented to the court” to support subpoena issuance. Id. at 550. While Gissendanner thus permitted trial courts to sometimes exercise discretion with respect to subpoena enforcement, it explained that, within the context of requests for impeachment materials, such requests are discretionary only when motivated by “nothing more than impeachment of witnesses’ general credibility,” as distinguished from “specific biases, prejudices,” etc. 6495321.4

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Plainly,

Gissendanner provides no license to quash a criminal defendant’s subpoena for specific, potentially important impeachment materials, without, at a minimum, court inspection of the documents – something the trial court did not do here. In sum, the New York Court of Appeals cut the legs out from under the holding that had supported the trial court’s decision to quash. The court sought to replace the foundation of the trial court’s ruling with a perceived, but imaginary statutory requirement that, for the trial court, had been little more than an afterthought, not instrumental to its decision. In any event, the condition that the Court of Appeals created for a defendant seeking to subpoena specifically identified, relevant impeachment materials is unconstitutional. E.

Quashing the Subpoena Violated Petitioners’ Constitutional Rights. For two related, but independent reasons, Mr. Kozlowski’s constitutional

rights were violated by the quashing of his subpoena. First, as explained above in subsection “B,” a criminal defendant’s right to use compulsory process to obtain potentially exculpatory evidence is of constitutional dimension and may not be cast aside, as the New York court did here, based only on an expansive interpretation of a non-constitutional qualified discovery privilege. Second, the constitutional right to present a defense includes a right to challenge the credibility of prosecution witnesses, and this right may not be eviscerated or undercut arbitrarily without

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violating the Sixth and Fourteenth Amendment guarantees of the right to present a defense and to the due process of law. As explained below, the New York high court’s stated reason for sustaining the quashing of the subpoena was based on its application of a rule that is so patently arbitrary that it fatally infected the high court’s ruling. 1.

By Conditioning Petitioner’s Right to Access Exculpatory Materials on a Requirement That was Arbitrary and Served No Legitimate State Interest, New York’s Courts Violated Petitioner’s Right to Present a Defense.

A criminal defendant’s right to present his defense is protected by the Sixth and Fourteenth Amendments. On numerous occasions, the Supreme Court has held that, “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006); Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). Although this constitutional principle does not “confer the right to present testimony free from the legitimate demands of the adversarial system,” Nobles, 422 U.S. 225, procedural or evidentiary rules may not be applied in such a way as to have an “arbitrary or disproportionate” impact on a defendant’s ability to present his or her defense, Holmes, 547 U.S. at 324; United States v. Scheffer, 523 U.S. 303, 308 6495321.4

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(1998); Michigan v. Lucas, 500 U.S. 145, 151 (1991); Rock v. Arkansas, 483 U.S. 44, 55-56 (1987). Arbitrary restrictions that prevent a defendant from obtaining or utilizing evidence important to his defense are clearly outweighed by a defendant’s need to obtain and utilize relevant, potentially exculpatory information or materials. See, e.g., Holmes, 547 U.S. 319; Rock, 483 U.S. 44; Ritchie, 480 U.S. at 39; Delaware v. Van Arsdall, 475 U.S. 673 (1986); Crane, 476 U.S. at 683; Green v. Georgia, 442 U.S. 95 (1979); Davis, 415 U.S. at 308; Chambers v. Mississippi, 410 U.S. 284 (1973); Smith v. Illinois, 390 U.S. 129 (1968); Washington v. Texas, 388 U.S. 14 (1967); Taylor v. Illinois, 484 US 400, 408 (1988). The right of an accused to present his defense includes the right to confront the prosecution’s witnesses, through cross-examination, for the purpose of challenging their testimony. Chambers, 410 U.S. at 294 (“The rights to confront and cross-examine witnesses . . . have long been recognized as essential to due process.”); see also Crawford v. Washington, 541 U.S. 36 (2004); Davis, 415 U.S. at 316 (“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”). Although the right to confront and cross-examine may occasionally bow to other “legitimate” interests, where such an interest is asserted, it must be “closely examined.” Chambers, 410 U.S. at 295. Material that would allow a defendant to challenge the prosecution’s 6495321.4

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witnesses on the subject matter of their testimony falls within the category of constitutionally significant evidence. Jencks, 353 U.S. at 667; Palermo, 360 U.S. at 362-63; Davis, 415 U.S. at 318. Even when such materials are ordinarily subject to a qualified protection for the privacy or confidentiality of a third party, the constitutional right of a criminal defendant to offer evidence that might influence the determination of guilt takes precedence. Ritchie, 480 U.S. at 57–58 (holding that due process was violated by quashing a criminal defendant’s subpoena for confidential files of a state agency that investigates claims of child abuse), Davis, 415 U.S. at 318 (holding that Sixth Amendment right to present a defense outweighed countervailing privacy interest). As the Supreme Court summarized in Ritchie: [T]he Court has articulated some of the specific rights secured by [the compulsory process clause] of the Sixth Amendment. Our cases establish, at a minimum, that criminal defendants have . . . the right to put before a jury evidence that might influence the determination of guilt. 480 U.S. at 56. At the outset, the New York Court of Appeals decision unreasonably applied this principal of clearly established federal law – that defendants have a Sixth Amendment right “to put before a jury evidence that might influence the determination of guilt.” As explained above, by rejecting Petitioner’s subpoena,

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based only on his purported failure to satisfy the requirements of the civil discovery statute, the court did not treat Petitioner’s interest in subpoena enforcement as a federal constitutional right, as it was required to do. In many ways, the violation of Petitioner’s rights was even more extreme than that suffered by the defendant in Ritchie. In that case, the Supreme Court specifically held that a defendant’s constitutional right to due process required enforcement of a subpoena, issued to a state agency that investigates the sexual abuse of children, for “verbatim statements” made by a prosecution witness, even though the agency’s records were confidential under state law. 480 U.S. at 45, 58. In reaching this conclusion, the Court emphasized that the state statute did not provide for “unqualified” confidentiality and, instead, permitted disclosure in “certain circumstances.”

Id. at 57-58.

Given the qualified nature of the

confidentiality interest, the Court held that the defendant was “entitled,” as a matter of due process, to trial court review of the file to determine if it contained “information that probably would have changed the outcome of his trial.” Id. at 58; see also Rovario v. United States, 353 U.S. 53, 60-61 (1957) (holding that the confidentiality of a government’s informant must give way to an accused’s right to defend against criminal charges). If the legitimate confidentiality interests at issue in Ritchie (information about the sexual abuse suffered by a child) and Davis 6495321.4

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(protecting anonymity of juvenile offenders) must yield to a criminal defendant’s right to present his defense, then plainly, Tyco’s much less weighty interest in the qualified protection of litigation materials must also yield. Similarly, the state procedural rule whose application here caused Petitioner to suffer the loss of access to important evidence is even more arbitrary than the state law rules whose application was held to violate the due process clause in Chambers.

In that case, the Supreme Court held that the “voucher rule”

(prohibiting a party from impeaching his own witness) “plainly interfered with Chambers’ right to defend against the state charges.” Id. at 298. The voucher rule, unlike the requirement imposed by New York’s Court of Appeals that a criminal defendant investigate a case before it exists, at least had the favorable attribute of having been gradually developed as a part of the common law and “might have been [a] logical” rule of evidence in the past. Id. at 296. No such statement can reasonably be made in defense of the requirement crafted here by the New York Court of Appeals. Moreover, just as Mississippi did not “defend the [voucher] rule or explain [it],” id. at 1046-47, New York has never defended or sought to proffer any legitimate explanation for the existence of the “investigate before being charged” rule that the New York court crafted and imposed on criminal defendants.

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Mr. Kozlowski sought to challenge the credibility of critical testimony by confronting the Director-Witnesses with their earliest recorded statements, made to Tyco’s private internal investigators about the very subject of their trial testimony. As the New York Court of Appeals recognized, it was reasonably likely that the Director-Witness statements, if produced, would have enabled the defense to “contradict the statements of key witnesses for the People.” Kozlowski, 11 N.Y.3d at 243. Plainly, this finding of relevance and materiality more than satisfied the requirement of a “plausible showing” that the subpoenaed materials “would have been material and favorable to his defense.” See U.S. v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982). And thus, for the reasons explained above, this interference in Mr. Kozlowski’s ability to mount an effective challenge to the credibility of the prosecution’s case, e.g., to “contradict the statements of key [prosecution] witnesses,” is unquestionably of constitutional consequence. When the New York Court of Appeals ruled that Mr. Kozlowski was not entitled to the enforcement of a subpoena for evidence having significant impeachment value, it elevated the qualified privilege held by Tyco (as the recipient of the subpoena) to keep its litigation materials confidential above Petitioner’s constitutional right to present his defense. In so doing, the court unreasonably applied clearly established federal law, as determined by the United 6495321.4

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States Supreme Court.

When, as here, a criminal defendant seeks to obtain

evidence that has genuine potential to undercut the prosecution’s case, and the only ground cited as a basis for quashing a subpoena for such evidence is the protection of a qualified privilege (e.g., materials prepared in anticipation of litigation), the qualified privilege must give way to a defendant’s constitutional right to present a defense. Moreover, when, as here, the extent of the protection granted to materials purportedly covered by the qualified privileged rests on a court’s invention of a requirement not found in the statute that defines and regulates access to such materials, and particularly when the effect of that court-imposed requirement is to require a defendant to conduct investigative interviews before he is criminally charged, the application of the qualified privilege is arbitrary and cannot prevail against a Defendant’s constitutional right to obtain exculpatory impeachment material. Thus, there can be no question that the state rules allowed to prevail over Petitioner’s rights were arbitrary. By requiring Petitioner (as a condition of later subpoena enforcement) to have undertaken to defend the future case against him (by seeking witness interviews), before the case even existed, New York turned the justice system upside down. Public prosecutors make accusations, and only then is the subject of those accusations required to defend himself. 6495321.4

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No plausible,

legitimate state interest is served by requiring putative criminal defendants to investigate criminal cases before they exist. New York’s highest court stumbled upon the imposition of such a requirement – but imposed it nevertheless – as part of an effort to find a basis to sustain a lower court ruling whose underpinnings it had rejected. In so doing, the Court of Appeals founded its determination on a requirement so arbitrary that it violated Petitioner’s constitutional due process right to obtain evidence to which he was constitutionally and statutorily entitled. F.

The Error Was Not Harmless. On habeas review, the standard for evaluating whether “harm” resulted from

a violation of a constitutional right is whether the violation “had a substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v.

Abrahmson, 507 U.S. 619, 638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). The trial court’s erroneous refusal to require disclosure of the Director-Witness statements plainly had such an effect. Indeed, this conclusion is a necessary corollary of the New York Court of Appeals’ finding that the specific subpoenaed documents were “reasonably likely” to contain “material that could contradict the statements of key witnesses for the People.” Kozlowski, 11 N.Y.3d at 243. Moreover, because the materiality prong of a right to present a defense claim has a prejudice component, a determination of materiality makes it

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redundant to conduct a separate analysis of harmlessness under Brecht. See Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000). In other words, because a finding of materiality necessarily includes a determination that the withheld evidence could have created a reasonable doubt, the deprivation of access to material evidence cannot be harmless. As New York’s highest court found, here, the statements, had they been disclosed, were reasonably likely to have enabled the defense to “contradict” important testimony by “key” prosecution witnesses. Therefore, the deprivation of access to those important statements was self-evidently injurious to Mr. Kozlowski. A brief analysis of the evidence in this case serves to underscore this conclusion. In many criminal cases – particularly white collar cases involving dense corporate documents – a highly effective method of exposing the truth is by reference to the witnesses’ statements made before any motive to fabricate arises. This principle was never more applicable than in this case. The evidence against Petitioner was almost wholly circumstantial. There was no cooperating witness who revealed a corrupt plan. No witness testified that Mr. Kozlowski ever asked him or her to lie or to camouflage any transaction, or that Mr. Kozlowski ever made an incriminating statement. The bonuses appeared in Tyco’s books and records and were known by dozens of people, including the heads of several Tyco 6495321.4

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departments as well as Tyco’s outside auditors. See PA74-94 (Tr.2 9381-401); PA99-105 (Tr.2 13339-45); PA229 (A424); PA117-18 (AD4284-85). For these reasons, the strongest evidence against Petitioner was the directors’ testimony that they did not know of or approve the bonuses. Had Mr. Kozlowski been able to cross-examine the directors with their own prior statements to BSF about this subject at a time when Mr. Swartz was actively performing his CFO duties, he would have been able to undermine their testimony in a most dramatic way. Furthermore, there can be little doubt that the directors’ trial testimony was shaped by events that occurred after they were interviewed by BSF in the early days of the investigation, which underscores the defense’s need for those documents. See EEOC v. Safeway Store, Inc., 2002 WL 31947153, at *7 (N.D. Cal. Sept. 16, 2002) (“[T]here is no substitute for the contemporaneous statements made by those witnesses close in time to the alleged incident.”). Before the Indictment, the directors had knowingly paid Defendants a sum of nearly $400 million in 1999-2001. PA17 (Tr.2 1459). In 2001, upon hearing Mr. Kozlowski’s request for an amendment to his retention agreement that would have increased his benefits by more than $100 million (and Mr. Swartz’s by over $50 million), the directors responded: “[g]ive him what he wants.” PA38 (Tr.2 3425) (Prue).

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After Mr. Kozlowski left Tyco in early June 2002, Mr. Swartz remained as CFO that summer, signing SEC filings, dealing with Tyco auditors, and leading investor conference calls. Perhaps most significantly, Mr. Swartz was paid more than $50 million when he left the Company, hardly the send-off typically enjoyed by a person believed to have been embezzling for years. At that time, the directors were receiving regular updates about the internal and criminal investigations and thus they were not laboring under a misunderstanding of Mr. Swartz’s conduct. However, their tune changed by the time of the indictment, and therefore well before trial, undoubtedly as a reflection of their own status as civil defendants, Tyco’s lawsuits against Mr. Kozlowski and Mr. Swartz, the ongoing criminal investigation, and the post-Enron shockwaves that were reverberating throughout corporate America.21 Notably, in 2005, the directors had significant trouble remembering the events of 1999 through 2002.22

Gaps in their memory were often filled by

21

See generally The Evolving Role of General Counsel: Leadership in Challenging Times, August 2006 NLJ Supp., at 5-6 (comments of former U.S. Attorney James Comey: “we set out in the summer of 2002 [after Enron, WorldCom and Adelphia] . . . to send a shockwave” of “deterrence . . . in the white collar arena” through aggressive prosecutions). 22 See, e.g., PA59-60 (Tr.2 8521-22) (Slusser stating he was unable to recall 2002 controversy over General Counsel Mark Belnick’s compensation); PA33 (Tr.2 2466) (former Compensation Committee Chairman Walsh testifying, on direct, about how Committee set fiscal 2000 growth hurdles: “To be honest with you it is very difficult for me to reach back and pull one year out of my memory.”); PA43-44 (Tr.2 5079-80) (Foss testifying about FLAG bonus, which was the last one received: “I don’t have a complete recollection of it. It’s a long time ago.”); PA49 (Tr.2 6495321.4

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information that they obtained from the investigation itself. Director Slusser, for example, testified that he recalled two bonuses related to Tyco’s “FLAG” transaction, even though there was no dispute that only one such bonus had been paid. He explained why he believed there had been a second, “unauthorized” bonus: Q:

And can you tell us what is the basis of your understanding that Mr. Swartz, Mark Swartz received two bonuses related to the FLAG transaction?

A:

Well sir, part of the allegations here is that he received an unauthorized bonus for the FLAG transaction, he -*

*

*

Q:

So your testimony is that your reason for believing there are two separate bonuses is because of the charges in this case, is that your testimony?

A:

Well, that sir is one of the major allegations in this case.

PA65 (Tr.2 8813).23 On this record, there is little doubt that the interview notes would have made this a very different trial.

7668) (Pasman: “I don’t recall how the [bonus] formula specifically works, so I cannot respond to that.”). 23 See also PA69 (Tr.2 8817) (Slusser testifying he only learned of the “unauthorized” bonus by “listen[ing] to the attorneys representing the internal investigation at Tyco who I believe unearthed” it) (emphasis added); PA28 (Tr.2 2334) (Fort testifying that “I did not have a complete [understanding of the bonuses] until we got a full Boies report”); PA54 (Tr.2 7895) (prosecutor noting that director Pasman learned of the “thefts” “during the Boies investigation”). 6495321.4

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The civil case involving allegations of excessive compensation paid to former New York Stock Exchange chairman Richard Grasso amply demonstrates the point. See People ex rel. Spitzer v. Grasso, No. 401620/04 (N.Y. Co. Sup. Ct. April 11, 2006). Following Mr. Grasso’s resignation, the NYSE commissioned an attorney to conduct an internal investigation and to report his findings. The results of the investigation formed the basis of the Attorney General’s lawsuit claiming that Mr. Grasso had manipulated the NYSE board into paying him exorbitant compensation through “incomplete, inaccurate and misleading” information. The trial court ordered disclosure of the interview notes from the internal investigation. Tellingly, the notes revealed dramatic inconsistencies between what the directors had said about Mr. Grasso’s compensation in their interviews and what the Attorney General’s Office ultimately alleged in its complaint. See Kimberley A. Strassel, “Behind the Spitzer Curtain,” Wall Street Journal, June 14, 2005, at PA197-201 (A217-21). The notes reflected that “[k]ey directors admit[ted] that they knew exactly what they were doing in paying Mr. Grasso as they did.” PA197 (A217). One director acknowledged that “[w]e knew what we were doing when we paid him.

We did it purposely, and we believed it was the right

compensation.” Id. And another director observed that anyone who “indicates that there was opposition at the time to entering into the deal [to pay Grasso the 6495321.4

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requested compensation] . . . is practicing ‘revisionist history.’” PA199 (A219) (emphasis added). Here, too, there is a strong likelihood that the undisclosed statements would have exposed the directors’ trial testimony as “revisionist history.” Although it was Mr. Swartz, rather than Mr. Kozlowski, who remained as CFO and was paid more than $50 million after the Director-Witnesses gave their initial statements to Tyco’s investigators, it is highly likely that the directors’ subpoenaed initial statements would be similarly exculpatory regarding the bonuses paid to both Defendants.

The bonuses were based on the same transactions that both

Defendants pointed to as entitling them to receive the bonuses (with Mr. Swartz receiving half of the amount paid to Mr. Kozlowski). Moreover, even if the initial statements of the Director-Witnesses revealed only that they had been informed of the bonuses that Mr. Swartz was later accused of stealing, such an inconsistency with their trial testimony would still have been extremely valuable to Mr. Kozlowski’s defense. The credibility of the directors as witnesses would have been thoroughly undermined if Petitioner had been able to demonstrate to the jury that they had “changed their tune” with respect so important a subject as the propriety of the bonuses paid to Mr. Swartz.

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Finally, in addition to the prejudice caused by the denial of access to exculpatory material, the quashing of the subpoena gave the prosecution an unfair advantage with respect to the opportunities each side should have had to utilize the fruits of the internal investigation favorable to its position. Internal corporate investigations can be expected to uncover and develop evidence that is potentially helpful to both parties to a criminal action. To allow only one side to access that evidence, however, is to sanction an unfair trial. A review of the prosecutor’s summation demonstrates the point.

The

prosecutor argued that BSF was a “well respected, well known national law firm” that had been hired to conduct “a full and complete independent investigation,” that is, a “searching investigation of everything at Tyco.” PA222-23 (A380-81). The firm had been assisted by the “accounting detectives” whose “job really is to look specifically for fraud.” PA217 (A361). And, it was only “after the forensic auditors had come in and combed through all the tens of millions of pages that are the books and records of Tyco [a]nd after the Boies lawyers ha[d] done their investigation that information [came] to light about what these two defendants ha[d] been doing.” PA223 (A381); see also PA225 (A383) (“Ms. Galvani [of Boies Schiller] tells Mr. Boies what the accountants have found,” i.e., the disputed 1999 bonus credit). Thus, the prosecutor’s ability to manipulate what the jury 6495321.4

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learned about the BSF investigation compounded the unfairness inherent in Defendants’ inability to obtain the fruits of the investigation, favorable to them. In sum, Petitioner’s ability to effectively challenge the prosecution’s case was unquestionably damaged by the unconstitutional deprivation of his access to important impeachment material. G.

The Appropriate Remedy is to Grant the Writ of Habeas Corpus. Petitioner urges that the most appropriate remedy for the violation of his

right to present his defense is the granting of the writ. Although it is plain that Petitioner suffered constitutionally significant harm, to some extent it is impossible to ascertain, with precision, the extent of the prejudice Petitioner suffered; the subpoenaed materials have never been inspected by any court. But this uncertainty is not a reason to restrict the remedy, e.g. to an inspection of the subpoenaed materials either by this Court or state court. Petitioner’s request for a stronger remedy is supported not only by well settled law, but also, by a particular fact that cannot be divorced from the constitutional violation – the prosecution’s complicity in the violation. As explained below, it is almost inconceivable that the violation would have occurred without the prosecution’s complicity.

Therefore, to the

extent that the scope of the harm cannot be accurately measured and the remedy is

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therefore difficult to fix, the prosecution, because of the role it played in causing the difficulty of measurement, should suffer the consequence. As the Second Circuit recently stated, “[t]he appropriate remedy for a constitutional violation is ‘one that as much as possible restores the defendant to the circumstances that would have existed had there been no constitutional error.’” United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008) (quoting United States v. Carmichael, 216 F.3d 224, 227 (2d Cir. 2000). Here, the only remedy that even comes close to restoring Petitioner to the circumstances that would have existed, had there been no constitutional error, is enforcement of the subpoena so that, at a retrial, Petitioner may use the subpoenaed material to cross examine the prosecution’s witnesses. In other words, the writ must be granted. It is also important to point out that under New York law, Petitioner is entitled to a reversal. In People v. Combest, 4 N.Y.3d 341 (2005), the defendant unsuccessfully subpoenaed unaired portions of a videotape made by a production company during his arrest and interrogation.

Applying a test similar to

Gissendanner, the New York Court of Appeals held that the defendant overcame the journalist’s qualified privilege because by its nature the tape was “highly material and relevant” and was “critical or necessary” to his claim of self-defense.

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Combest, 4 N.Y.3d at 349. The court reversed for a new trial, without examining the tape or remanding for a hearing. Combest parallels this case in another regard. The court there cautioned that “the police may not immunize themselves from their obligation to provide defendants with copies of their own taped statements simply by letting a news organization . . . operate the cameras.” Id. at 350. Although the court did not need to decide “whether the indicia of state involvement in this case rise to the level at which private conduct is transformed into state action,” it noted that, had the police done the work itself, the defendant would have received the tape in discovery. Id. Similarly, the Court here need not decide whether the Boies firm became a state actor, but its close cooperation with the DA’s Office allowed the prosecution to develop a one-sided evidentiary record and to shield from Defendants key statements that would have been discoverable had the prosecutors conducted the interviews themselves. Indeed, in an apparent effort to disclaim Rosario obligations, the prosecution trumpeted the fact that they never even requested, let alone received, any BSF work product. See PA303 (Prosecution Appellate Division Brief at 278) (“[T[he People never sought, and the Boies firm never disclosed, any Boies firm attorney work-product to the grand jury or to the prosecution.”) (emphasis in original). 6495321.4

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Given the “culture of waiver” and the widespread expectation that internal investigation results will be turned over to the government, the prosecution’s failure even to request these materials is suspect. There can be no question that the work product of BSF would have been incredibly useful to the prosecution – just as the results of such investigations have proven incredibly useful (if not indispensable) to federal prosecutors. Moreover, given that the prosecution sought and received from Tyco over ten million pages of documents relating to the alleged wrongdoing at issue in this case (many of which were privileged), see id., any suggestion that the prosecution was somehow being solicitous of Tyco’s qualified protection over the BSF litigation materials rings particularly hollow. Instead, given the looming threat of indictment against Tyco, and Tyco’s incentive (like any other rational corporation) to please the prosecutors at virtually all costs, it is clear that the BSF work product materials were the prosecution’s, simply for the asking. Although the reason for the prosecution’s decision not to request those materials cannot be stated with certainty, it is highly likely that it refrained from requesting the witness statements because they already knew their underlying substance based on oral presentations made by BSF. It is widely known that, in an attempt to avoid claims of privilege waiver by third parties, corporate counsel are 6495321.4

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increasingly using oral presentations, rather than disclosure of written materials, to present internal investigations findings to the government.24 Although there was no question that BSF and the prosecution engaged in frequent, substantive communications, the trial court held that there was no evidence that BSF “provided work product directly or indirectly to the People.” PA193 (A213). But the court based that conclusion on a review of written correspondence between BSF and the prosecution (evidence that plainly does not speak to the existence of oral presentations of work product material), and on a craftily-worded affirmation by Tyco that easily left open the possibility that BSF had made such oral presentations. For example, Tyco stated that Swartz was “incorrect” that “Boies Schiller orally presented to the District Attorney the substance of everything contained in its attorneys’ memoranda and notes.”

PA188 (A208) (emphasis

added). Of course, to the extent the prosecution learned the substance of these witness statements from BSF oral presentations, the prosecution would have been obligated to disclose to Defendants any material exculpatory and impeaching Brady/Giglio material of which they became aware, whether or not the prosecution

24

See John Gibeaut, Junior G-Men, 89-Jun A.B.A. J. 46, 51 (2003) (“[S]ome prosecutors and private sector lawyers suggest that a few winks and nods to point the government in the right direction may avert demands for privileged materials.”). 6495321.4

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made written notes of the presentation. See, e.g., United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007). In sum, there was no conceivable reason for the prosecution not to have requested copies of the Director-Witness statements from Tyco, other than an intention to avoid incurring an obligation to disclose, to the defense, evidence that the prosecution believed would undercut the credibility of its witnesses. An opinion authored by Learned Hand, also supports Petitioner’s request for a new trial. In United States v. Andolschek, 142 F.2d 503 (1944), the Second Circuit reversed the convictions of three defendants, inspectors at the Treasury Department’s “Alcohol Tax Unit,” for conspiracy to violate the internal revenue code. The principle issue raised on appeal was the “exclusion” of certain Treasury Department reports, apparently relevant to the defense of the case, on the ground that the trial judge believed that Treasury Department regulations forbade disclosure of the reports under any circumstances. Id. at 505. Although the reports were unquestionably entitled to statutory confidentiality, the court concluded simply that “so far as [the reports] touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess.” Id. at 506. The content of the reports was “not in the record,” but it was apparent that the reports would have been relevant to the defense because the charges arose out of 6495321.4

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the defendants’ discharge of their official duties and the reports “would bear upon how the accused” had performed those duties. Id. at 505. Given that the reports were not before the court, it was not possible to discern the precise degree of prejudice the defendants had suffered. But the court had little trouble deciding that the remedy for this violation of the defendant’s ability to present their defense had to be a new trial: We cannot of course know, as the record stands, how prejudicial the exclusion may have been, but that uncertainty alone requires a new trial; for it does not affirmatively appear that the error was insubstantial within the meaning of 28 U.S.C. § 391. Id. at 506. Similarly, to the extent that uncertainty exists about just how much prejudice Petitioner suffered as a result of the trial court’s quashing of his subpoena, that uncertainty also supports a new trial here. This conclusion is supported by wellsettled federal law, recent authority from New York’s highest court, and is an equitable and appropriate remedy, given the prosecution’s likely instrumental role in causing the violation of Petitioner’s rights.

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POINT II NO ADEQUATE AND INDEPENDENT STATE-LAW GROUND FORECLOSES HABEAS REVIEW OF PETITIONER’S CLAIMS. The Court of Appeals’ opinion contained an assertion that Petitioner had not “raised” his constitutional argument in the trial court. To whatever extent that this assertion appeared to hint at the suggestion of procedural default, that is all it did. Because the assertion was at best a hint and not a “plain statement” of procedural default, it does not bar federal review of Petitioner’s claim. Even if, initially, the Court of Appeals had plainly stated a reliance on procedural default, such initial statement would nevertheless not have foreclosed federal review, given what followed. That is, the court went on to inject additional ambiguity into the subject of whether its opinion depended only on state law when, after stating the court would not “address” federal constitutional considerations, its opinion went on to do just that – explicitly discussing federal constitutional considerations. Finally, even if the Court had plainly stated a reliance on procedural default and thereafter avoided creating ambiguity about its reliance on procedural default, the concept of procedural default would nevertheless still not be an “adequate” ground to foreclose review for another reason: Petitioner substantially complied with the state-law contemporaneous-objection requirement and where, as here, “perfect” compliance with the state contemporaneous objection rule would have been futile, 6495321.4

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federal law does not treat a technical error in complying with a state procedural rule as a basis for finding the underlying claim procedurally defaulted. A.

The Court of Appeals Did Not Make a Plain Statement That Petitioner’s Constitutional Claims Were Procedurally Defaulted. Federal courts will not consider a question of federal law on review from a

state-court decision if that decision rests on an independent and adequate state-law ground. Harris v. Reed, 489 U.S. 255, 260 (1989). However, a defendant’s procedural default under state law “does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” Id. at 261. If the state court fails to make such a “plain statement” of procedural default, a federal court “may reach the federal question on review.”

Ylst v.

Nunnemaker, 501 U.S. 797, 802 (1991); Harris, 489 U.S. at 261 (same); Michigan v. Long, 463 U.S. 1032, 1042 (1983) (same). See also Jimenez v. Walker, 458 F.3d 130, 136 (2d Cir. 2006) (Because it is often difficult to determine whether a state court judgment rests on the merits of a federal claim or on an independent state procedural bar, “the Supreme Court created a conclusive presumption to guide the inquiry.”) Even where the petitioner in fact failed to present a federal claim to the state trial court, federal courts will hear that claim if ambiguity exists as to whether the last state court to hear the claim relied on procedural default as the basis for its 6495321.4

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determination. See Victor v. Nebraska, 511 U.S. 1, 19 (1994); Harris, 489 U.S. at 261-62; Siripongs v. Calderon, 35 F.3d 1308, 1317-18 (9th Cir. 1994); Ylst, 501 U.S. at 801. As the Supreme Court very recently stated, unless the state court expressly states that its decision is based on procedural default, federal courts will assume that the state court declined to apply the state procedural bar and “will not second-guess their judgment.” Cone v. Bell, 129 S.Ct. 1769, 1782 & n.13 (2009). Here, the Court of Appeals did not make a plain statement of procedural default – the threshold requirement for declining to reach the merits of a federal habeas claim on procedural default grounds. New York’s court merely commented that “defendants did not raise a constitutional argument in support of their subpoena below.”

Kozlowski, 11 N.Y.3d at 242 n.11.

Federal courts have

repeatedly held that such phrases do not constitute a “plain statement” of procedural default, as a matter of federal law. Victor v. Nebraska, 511 U.S. 1, 19 (1994) (holding that state court’s reference to petitioner’s “failure to object” or to “raise the issue on direct appeal” did not satisfy plain statement rule); Harris, 489 U.S. at 265-66 (finding state court’s remark that petitioner’s claims “could have been raised [on] direct appeal” insufficient to satisfy plain statement rule); Jones v. Stinson, 229 F.3d at 118 (reaching the merits of habeas claim even though New York’s appellate division “set forth the factual predicate for a finding of procedural 6495321.4

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default” because the court “never actually stated that the issue was not preserved); Nickerson v. Lee, 971 F.2d 1125, 1129 (4th Cir. 1992) (finding that state-court decision which did not mention “procedural default (or any synonymous term)” and lacked citation to relevant statutory or case law failed to satisfy plain statement rule); Willis, 956 F.2d at 2 (finding no plain statement of procedural default where state court addressed merits of federal claim and then added “Further, Appellant failed to object to this testimony”); Rose v. Lane, 910 F.2d 400, 402 (7th Cir. 1990) (finding lack of plain statement of procedural default where state court noted that petitioner’s failure to request instruction at trial was “grounds for waiver”); see also Arizona v. Evans, 514 U.S. 1, 10 (1995) (finding state court’s statement that federal law was “being used only for the purpose of guidance” inadequate to satisfy plain statement rule). When examining the basis for a state court’s adjudication of a federal claim, one of the “clues” the Second Circuit looks to is “the practice of state courts in similar circumstances.” Jimenez v. Walker, 458 F.3d 130, 145 at n. 16 (2006). The language used by the Court of Appeals in footnote 11 is not the language that court regularly uses in similar circumstances to describe a defendant’s purported procedural default, when the grounds for default relate to New York’s contemporaneous objection rule. Rather, the court’s practice is to use the clear 6495321.4

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term “unpreserved’ to indicate procedural default. See, e.g., People v. Passino, 12 N.Y.3d 748, 749 (N.Y. Ct. App. 2009); People v. Middleton, 12 N.Y.3d 737, 738 (N.Y. Ct. App. 2009); People v. Ennis, 11 N.Y.3d 403, 414 n.2 (N.Y. Ct. App. 2009); People v. Hawkins, 11 N.Y.3d 484, (N.Y. Ct. App. 2008); Town of Rye v. NY Bd. of Real Prop. Servs., 10 N.Y. 3d 793, 795 (N.Y. Ct. App. 2008); People v. Melendez, 8 N.Y. 3d 886, 887 (N.Y. Ct. App. 2007); People v. Person, 8 N.Y. 3d 973, 974 (N.Y. Ct. App. 2007); People v. Rivera, 9 N.Y. 3d 904, 905 (N.Y. Ct. App. 2007); People v. Grant, 7 N.Y.3d 421, 424 (N.Y. Ct. App. 2006). All of these cases demonstrate that the court uses some form of the word “preservation” when it holds a claim to have been procedurally defaulted based on New York’s contemporaneous objection rule. The court’s recent decision in Hawkins (particularly its companion case, People v. Eduardo), demonstrates further that, when the court describes constitutional claims as not having been “raised below,” this does not necessarily mean that such claims are procedurally defaulted under New York law. 11 N.Y.3d 484. In Hawkins, the court held that although defendant Eduardo “raised no constitutional claims at trial, his [constitutional] legal sufficiency claim is in fact preserved.” Id. In other words, it is not the same thing, under New York law, to

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state that a defendant “raised no constitutional claims at trial” as it is to state that a defendant failed to “preserve” his constitutional claims. It is noteworthy that the Court of Appeals used “preservation” language with respect to other of Petitioner’s claims in this case, but did not do so with respect to his constitutional claims. Kozlowski, 11 N.Y.3d at 250 (“We have considered defendants’ remaining arguments and conclude that they are either unpreserved or without merit.” (emphasis added)).25 Since the Court of Appeals failed to make a plain statement of procedural default, federal review of Petitioner’s constitutional claims is not foreclosed. Moreover, where a state court’s determination is “interwoven with federal law,” as the Court of Appeals’ decision was here, a federal court “may reach the federal question on review unless the state court’s opinion contains a plain statement that its decision rests upon adequate and independent state grounds,” even when the court makes an otherwise clear statement that the claim would also be procedurally barred on state-law grounds.

Ylst, 501 U.S. at 802 (internal

quotation marks, ellipsis and brackets omitted); Harris, 489 U.S. at 261 (same);

25

It should be noted, however, that the “either/or” language used by the court in this paragraph creates a separate ambiguity that would also fail to satisfy the plain statement rule. Cox v. Miller, 296 F.3d 89, 100 (2d Cir. 2002) (finding that state court’s holding that appellant’s “remaining contentions are either unpreserved for appellate review or without merit” did not constitute a plain statement of procedural defect).

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Long, 463 U.S. at 1042 (same); see also Three Affiliated Tribes v. Wold Engineering, P.C., 467 U.S. 150, 152 (1984) (holding that where “a state court’s interpretation of state law has been influenced by an accompanying interpretation of federal law,” that decision does not rest on an “independent” state-law ground). By reaching a petitioner’s federal claim, even after having found a procedural bar, a court relies, necessarily, on two different grounds for its decision. Rogers-Bey v. Lane, 896 F.2d 279, 281 (7th Cir. 1989). If that court intends to rely on the statelaw procedural default, and simply wants to note that there were alternate, federal grounds on which it could have based its decision, the court “must actually state that it is doing so and that other grounds are reached only in the alternative.” Id. at 282. If, on the other hand, the court addresses federal issues without making such a statement, the court “interjects ambiguity and opens the door to federal review.” Willis v. Cohn, 956 F.2d 1165, ____ (7th Cir. 1992). Here, after dropping a footnote that “defendants did not raise a constitutional argument in support of their subpoena below,” the Court of Appeals went on to address the subpoena issue in light of federal constitutional law. Kozlowski, 11 N.Y.3d at 242 (“In applying [the Gissendanner] standard, we must give due regard to the accused’s right to a fair trial (Ritchie, 480, US at 56; Nixon, 418 at 711).”). The “face” of the opinion does not indicate that it rested on state-law grounds 6495321.4

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alone, such as lack of preservation, or that it reached the merits of the constitutional issues only in the alternative. See Jimenez, 458 F.3d at 145, n. 16. Since the Court of Appeals considered the constitutional principles advanced by Defendants without making a plain statement that its determination of the subpoena issue was independently based on state-law procedural-default grounds, Petitioner’s constitutional claims are properly before this Court for review. B.

Procedural Default is Not an Adequate State Ground on Which to Preclude Federal Review of Petitioner’s Constitutional Claims in This Case. For the reasons described above, procedural default cannot, as a threshold

matter, be considered an independent state-law ground for the Court of Appeals’ decision. But even if the Court had plainly stated a reliance on procedural default, and even if the Court had not intertwined its discussion with federal law, its decision would still not be adequate to foreclose federal review, based upon the factors that govern the question of when a state court’s facial reliance on procedural default is adequate to foreclose review, as a federal question. In Lee v. Kemna, 534 U.S. 362 (2001), the United States Supreme Court set forth three factors that courts should evaluate in this context.

Most notably, the factors

discourage reliance on procedural default where a petitioner’s strict compliance with state procedural rules would have been futile.

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1.

The Trial Court’s Decision to Quash Necessarily Rested on its Conclusion that Defendants’ Interest in the Subpoenaed Materials was Not of Constitutional Magnitude and Therefore, Defendants’ Perfect Compliance with the State Procedural Rule, e.g., Explicit Reference to the Constitution When Objecting to the Trial Court Ruling, Could Not Have Altered the Trial Court’s Decision.

The first factor is whether the state-court’s determination would have been the same regardless of whether the defendant had complied with the procedural requirement on which the state court’s decision purportedly rested. If the court’s determination would not have changed, federal-court review may be appropriate. In the Lee case, the defendant’s counsel made a motion to continue the case due to the sudden, unexplained disappearance of critical witnesses. 534 U.S. at 369. The judge denied the motion, stating that his daughter would be in the hospital on the following day, and he had other trials scheduled for the next two business days. Id. The ground asserted to block adjudication of the defendant’s federal claim on appeal, however, was that the defendant had not complied with a state procedural rule that supposedly required such motions to be submitted in writing and accompanied by an affidavit. Id. at 380-83. Since, based on the judge’s schedule, the defendant’s motion would not have been granted even if he had scrupulously complied with the asserted procedural grounds for denial, the Supreme Court held that the asserted grounds were “inadequate to block adjudication of a federal claim.” Id. at 363, 381. 6495321.4

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Similarly, in Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), the Second Circuit found that the defendant’s perfect compliance with New York’s preservation rule – the asserted state-law ground – would not have changed the trial court’s decision, as that decision was in fact made on substantive, rather than procedural, grounds. 331 F.3d at 242-43. Therefore, the asserted state-law ground was insufficient to preclude federal-court review of Cotto’s federal claim. Id. at 247; see also James v. Kentucky, 466 U.S. 341, 349 (1984) (noting that courts will not force litigants to engage in an “arid ritual of meaningless form”); Staub v. City of Baxley, 355 U.S. 313, 320 (1958) (same). Likewise, regardless of how clearly Petitioner expressed his claim that the quashing of the subpoena would violate his constitutional rights, the trial court, in any case, would have quashed the subpoena, given its plain, on the record determination that Petitioner’s subpoena was not of constitutional magnitude. Under New York’s standard for the enforcement of a subpoena, a criminal defendant is required to demonstrate that his subpoena is not merely a “fishing expedition” but is “reasonably likely” to “produce relevant and exculpatory evidence.”

Gissendanner, 48 N.Y.2d at 550.

This standard is based on the

recognition that restricting a criminal defendant’s access to relevant and exculpatory evidence implicates the defendant’s constitutional rights. Id. at 5476495321.4

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48; see also, e.g., Holmes v. South Carolina, 547 U.S. 319 (2006); Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Chambers v. Mississippi, 410 U.S. 284 (1973). In essence, the Gissendanner case divides subpoenas issued in criminal cases into two categories – those that have a constitutional dimension pass the “fishing expedition” test and must be enforced, while those characterized as “fishing expeditions’ do not have a constitutional dimension and may be quashed at the discretion of the judge. As the court put it, though access must be afforded to otherwise confidential data relevant and material to the determination of guilt or innocence . . . or when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial, there is no such compulsion when requests to examine records are motivated by nothing more than impeachment of witnesses’ general credibility. In such cases, the defendant’s rights have generally been canalized within the bounds of the traditional evidentiary rule that governs the introduction of extrinsic proof of matters collateral to the issues at trial. Gissendanner, 48 N.Y.2d at 548 (internal citations and quotation marks omitted). Therefore, when a court concludes that a subpoena amounts to a “fishing expedition,” it has necessarily determined that the defendant does not have a constitutional right to enforcement of that subpoena. The trial court in this case, after summarizing Defendants’ arguments about their reasons for needing the subpoenaed documents, held that “to seek disclosure 6495321.4

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on that basis would constitute the proverbial fishing expedition.” Tyco Int’l Ltd. v. Swartz, 2005 WL 6175342 *3 (Sup. Ct. N.Y. Co. 2005).

In making this

determination, the trial court necessarily decided that Defendants did not have a constitutional right to enforcement of the subpoena. After the trial court had found that Defendants’ subpoena was a fishing expedition – and therefore not of constitutional magnitude – Petitioner could not have realistically changed the trial court’s decision to quash the subpoena, regardless of whether and how explicitly he had articulated a constitutional objection to the trial court’s ruling. In any event, for Petitioner to have told the trial court that its finding the subpoena lacked constitutional dimension was itself “unconstitutional” would have truly been an arid, meaningless ritual. 2.

The Asserted State Ground Was Not Firmly Established.

The second factor that the Lee and Cotto courts held relevant to the appropriateness of federal-court review is whether the state ground asserted to block such review was a firmly established or regularly followed principle of state law. If the asserted state ground was not firmly established, federal-court review may be appropriate. In Lee, the court could find no precedent for requiring “flawless compliance” with the rule that motions for continuance be in writing and accompanied by an affidavit in the situation where critical witnesses had suddenly

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disappeared without explanation on the last day of trial. 534 U.S. at 382. The court held that, while the state procedural rules at issue were not themselves “novel” rules, the application of those rules to the facts of the case was a novel application. Id; See also Ford v. Georgia, 498 U.S. 411 (1991) (“[A]n adequate and independent state procedural bar to the entertainment of constitutional claims must have been firmly established and regularly followed.”); James, 466 U.S. at 348-49 (holding that only “firmly established and regularly followed state practice [] can prevent implementation of federal constitutional rights”); Hathorn v. Lovorn, 457 U.S. 255, 262 (1982) (holding state procedural rule inadequate where not applied “evenhandedly to all similar claims”); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 86 n. 9 (1980) (“This Court has held federal claims to have been adequately presented even though not raised in lower state courts when the highest state court renders an unexpected interpretation of state law or reverses its prior interpretation.”); Barr v. City of Columbia, 378 U.S. 146, 149 (1964) (noting that “state procedural requirements which are not strictly or regularly followed cannot deprive us of the right to review”); Bouie v. City of Columbia, 378 U.S. 347 (1964) (finding Supreme Court review appropriate where state court broadens application of state law beyond a fair reading so as to deny due process); Wright v. Georgia, 373 U.S. 284, 291 (1963) (finding Supreme Court review appropriate 6495321.4

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where there is no state precedent for holding); NAACP v. Alabama, 357 U.S. 449, 457-58 (1958) (“Novelty in [state] procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.”); Staub v. City of Baxley, 355 U.S. 313, 320 (1958) (holding state procedural rule inadequate where state court’s interpretation was contrary to prior state-court rulings). The Cotto case presents a particularly relevant example. In that case, New York’s preservation rule was asserted as the ground for blocking review of the defendant’s federal constitutional claims. The reviewing court looked to statecourt decisions interpreting the state’s preservation statute, and found that, under New York law, if an argument has already been rejected by the trial court, a defendant does not have to raise it himself in order to have that argument preserved for appeal. Cotto, 331 F.3d at 243-45 (citing People v. Edwards, 95 N.Y.2d 486, 491 n.2 (N.Y. Ct. App. 2000); People v. Seabrook, 241 A.D.2d 325, 326 (1st Dept. 1997); People v. Duncan, 177 A.D.2d 187, 190-91 (2d Dept. 1992); People v. Ayala, 142 A.D.2d 147, 157 (2d Dept. 1988); People v. Johnson, 144 A.D.2d 490, 491 (2d Dept. 1988). The court held that, since New York precedent indicated that Cotto was not required to make an additional objection in order to preserve his 6495321.4

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constitutional claim for review, the state court’s holding that his failure to make such an objection left his claim unpreserved was not an adequate state-law ground to preclude federal review. Cotto, 331 F.3d at 245. See also People v. Mezon, 80 N.Y.2d 155, 161 (1992) (holding that New York law “does not require litigants to make repeated pointless protests after the court has made its position clear”). Likewise, as discussed above, the trial court in this case necessarily rejected Petitioner’s argument that quashing the subpoena would violate his constitutional rights when it held that the subpoena was a “fishing expedition.” Under New York precedent, once an argument has been rejected by the trial court, a defendant does not have to raise that subject again in order to preserve his argument for appellate review. Id. at 161. Thus, to the extent that the Court of Appeals’ ambiguous opinion could be interpreted as a finding Petitioner did not preserve his constitutional argument due to his failure to raise it in the trial court, that holding departed from the firmly established, regularly followed precedent of the court and is therefore not an adequate ground to preclude federal-court review. 3.

Given the Realities of Trial, Defendants Substantially Complied with the Procedural Requirement.

The third factor discussed in Lee and Cotto is whether, given the realities of trial, the defendant substantially complied with the state procedural requirement at issue. 6495321.4

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procedural requirement, federal-court review is appropriate if the defendant substantially complied with that requirement. In Lee, the court examined the circumstances surrounding the defendant’s failure to comply with the state procedural rule, and held that “insistence on a written continuance application, supported by an affidavit, in the midst of trial upon the discovery that subpoenaed witnesses are suddenly absent, would be so bizarre as to inject an Alice-inWonderland quality into the proceedings.” 534 U.S. at 383. Given the realities of trial, the court held that Lee’s oral motion for continuance substantially complied with the state procedural rule and, under those circumstances, no adequate statelaw ground prevented federal-court review of Lee’s claim. Id. at 383, 387. In Cotto, the court found that the purpose of the contemporaneous objection rule was to alert the trial court to the objection while there was still an opportunity to address it. 331 F3d at 245. In looking at whether this purpose had been served, the court noted that Cotto’s counsel “indicated that a total bar on crossexamination was unfair” in his arguments before the trial court, that he “did not (and was not required to) use the specific words ‘Confrontation Clause’” in making his objection, and that “it is well established, and certainly no secret to criminal law practitioners and judges, that cross-examination of testifying witnesses is mandated by the Sixth Amendment’s Confrontation Clause.” Id. Under these 6495321.4

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circumstances, the court found it “difficult to argue that defendant had not made his position with respect to the ruling known to the court.” Id. (internal quotation marks omitted). Since “unyielding application of the general rule” would not serve any state interest in light of Cotto’s substantial compliance with that rule, Cotto’s purported lack of preservation was not an adequate state ground on which to deprive Cotto of federal review of his constitutional claim. In the instant case, too, Petitioner substantially complied with the procedural requirement of raising his federal constitutional claims in the trial court. Foremost, Defendants issued a subpoena for evidence which, by its very nature, is an invocation of the right to compulsory process. See In re Martin Marietta Corp., 856 F.2d 619, 621 (4th Cir. 1988) (“Rule 17(c) implements the Sixth Amendment guarantee that an accused have compulsory process to secure evidence in his favor.”); Wilson v. United States, 221 U.S. 361, 372 (1911); People v. Thurston, 619 N.Y.S.2d 465 (4th Dept. 1994); see also Christoffel v. United States, 200 F.2d 734 (D.C. Cir. 1952) (“The right of an accused by appropriate means to obtain evidence material to his defense is essential to the administration of the criminal law. A subpoena duces tecum to one who has custody of the evidence is an appropriate means.”).

In addition, Defendants described the subpoenaed

documents as “very very important,” PA256 at 24 (RA213 at 24), material to “the 6495321.4

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heart of [the] case,” PA238 (RA182), supporting an inference that key prosecution witnesses “changed their tune” about Defendants’ guilt, PA243 (RA187), having no equivalent because they consist of statements recorded during a “window of time,” PA256 at 24 (RA213 at 24), and undercutting “the credibility of directors” as witnesses, PA259 at 36 (RA216 at 36). In so doing, Defendants made it clear that their argument was founded on well recognized constitutional values. Even Tyco’s lawyer recognized that Defendants were making a constitutional argument when he characterized them as “Brady” like claims. PA259 at 37 (RA216 at 37). The trial court acknowledged Defendants’ contention that, regardless of whether Tyco had a valid claim of privilege, the subpoenaed documents were “nevertheless subject to disclosure.” PA192 (A212). Moreover, the trial court explained that it understood Defendants’ position to be that “work product protection should not apply because the contents of the requested memoranda and notes are…relevant to th[e] case.” PA194 (A214). The only conceivable reason that the subpoenaed documents could be technically protected by a privilege, but nevertheless subject to disclosure, is that constitutional values override the privilege. And, Defendants’ assertion that work product protection did not apply because the documents were materially relevant to the defense of their criminal case must have been understood to have a federal constitutional basis because it had no conceivable state-law 6495321.4

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statutory basis. Given these circumstances, it would be untenable to argue that the trial court was not apprised of the fact that Petitioner’s arguments were premised on constitutional values. Because Petitioner substantially complied with the requirement that the trial court be given notice of his federal claim in order to preserve that claim for review, there is no adequate state ground on which to preclude federal-court review of that claim. In sum, collectively, the three factors set forth in Lee v. Kemna strongly support the conclusion that habeas review should not be denied here.

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CONCLUSION Petitioner’s constitutional right to present his defense was violated by the quashing, on arbitrary grounds, of his subpoena for important, potentially exculpatory evidence. As a result, the trial below was fundamentally unfair and the writ should issue. Dated:

New York, New York August 31, 2009 Respectfully submitted, CARTER LEDYARD & MILBURN LLP By:

__________________________________ Alan S. Lewis 2 Wall Street New York, NY 10005-2072 (212) 732-3200 Attorneys for Petitioner

Of Counsel: Michael Shapiro Laura Reeds

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