Suddenly
No Punting
Yes, that is correct. It should have been submitted to the defense. Maybe it was, and nothing was done about it, figuring if she was convicted, she could come back on appeal. Maybe.
I don't know honestly.
That would be a pretty stupid gambit though.
As a bit of background, the government has a constitutional, not just statutory, duty to turn over exculpatory evidence. Such material is called "Brady" material after Brady v. Maryland 373 U. S. 83 (1963). If they turn it over, there will be a paper trail and no violation. If the defense then did nothing with it they can do nothing on appeal.
Now, more to the point, if the state failed to turn it over yet the defense knew about it, not using the information thinking to spring it on appeal would be so stupid as to boggle the mind. First, if it comes out that they knew, they can show no prejudice to the defendant by the state's failure seeing they had the evidence. Second, it is silly because all that can be won on appeal is a new trial. Holding good evidence back and risking placing your client on death row because you think you can spring the evidence later and be in the same place you would have been had you used the evidence in the first place is nuts. Plus you are going to have to show that you found this stuff after the trial, which isn't the case here.
Besides, nothing would stop the appeals court from making a shaky finding that the Brady material is not material to the outcome of the case and denying the appeal anyway.
