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 MARQUEZ v. COMMISSIONER OF CORRECTION—CONCURRENCE

   PALMER, J., concurring. I agree with the result that
the majority reaches, and with nearly all of its thought-
ful analysis, because I agree that, under the facts of this
case, any failure by the state to disclose an agreement
it allegedly had with one of its cooperating witnesses,
Edwin Soler, for leniency in exchange for his trial testi-
mony against the petitioner was not material for pur-
poses of Brady v. Maryland, 373 U.S. 83, 87–88, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny. I
write separately, however, to discuss briefly the issue
that, for purposes of this case, we need not, and do
not, decide, that is, whether any such agreement actu-
ally existed.
   As the majority explains, at the petitioner’s trial, Soler
testified that he had been made no promise of any
benefit by the assistant state’s attorney (prosecutor),
that he didn’t expect to receive any consideration for
his testimony, and that he was testifying solely because
it was ‘‘the right thing to do.’’ At the habeas trial, the
prosecutor’s testimony was consistent with Soler’s, as
was the habeas testimony of the attorney who repre-
sented Soler in his criminal case. On the basis of this
testimony, the habeas court found that there was no
undisclosed agreement, and the Appellate Court upheld
the habeas court’s determination, even though repre-
sentations by the prosecutor at Soler’s sentencing sug-
gested that he had told Soler’s counsel that Soler might
well receive a substantial reduction in both the charge
and sentence if he testified against the petitioner.1 In
fact, however, the prosecutor elected not to pursue
the felony murder charge, and Soler received a total
effective prison sentence of nine years, far less than
the mandatory minimum twenty-five year sentence he
otherwise faced on the felony murder charge.2 Needless
to say, any witness who had reason to believe that he
might receive such a benefit for cooperating with the
state would have a strong incentive to do so and would
be subject to cross-examination concerning that obvi-
ous and compelling motivation.
   Although I have no reason to second guess the habeas
court’s finding that there was no formal or definitive
agreement that Soler would receive a particular benefit
in exchange for his testimony, it seems clear that, at
the least, there was an understanding between the state
and Soler that he would receive consideration in return
for his testimony against the petitioner. In fact, the
majority acknowledges this fact in commenting on what
it characterizes as ‘‘the state’s practice’’—employed by
the state in the present of case—‘‘of informal, off-the-
record leniency understandings with cooperating wit-
nesses.’’ As the majority also recognizes, these under-
standings ‘‘can prevent defense counsel from effectively
impeaching the witness for [interest or] bias, perhaps
leaving jurors with the impression . . . that [the wit-
ness had no] incentive to testify favorably for the state.’’
(Internal quotation marks omitted.) And I also fully
agree with the majority’s observation that ‘‘[j]urors are
not well versed in the nuanced vagaries of such leniency
agreements. Yet, we rely on jurors to assess a witness’
credibility—including a witness’ motivation to testify—
while withholding from them critical information that
would help them assess just how motivated that witness
might be.’’ Because it is contrary to the vitally important
principles underlying Brady, ‘‘[t]his practice,’’ the
majority rightly concludes, ‘‘carries with it risks that
threaten the . . . fair administration of justice.’’
Indeed, such understandings, although informal and
perhaps somewhat undefined, are no less a motivating
factor for a cooperating witness than a more formal
cooperation agreement. This is so because, for all prac-
tical purposes, an understanding between the state and
the witness is really no different from an agreement
between the two.
   I therefore join the majority in urging that measures
be taken, by the state and, if necessary, by the trial
court, to ensure that ‘‘understandings’’ of the kind at
issue in the present case be disclosed to defense counsel
so that a cooperating witness may be questioned effec-
tively about that witness’ true motivation for testifying.
Although it may be understandable, as the majority
observes, for the state to be ‘‘concerned about making
actual, enforceable promises to the cooperating witness
because it does not want to commit to a precise out-
come until the witness has testified,’’ that concern is
readily addressed by the use of a properly crafted coop-
eration agreement, which is common in virtually all
jurisdictions, both federal and state. And although it
also is understandable that the state would prefer testi-
mony from a cooperating witness simply denying the
existence of any agreement or promise—exactly what
occurred in the present case—such testimony does not
accurately reflect the true nature of the understanding
or arrangement between that witness and the state.
  It seems clear that written cooperation agreements
are the fairest and most accurate way to identify and
memorialize any understanding that exists between the
state and a cooperating witness. In contrast to the
majority, I do not believe that the use of such agree-
ments would present any serious administrative diffi-
culty for the state—those agreements need not be
lengthy or complicated—and any modest inconve-
nience that might result from their use would be far
exceeded by their value in promoting fundamental fair-
ness in cases involving cooperating witnesses. That is
why in federal court, such agreements are routinely
reduced to writing and submitted to the court. See
United States Sentencing Commission, Guidelines Man-
ual (2018) § 5K1.1, p. 467. I therefore commend the
matter to the Rules Committee of the Superior Court
for its review and consideration.
   Finally, it is well known that, on the recommendation
of the prosecutor, cooperating witnesses in this state
invariably receive significant consideration from the
court for their cooperation, and, again, that is precisely
what happened in the present case. As the majority aptly
explains, ‘‘experienced [defense] counsel operating in
a courthouse in which he or she is familiar with the
practices of prosecutors and presiding judges can com-
fortably advise the witness of the possible credit that
might follow from his [or her] testimony.’’ Of course, I
have no quarrel with that practice, for the reality is
that the state needs to provide an incentive for certain
witnesses—many of whom, like Soler, were themselves
involved in the underlying crime—to testify on its
behalf. Nevertheless, at trial, the state cannot fairly
pretend that there is no understanding that the cooper-
ating witness will receive a considerably more lenient
sentence than he would have received if he had not
cooperated; indeed, it is virtually inconceivable that a
witness who decides to cooperate will not have been
advised by counsel, in one way or another, that his
cooperation will result in a markedly reduced sentence.
Consequently, if other approaches to identifying the
true nature of that understanding are not undertaken
by the state or the trial court, defense counsel may find
it necessary to seek a jury instruction explaining that
when the cooperating witness is sentenced, he reason-
ably can expect to receive a very significant benefit—
that is, a significant reduction in his sentence—for his
cooperation. Such an instruction would help alleviate
the serious unfairness that arises when jurors are misled
into believing that a cooperating witness—who, unbe-
knownst to the jurors, can expect to receive a reduced
sentence in return for his or her cooperation with the
state—is testifying only because ‘‘it’s the right thing
to do.’’
      I respectfully concur.
  1
     More specifically, the prosecutor told the court at Soler’s sentencing
that ‘‘the state had represented to [Soler’s] counsel that, in the event that
[the petitioner] chose to proceed to trial and that . . . Soler’s testimony
would be needed and would, in fact, be forthcoming and be proffered
truthfully . . . the state would sort of come off the felony murder [charge]
and charge various counts of robbery or some of the substantive offenses
in lieu of . . . felony murder since that would have a minimum mandatory
of twenty-five years to serve.’’
   2
     The petitioner, who, according to Soler and other witnesses called by
the state, was the shooter, received a total effective prison sentence of
thirty-five years.
