Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Last month, The Champion highlighted two cases illustrating vivid examples of prosecutorial discovery abuse. In this edition, Theresa A. Newman and James E. Coleman Jr., analyze the prosecutor’s ethical disclosure responsibilities, particularly in light of Opinion 09-454 issued by the ABA Standing Committee on Ethics and Professional Responsibility, which took effect on Jan. 1, 2010. (“The Prosecutor’s Duty of Disclosure Under ABA Model Rule 3.8(d)” at page 20). In “Beyond Brady: Using Model Rule 3.8(d) in Federal Court for Discovery of Exculpatory Information” on page 34, Irwin Schwartz suggests that practitioners can use this ethical rule as an alternative means to compel timely, broad disclosure. This is an exceptionally helpful suggestion, because it is increasingly clear that the Department of Justice (DOJ) remains disinclined to support meaningful reform.

In response to last year’s embarrassing revelations of discovery abuse, DOJ convened a working group to review its policies, practices, and training related to discovery practices. On Jan. 4, 2010, Deputy Attorney General David W. Ogden issued three memoranda in response to the recommendations of the working group.¹ While paying lip service to the detrimental impact of discovery lapses, the overall response is tepid at best. Proceeding from the questionable finding that “incidents of discovery failure are rare in comparison to the number of cases prosecuted,” the memoranda do little more than direct each district and litigating department to “develop a discovery policy that reflects circuit and district court precedent and local rules and practices.” But, are these policies likely to improve discovery practice?

The disappointing answer to that question is implicit in Ogden’s discovery guidance memorandum. While it provides a useful checklist of places to look for discoverable information, hints on how to conduct the review, and reiterates DOJ’s stated policy that disclosure of exculpatory and impeachment information is broader than is required by Brady and Giglio, it breaks little new ground. Instead, it perpetuates DOJ’s cramped, self-serving, self-regulating monopoly on the determination of what to disclose and when to disclose it. The guidance does not progress away from the Brady “materiality” standard, nor does it accomplish anything other than reinforce the current policy set forth in the U.S. Attorneys’ Manual, which remains burdened by highly restrictive and limiting language.² Indeed, from the outset the guidance memorandum underscores its cosmetic character by noting that “[i]t provides prospective guidance only and is not intended to have the force of law or confer any rights, privileges, or benefits.”

One helpful advance is the recommendation that witness interviews should be memorialized by the agent, with the specific observation that “material variances” should be memorialized and provided to the defense. Here again, the “material” qualifier invites troubling omissions and abuse. Further, the directive exempts “trial preparation meetings.” Experienced defense counsel know that these meetings with witnesses, which occur shortly before or after the commencement of trial, often produce critical and damaging new evidence. Exempting these crucial meetings from the requirement to memorialize witness interviews is not progress.

Whether the issuance of these memoranda is genuinely intended to address the discovery abuse problem, or merely to blunt reform efforts, is a subjective determination that must await further developments. What is clear, however, is that DOJ has thus far not embraced any of the reform efforts, including the proposal by Judge Emmet Sullivan, who presided over the Ted Stevens case, and the recommendation by the American College of Trial Lawyers that the constricting qualifying language in Federal Rule of Criminal Procedure 16 be eliminated and that all exculpatory evidence be produced to the defense.³ In October 2009, Assistant Attorney General Lanny A. Breuer opposed the amendment.

Considering that the Ogden memoranda are unlikely to produce tangible change, the defense bar should look beyond the narrow contours of Brady and pursue the ethics route to obtain discovery. And reformers, such as NACDL, will heed Irwin Schwartz’s advice and seek a legislative remedy.

Notes

1. The three memoranda are entitled: (1) “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group”; (2) “Requirement for Office Discovery Policies in Criminal Matters”; and (3) “Guidance for Prosecutors Regarding Criminal Discovery.” The memoranda are available at http://www.justice.gov/dag/discovery-guidance.html. 
2. Section 9-5.001 of the U.S. Attorneys’ Manual addresses the prosecutor’s constitutional duty to disclose material exculpatory and impeachment evidence. The manual encourages disclosure beyond the bare constitutional requirement. But, in the case of exculpatory evidence, the prosecutor need not disclose the information unless it is inconsistent with an element of the crime charged or establishes an affirmative defense and, in the case of impeachment evidence, it need not be disclosed unless it casts “substantial doubt” upon the accuracy of the evidence relied upon to prove an element of the crime charged or the admissibility of prosecution evidence. In all cases, the determination of whether to disclose remains subject to the prosecutor’s judgment, an adversary who somehow must step out of the prosecutorial advocacy role to make a subjective determination as to what may be critical to the defense.
3. See letter from Judge Emmet Sullivan to Judge Richard Tallman (chair of Judicial Conference Advisory Committee on the Rules of Criminal Procedure), available at http://www.mainjustice.com/wp-content/uploads/2009/10/sullivanletter.pdf; see also American College of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16, 41 Am. Crim. L. Rev. 93 (2004).uploads/2009/10/sullivanletter.pdf; see also American College of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16, 41 Am. Crim. L. Rev. 93 (2004).discovery-guidance.html. 2. Section 9-5. of the U.S. Attorneys’ Manual addresses the prosecutor’s constitutional duty to disclose material exculpatory and impeachment evidence. The manual encourages disclosure beyond the bare constitutional requirement. But, in the case of exculpatory evidence, the prosecutor need not disclose the information unless it is inconsistent with an element of the crime charged or establishes an affirmative defense and, in the case of impeachment evidence, it need not be disclosed unless it casts “substantial doubt” upon the accuracy of the evidence relied upon to prove an element of the crime charged or the admissibility of prosecution evidence. In all cases, the determination of whether to disclose remains subject to the prosecutor’s judgment, an adversary who somehow must step out of the prosecutorial advocacy role to make a subjective determination as to what may be critical to the defense.3. See letter from Judge Emmet Sullivan to Judge Richard Tallman (chair of Judicial Conference Advisory Committee on the Rules of Criminal Procedure), available at uploads/2009/10/sullivanletter.pdf; see also American College of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16, 41 Am. Crim. L. Rev. 93 (2004). 

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