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We criminal defense lawyers have been trained and adopted as true that knowledge is power, and the more knowledge we have, the better. These interrelated philosophies underpin our requests, and sometimes our fights with the government, for disclosure.
These fights began early in the criminal legal system of the United States. During the administration of President Thomas Jefferson, a case was brought against Jefferson’s former Vice President Aaron Burr for treason. Apparently, allegedly plotting to form his own country was frowned upon by the government. In the course of the litigation surrounding his trials, Burr asserted his Sixth Amendment right to compulsory process to produce several letters, which Burr felt were exculpatory, that were in the possession of the Jefferson administration. Sweeping aside the attorney general’s assertions of presidential privilege, Justice John Marshall wrote that it would be “a very serious thing, if such letter should contain any information material to the defense, to withhold from the accused the power of making use of it.”{1} 1 United States v. Burr, 25 F. Cas 30 (no. 14692D) (C.C.D. Va. 1807); United States v. Burr, 25 F. Cas 187 (no. 14694) (D. Va. 1807). Although Burr’s cases implicated the Compulsory Process Clause, it is likely the first notable discovery fight between a defendant and the government.
One hundred and fifty years after Justice Marshall stated the obvious, Justice William O. Douglas wrote the Supreme Court’s Brady v. Maryland opinion. Brady held that suppressing evidence favorable to an accused who has requested it violates due process where the evidence is material to guilt or punishment irrespective of the prosecution’s good or bad faith.{2} 2 Brady v. Maryland, 373 U.S. 83, 86-88 (1963).
Problem solved, right? Not exactly. It would take another 32 years of prosecutors’ claims that lack of knowledge of such evidence excused them from disclosure before the Supreme Court put that argument to rest in a scathing indictment of the Orleans Parish District Attorney’s Office and the New Orleans Police Department in Kyles v. Whitley.{3} 3 Kyles v. Whitley, 514 U.S. 419 (1995). In addition to an extensive discussion of the meaning of “materiality,” Kyles enunciated the banal principle that the prosecutor bore the responsibility to disclose favorable evidence, upon request, regardless of the failure of law enforcement to bring such evidence to the attention of the prosecutor. In other words, the “fishing expedition” argument so often trotted out in response to discovery requests lost whatever dubious merit it had because it became a prosecutorial obligation to grab the proverbial rod and reel and come back with a laden net.
Problem solved, right? Not exactly. We are now in the era of electronic discovery and ever-increasing information dumps. This phenomenon is no longer having an effect only on defenders in complex federal white collar cases. State defenders — the majority of whom are solo practitioners or public defenders or in small firms — are increasingly being provided with responses to discovery requests that contain gigabytes, and in many cases terabytes, of information.{4} 4 A gigabyte is the equivalent of approximately 1024 megabytes or the equivalent of roughly one hour and 20 minutes of video, 16 hours of music, 678,000 pages of text messages, 100,000 pages of emails, and 15,500 images. A terabyte can contain up to 250,000 photographic images, 17,000 hours of audio files, approximately 250 Hollywood-length movies, and 6.5 million documents.
As defenders, our Sixth Amendment obligations to clients, as enunciated by Strickland v. Washington, extend to the plea process.{5} 5 Strickland v. Washington, 466 U.S. 688 (1984); Padilla v. Kentucky, 559 U.S. 356 (2010). We are equally mindful that since 2012, such obligations include competent advice regarding the strength of the government’s case in pre-plea or pretrial discussions with clients so that any decisions regarding acceptance or rejection of governmental offers can be made with such advice.{6} 6 Laffler v. Cooper, 556 U.S. 156 (2012).
The question that confronts us and likely will soon confront the courts is how to advise a client concerning the strength or weakness of the government’s case if we must first examine, digest, and organize a terabyte of information. These gargantuan electronic discovery dumps are becoming common in garden-variety drug cases involving cellphone seizures as a result of traffic stops. In many of these cases, a majority of which are prosecuted in state courts, the police arrest a defendant for distribution or trafficking-level offenses solely based upon the presence of drugs, which is a very low threshold in some jurisdictions. The information in the resultant “phone rips” can be overwhelming because most defense lawyers do not have in-house computer forensics staff. Yet we are charged with examining this information so that we do not become walking violations of our clients’ Sixth Amendment rights.
NACDL is keenly aware of the problems and has begun to develop solutions — including training, sample motions, and a guide for practitioners — to confront this problem that will be with us for the foreseeable future. An NACDL task force has been appointed and has started working to address the problems associated with electronic discovery dumps. In the meantime, Aaron Burr is still waiting.
About the Author
Christopher A. Wellborn is a founding member and past president of the South Carolina Association of Criminal Defense Lawyers. He practices in state and federal courts, representing clients facing all types of misdemeanor and felony charges, including drug charges, traffic offenses, white collar crimes, and juvenile offenses. Wellborn is sought after nationwide for his experience with unwarranted charges of shaken baby syndrome and child abuse.
Christopher A. Wellborn (NACDL Life Member)
Christopher Wellborn PA
Rock Hill, South Carolina
803-366-1065
cawlaw@comporium.net
www.wellbornlawfirm.com
