Washington, DC (July 25, 2016) – On July 19, a three-judge panel of the U.S. Court of Appeals for the DC Circuit – Circuit Judge Srinivasan and Senior Circuit Judges Sentelle and Edwards – issued its decision in National Association of Criminal Defense Lawyers v. U.S. Department of Justice Executive Office for United States Attorneys and U.S. Department of Justice. The decision upheld the lower court's and the U.S. Department of Justice's (DOJ) denial of NACDL's Freedom of Information Act request that DOJ release to the public its Federal Criminal Discovery Blue Book, finding that the Blue Book is attorney work product that was prepared to protect DOJ from litigation and therefore it is protected from disclosure.
The DOJ's Office of Legal Education has published, but has not made available to the public, a text referred to as the Federal Criminal Discovery Blue Book in response to public furor over the "egregious misconduct" by DOJ prosecutors in the case of the late Senator Ted Stevens, whose conviction was vacated after post-trial investigations revealed that prosecutors had withheld significant exculpatory evidence from the defense. Despite obvious public interest in ensuring that DOJ had taken adequate measures to prevent further abuses, DOJ steadfastly refused to make the Federal Criminal Discovery Blue Book public.
In last week's appellate decision, Circuit Judge Srinivasan wrote that "…the Blue Book is entirely about the conduct of litigation. It is aimed directly for use in (and will inevitably be used in) litigating cases. Its disclosure therefore risks revealing DOJ's litigation strategies and legal theories regardless of whether it was prepared with a specific claim in mind." In a separate concurrence joined by Senior Circuit Judge Edwards, Senior Circuit Judge Sentelle wrote:
I concur in the decision of the majority, not because I believe it to be the correct result, but because I am compelled to do so by precedent….The purpose of the Freedom of Information Act is to serve "the citizens' right to be informed about what their government is up to." [citation omitted.] There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people…. It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. In short, I join the judgment of the majority, not because I want to, but because I have to.
NACDL's report Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School, exposes the problem of non-disclosure and late disclosure in criminal cases as significant; in addition to legislation codifying prosecutors' Brady obligations, the report calls for courts to do more to address this issue.
NACDL President E.G. "Gerry" Morris said: "The Department of Justice told Congress it did not need to enact legislation to protect the American people from discovery abuse by federal prosecutors. They told Congress that the Department's new Criminal Discovery Blue Book 'comprehensively covers' the law, policy and practice of prosecutors' disclosure obligations. Ever since, though, the DOJ has been fighting tooth and nail to keep its handbook on disclosure a secret from the American people it's supposed to protect. NACDL most certainly intends to seek a rehearing en banc in this case."
As set forth in the Complaint filed on February 21, 2014, in the U.S. District Court for the District of Columbia, during a series of congressional hearings concerning prosecutorial misconduct in Sen. Stevens' case:
…DOJ asserted that federal legislation was unnecessary to prevent future discovery abuses because it had instituted various internal reforms. During the hearings, DOJ asserted it had implemented "rigorous enhanced training" to ensure that "prosecutors and agents [have] a full appreciation of their responsibilities" under federal law. Statement for the Record from the Department of Justice: Hearing on the Special Counsel's Report Before on the Prosecution of Senator Ted Stevens Before the S. Comm. on the Judiciary, 112th Cong. 3 (2012) ("Statement for the Record"). As part of this effort, DOJ stated that it had created a "Federal Criminal Discovery Bluebook" that "comprehensively covers the law, policy, and practice of prosecutors' disclosure obligations" under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Id. at 4. According to DOJ, the Blue Book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal." Id.
Contrary to what DOJ told Congress, the ruling and DOJ pleadings suggest that the Federal Criminal Discovery Blue Book contains strategies for avoiding discovery. Indeed, the Court, which, unlike Congress, reviewed the text, said that its "in camera review of the Blue Book confirms that the [DOJ] affidavits accurately describe the Book and its contents[,]" and therefore it qualifies for the work-product privilege.
NACDL is represented in this matter by Kerri L. Ruttenberg, a partner in the Washington, DC, office of the Jones Day law firm, as well as her associates Yaakov M. Roth and Julia Fong Sheketoff, also of Jones Day.
NACDL was supported in this appeal by three amicus curiae. Friend-of-the-court briefs were filed by (i) 63 law professors from across the nation, (ii) the Constitution Project and the Innocence Project, and (iii) the American Civil Liberties Union (ACLU), ACLU of the Nation's Capital, and the Electronic Frontier Foundation (EFF).
Additional court papers, including briefs, exhibits, and the decision below, among others, are available at: https://www.nacdl.org/BlueBookFOIALitigation/.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or email@example.com for more information.
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.