Washington, DC (December 22, 2014) – On December 18, Judge Colleen Kollar-Kotelly in the U.S. District Court for the District of Columbia issued a decision in National Association of Criminal Defense Lawyers v. Executive Office for United States Attorneys et al. The Court upheld 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. NACDL plans to appeal this decision granting Defendants’ motion for summary judgment, and denying Plaintiff’s cross-motion for summary judgment.
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, DOJ’s Office of Legal Education published, but has not made available to the public, a text referred to as the Federal Criminal Discovery Blue Book. 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. As set forth in NACDL’s latest 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, the problem of non-disclosure and late disclosure in criminal cases is significant; in addition to legislation codifying prosecutors’ Brady obligations, the report calls for courts to do more to address this issue.
As set forth in NACDL’s Complaint filed February 21, 2014, 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, suggested that “it was prepared to ‘protect [ ] agency clients from the possibility of future litigation[.]’”
NACDL President Theodore Simon said: “It is deeply troubling that the Department of Justice endeavored to thwart legislation in Congress to codify prosecutors’ disclosure obligations by representing that the problem had been rectified by a Federal Criminal Discovery Blue Book it had prepared, but now asserts is secret. And last week, a federal court has indicated that that very text appears to be a document prepared to protect the government from future litigation. The problem of nondisclosure and late disclosure in criminal cases is one of a Constitutional dimension – it speaks directly to the right to due process under the law. Fairness and transparency demand the release to the American people of the contents of a document the Department of Justice told Congress was intended to protect and preserve the public’s right to due process.”
NACDL Executive Director Norman L. Reimer said: “We have not seen the Blue Book. All the public can do is rely upon what the Department of Justice told Congress, and that is at odds with DOJ’s description of the Blue Book in this case and ultimately the Court’s ruling.”
NACDL is represented in this matter by Kerri L. Ruttenberg, a partner in the Washington, DC office of the Jones Day law firm.
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