My earlier post about Chief Judge Kozinsky and Brady violations generated a fair amount of comment. I will use this post to give my two cents worth about Brady in the federal court.
If Chief Judge K. believes there is an epidemic of Brady violations, I cannot dispute his assertion because I don’t have his much broader perspective as Chief Judge of the Ninth Circuit. As a district judge, and one who relies on our tough and excellent magistrate judges to handle pretrial motion practice, I see only a tiny slice of the issue. Moreover, where I hang out, the federal prosecutors are, by and large, quite careful, or so it seems to me. The disease that Chief Judge K. worries about does not seem to present, at least in epidemic proportions, in the District of Nebraska where we typically rank in the top 10 when it comes to criminal cases per judge.
But, I will say this:
Back when I was a Magistrate Judge between 1987 and 1992, many federal prosecutors followed an “open file” policy. That is, the defense lawyer got access to the complete investigative file–everything the prosecutor had–except for legal research and the prosecutor’s outgoing correspondence. The defense lawyer was able to copy whatever the lawyer wanted. That seems sensible to me. Indeed, I would be inclined to change the Federal Rules of Criminal Procedure to require prosecutors to open their investigative files. Oh, sure, there are problems with witness intimidation or retaliation in prison and that sort of stuff. But, those problems can be dealt with. More importantly, I want snitches scared–fear serves as an antidote to lies and exaggeration (think drug quantity, for example).
So, if I were the King (and I should be), prosecutors would be required to show their investigative files to defense lawyers and allow those lawyers to copy whatever they wanted. A rule requiring complete transparency would go a long away to disinfecting the germs that Chief Judge K. sees as the genesis of the plague. But, what the hell do I know?