My take on Brady violations in federal court

Image credit: Pam's Clipart pursuant to license per site.

Image credit: Pam’s Clipart pursuant to license.

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?


8 responses

  1. Not to be unappreciative of your post, but perhaps you could express your thoughts about the issue in districts where open file discovery is not the norm. Indeed, in most of the districts where I practice, not only do we not get open file discovery, but the government will fight vehemently to not be compelled to provide an iota more than Rule 16 demands, and then at the absolute last possible moment.

    While there are issues with open file discovery as well (such as Brady never making its way from the agents to the AUSA’s file), it would be very interesting to hear your views when the problems of disclosure are far more basic.

  2. Where there are mousetraps, mice or men will innovate, finding more creative ways to catch the unwary or avoid detection. More law enforcement agents who see the whole gamut, 256 to 32 bits, present the best hope. Prosecutors without their eyes on the prize the second best. And working magistrates, satisfied to remain on the lower floors, and judges who likewise feel the same way, the third. Of course, it helps to have a defense attorney who reads the file and knows the difference between words on a page that satisfied the statue or court rule and ones carefully designed to satisfy it. So, to those of you who believe in meeting deadlines and having documents promptly prepared and filed, rewarding those who look freshest and polished, as opposed to those who look haggard and torn, I suggest this pity statememt: the early bird catches the worm; the second mouse gets the cheese. See what’s happens when the first file comes in and ask for the notes and deleted copies.

  3. SHG,

    In answer to your question, one of the measures that might be adopted by federal trial judges throughout the nation is to adopt a uniform process for the referral of any violation of Brady to DOJ’s Office of Professional Responsibility. While I cannot go into detail because the matter is pending, I know from very recent experience that such referrals scare the living shit out of federal prosecutors. Any judge can trigger a mandatory referral by simply stating in an order the nature of the violation and demanding that the prosecutor’s behavior be subjected to an OPR investigation. Such an order might read like this,

    “The Court having found a violation of the requirement of Brady v. Maryland due to the nondisclosure of X by prosecutor Y, the United States Attorney for the District of Nebraska and AUSA Y are ordered to report this violation to the Department of Justice’s Office of Professional Responsibility. The results of the investigation shall in turn be made available to the undersigned and the Chief Judge of this court by the United States Attorney and further action, including disbarment of AUSA Y. from the practice of law in this court, may ensue.”

    For now, this is the best that I can do. I hope this responsive.

    All the best.


  4. Copying and pasting some of what I wrote on another case, there’s a problem with the open-file policy, Judge Kopf, and that’s that the Brady has to get in the file. Part of the problem has less to do with the AUSAs and more with law enforcement. I think the 2009-present period, with its many public Brady violations, such as Sen. Ted Stevens’s case and the unfortunate passing of Nick Marsh, have made prosecutors hyper-aware of Brady. On the other hand, law enforcement agents are less aware. Even if we want to say federal LEOs are more aware, and I’m not sure that we do, plenty of cases begin with State LEOs, who varying from jurisdiction to jurisdiction, may have an even lesser understand of Brady/Giglio. If the AUSA never has the Brady, then they can’t disclose it.

    Of course, the Prosecutor’s response to the open-file policy is 1) there was never an open file, and 2) an open-file policy might reveal things far in advance of trial that jeopardizes witness security. As to one, there never really was an open file, because prosecutors segregated work product and attorney-client privileged information out of the “open-file.” That might be where the Brady is. The problem with the “open-file” policy from the Prosecutors’ perspective is that by calling something an “open-file” you are disclaiming that anything else relevant possibly exists anywhere (that is not privileged). And frankly, in a large case, and with the problems with law enforcement I outline above, I would not make that claim. I’m simply too worried that there exists something, that I don’t know about, outside my “open-file,” and by making the “open-file” claim, I have implicitly told the defense attorney that they are seeing everything that exists.

    Secondly, there are real equitable concerns from Prosecutors about witness protection. Particularly in the realm of gang cases, cases with CIs, etc., etc., an early disclosure of witness identity before your court-mandated deadline (but to meet your discovery deadline) might have a Prosecutor see their witnesses suddenly become unavailable.

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  7. Jeff,

    I appreciate your perspective. I am also happy to acknowledge that an “open file” policy is not a perfect solution.

    As for stuff getting from law enforcement to the prosecutor, we don’t have time to discuss this fully and, frankly, in large jurisdictions I am not sufficiently experienced with dealing with huge police operations to weigh in. However, at the federal level, FBI agents and other federal lawmen can be trained to comply, and things like OPR referrals can provide strong incentives to comply.

    As for witness intimidation, I also agree that an open file is going to make that problem worse at least to the degree it speeds up disclosure. But, since disclosure will occur at some time and in any event, an open file policy does not seem to impose such significant additional difficulties that the open file policy should be rejected.

    In short, I realize that an open file policy creates problems for prosecutors and that is it is imperfect. But (1) it is easy to comply with and (2) in many cases it will get the job done more fully than currently.

    All the best.


  8. Judge Kopf,

    I appreciate you taking the time to respond to my comments.

    I would make one or two brief points in response:

    1. You are correct that the OPR referral scares the bejesus out of prosecutors. And of course, Federal law enforcement can be trained to follow Brady. I am not so sure, however, that OPR referrals scare the bejusus out of law enforcement. I admit total ignorance as what disciplinary procedures occur, if any, to FBI/other federal/state law enforcements agents who fail to turn over Brady to the prosecutors. Is it a slap on the wrist? A letter of reprimand? Suspension without pay? I have no idea.

    2. For an example as to the state problems, let me sketch a hypothetical. You have a witness testifying for the government who has been in trouble with the law before. Let’s say 20+ prior state charges. Let’s your fed agent/agency has a relationship with the various state agencies who are responsible for some number of the arrests. Now imagine that on one of those prior charges, my witness pled, but when he was arrested, he waived Miranda, and gave a statement, lying through his teeth about all his involvement. Eventually he pled and came clean as to his involvement.

    Chances are, this plays out this way: the prosecutor asks the FBI agent to run NCIC on the witness and produces a rap sheet, which is turned over to the defense. No information is turned over about the prior lies.

    Now, if I’m a defense attorney, and I somehow learn about that prior lie, I think I’d have a decent case for a Brady violation., I don’t know that I’d be wrong to think that such a witness’s prior lie at arrest goes to his credibility as a testifying witness. I don’t think I’d be wrong to say that if the FBI and the State agency generally worked together, and maybe worked together on my case, that the State agency was part of the “prosecution team.” Moreover, that State agency could probably have dug around, and found some 10 year old police report of this witness lying through his teeth, and given it to the FBI, who could have given it to the AUSA, who gives it to defense counsel.


    I think the above scenario probably happens every day in federal courts across the country. Is it a Brady violation? Probably not, since it’s doubtful that it’s creates a sufficient probability of a different result, but I imagine a lot of defense attorneys may disagree, especially if the cooperating witness was integral to the conviction.

    Thank you again for your response.


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