A Forrest Gump solution to the “epidemic” of Brady violations and other similar horrors

Forrest famously said: "Stupid is as stupid does."

Forrest Gump famously said: “Stupid is as stupid does.”

 

As you can tell, I am simple-minded just like Mr. Gump. So, here’s an idea from a dolt. Prosecutors shouldn’t hide shit.

More specifically, why don’t federal prosecutors adopt an informal “open file” discovery practice for most matters, particularly run of the mill drug cases and the like. Screw Federal Rule of Criminal Procedure 16 and the Jencks Act.

Invite defense counsel to come to your office, offer them a beer and give them your file for review including all the witness interviews and proffer statements. Let them copy what they want subject to whatever restriction you have to impose to protect the physical safety of witnesses. Do this early on and make a record of what you are doing (except for the beer).

Why is this a bad idea?

RGK

27 responses

  1. What if you don’t want the defense attorney to know your case sucks before the plea offer expires?

  2. Aren’t you dead like yeast yet?

    If you have any “guilt” rise up.

    P.S. you ever need some sour dough starter let me know.
    Huff and puff all you want otherwise…

    Boooo000k!

  3. But then the prosecutor runs the risk that some shyster New Yorker who took six tries to pass the bar and has never done a trial will make a fool out of him during a big murder trial in front of his small Southern town. Or something.

  4. RGK,
    What about criminal background check information? Prosecutors can’t disclose NCIC info without a court order.

  5. It is a great idea. When I served as a naval judge advocate, we always had access to the Government’s file. In fact, they would make a copy and deliver same. No need to hide the ball.

  6. Well, Judge, here’s a couple things to chew on both for this post and the earlier one seeking comment on federal prosecutors.

    First things first. In general I agree with you that prosecutors are trustworthy and honorable, and probably federal prosecutors more than state. But there are caveats.

    One very important distinction that has been lost in the Brady morass is between deliberate, intentional conduct; and, say, reckless or negligent or inadvertent conduct. A Brady violation can occur with the latter three and may or may not be a due process problem. But the former two are really a Mooney problem (294 US 103)(1935) and that’s ALWAYS a fatal due process problem.

    This is a system wide misunderstanding that afflicts even the defense bar, but in fairness it originated with arguments made by prosecutors and they bear the major responsibility for it.

    Another caveat pertaining specifically to federal prosecutors that I’ve run across, unfortunately, is this idea that due process does not apply to Grand Jury proceedings, and so if you deliberately use perjury to get an indictment you haven’t violated anyone’s rights. Not until you use perjury at a trial. The implication being that if you get someone indicted on fabricated evidence and terrorize them into a plea, well, you shouldn’t do that but you haven’t violated anyone’s rights.

    This was the position taken in the Anti-Trust Division’s Grand Jury training manual of the Department of Justice beginning in 1991. It’s a very serious misstatement of the law, and obviously self-serving coming from prosecutors.

    I’ve had occasion to point this out to higher ups at the DoJ. Their response, so far as I know, has not been to correct 20+ years of serious misinformation, but rather to remove that Grand Jury Manual from their official webpage.

    This does not seem like an adequate response to me. A forthright acknowledgement of the problem would be more in keeping with what we expect of prosecutors, or at least what you would expect of them given your opinions.

    In any case it’s difficult not to regard this as a chink in the federal prosecutorial armor, but I’d be interested to know if you disagree.

  7. What you suggest is similar to our Michael Morton Act in Texas. It was passed after Morton spent about 25 years in prison for murdering his wife after the state concealed exculpatory evidence. Basically, we get all of the offense reports and witness statements and lab reports just by asking.
    It’s working pretty well in Texas.
    But I wish they would give us the beer along with our copies of the documents.
    By the way, in courts martial the derfense gets a copy of everything in the prosecutor’s file but his personal work product. And, military prosecutors don’t seem to have much of a problem getting convictions even with full discovery.

  8. Do you offer a beer to mostly everyone who visits your chambers? So, you keep your refrigerator well-stocked?

  9. 1) these proposals always seem to me to be premised on the erroneous assumption that there’s som kind of unitary case file that’s going to contain all the relevant information. Maybe the key report is in a DEA file, but not the prosecutor’s file. (This can happen because a disk was accidentally not copied, though dozens of others were.). Maybe it’s in the file of an agency/police department that was less directly involved in the investigation (such as doing surveillance on just one day). Maybe it’s in the file for another investigation entirely (there’s lots of overlap, since criminals tend to deal with each other.). Lots of Brady work for prosecutors involves figuring out what’s out there and how to get it.

    2). These proposals also underestimate the amount of time prosecutors legitimately have to spend figuring out whether particular documents need to be redacted. Perhaps the document mentions an unrelated wiretap. (Disclosure without a court order could be a felony.). Perhaps it would tip the defendant off to an impending search warrant. Or perhaps it would endanger the life of a witness, or informant, or just the good citizen who called 911. Just as most defense lawyers have experienced prosecutors who didn’t play fair, most prosecutors have experienced defense lawyers who convinced witnesses to evade service, or who facilitated bribes, or who aided their clients in witness intimidation and worse. (Consider, for instance, the prominent Bay Area defense lawyer recently suspended for forwarding her client’s hit-list; or the NJ lawyer convicted of witness killings; or the recent Washington Post article detailing how an FBI report on an informant proffer, turned over to defense counsel under a confidentiality agreement, was soon posted on telephone poles around town; or the LA lawyer (and former FPD intern) recently sentenced for being a Mexican Mafia messenger.). The number of actual disbarments/prosecutions probably vastly understates the amount of similar misconduct– just as the amount of prosecutorial misconduct exceeds the number of times it’s caught. The key point is that prosecutors have to think darn hard about what’s in the file, who they’re dealing with, and who needs protection. Brady still needs to be turned over — but letting someone root through the wrong file could have tragic results.

    4). Finally, given the structure of criminal discovery, it might make sense for prosecutors to use non-Brady disclosures as leverage to get reciprocal defense disclosures. Defense lawyers like to point out how much less discovery they get than civil parties. But the bigger imbalance is in how little prosecutors get. If the defense isn’t using expert evidence and doesn’t have a document-heavy case-in-chief, then the defense doesn’t have to give over anything at all. The whole defense theory of the case may be a mystery until opening statements. (Indeed, in some jurisdictions (e.g., Ninth Circuit) the defense can even get away with not disclosing expert evidence until practically the day of the testimony — under an interpretation holding that exclusion violates the right to prepare a defense.). those defense rights allow defendants to mount a strong defense — but they also allow a lot of perjurious testimony and misleading evidence to go unrebutted — the prosecutor’s main tool for leveling the disclosure playing field is to say that she’ll let the defense have early access to the prosecutor’s non-Brady Jencks material (Brady material, of course, requiring disclosure regardless) if the defense reciprocates. To give up this bargaining chip leaves the prosecutor (and court/jury) at the mercy of even more suddenly sprung and potentially false evidence.

  10. Grerat idea, RGH.

    And if you (and the Ninth Circuit) read the entire record in the Baca v. Adams case you (and the Ninth Circuit) woud have learned that is exactly what the trial prosecutor did: He had an “open file” policy.

    Defense counsel examined the trial prosecutor’s file and the file of the prosecutor-witness (who is being falsely accused of having committed perjury) before the trial commenced. Unfortunately, the prosecutor-witness’s file didn’t contain a transcript (that reflected why the informant-witness’s sentence was reduced). So the trial prosecutor (who hadn’t seen or read that transcript, but was relying on the prosecutor-witness to provide the jury with accurate information regarding the sentence reduction) asked defense counsel if he wanted to continue the trial so that the transcript could be obtained. Defense counsel said “no.” And, as the 113-page transcript of the evidentiary hearing in federal court reveals, there was a reason that he said “no”: He HAD the transcript! He had it for at least two years before the trial commenced! He never told the trial prosecutor that he had the transcript! And he decided not to cross-examine the prosecutor-witness or the informant-witness with any of the information in the transcript, because he correctly believed that if he brought out the purported fact that the informant-witness’s sentence was reduced (by three years) by his sentencing judge to reward him for having testified at Baca’s first trial (not because of a miscalculation of sentencing credits, as mistakenly testified to by the prosecutor-witness) it would have HURT Baca’s defense.

    So all of this internet chatter nonsense (including, unfortunately, that being fostered on your blog) about perjuring prosecutor-witness’s and trial prosecutor’s suborning perjury is just that: Absolute nonsense.

    But once the anti-prosecutor crowd gets on their bandwaggon and makes up their mind about the narrative that they want to believe, all the facts in the world won’t change their perception. One would have thought that your mind was more objective, more inquisitive, more interested in an accurate determination of the facts. One would have thought that you would have done your homework before sullying the hard-earned reputations of well-respected prosecutors. One, obviously and sadly, would have been wrong.

    Be well.

  11. Dear Former Prosecutor,

    Thanks for your very helpful and detailed critique of my proposal. Perhaps you see now why I associate myself with Mr. Gump.

    Anyway, here are several thoughts:

    1. I understand that there is no unitary file. But, whatever the “file” may be, it will ultimately have to be reviewed by the prosecutor. Thus, I don’t see an undue burden on the prosecutor showing defense counsel what the prosecutor has already reviewed.

    2. Yes, a prosecutor must be careful not to allow harm to come to a witness through the discovery process or disclose unrelated investigative material. But, again the prosecutor is going to have to review the “file” anyway, and redactions to address those concerns do not seem all that onerous to me. I have also found that agreed upon protective orders can address most of these problems.

    3. I appreciate that we judges do not strictly enforce Rule 16 against defense counsel. That is a real problem. That said, the remedy is not keeping the prosecutor’s file closed, but the remedy should be insisting that defense counsel abide by their reciprocal discovery obligations. For example: A few times, I have told the jury that the reason for a delay (when I gave the prosecutor time to prepare to meet some goofy “suprise”) was defense counsel’s failure to play by the rules.

    Again, thank you for your engagement. I appreciate it very much.

    RGK

  12. Jonathan,

    Only for those who I like (meaning those who make my life easier) do I offer beer. The rest get water, if they are lucky.

    All the best.

    RGK

  13. Likewise, Judge K., thank you for your thoughtful response.

    My practice was always, in essence, to give over everything– starting with what was easiest to assemble, then supplementing as I got more from the agencies, made redactions (which could take scores of hours, incidentally — some cases have huge volume), got protective orders for sensitive material, got a reciprocal Jencks agreement in place, etc. But that was an iterative process — I wouldn’t have had a definitive file early on. And I wouldn’t necessarily have a “file” for the other side to look at. (When I traveled to look at a local agency’s CI file, I wouldn’t necessarily be allowed to make copies. And if the documents needed to be redacted, I couldn’t let my opponent see the originals.)

    As for the reciprocation point, I’m not sure your answer really addresses it. Let’s put aside Rule 16 for a minute. My opponent could have a 6-page letter from the main defense witness. He doesn’t have to give it to me until after the witness testifies. So why shouldn’t I use the limited leverage I have to get him agree to reciprocal Jencks exchange a few weeks before trial — an agreement that will never happen if I give him all my Jencks gratis before then? If I’m going to do that, then I’d better make darn sure I’ve disclosed any Brady material. But once I’ve already given over all of that substantively, why let him have the extra assistance that allows him to look extra-good when he will, with no agreement, (rightly) give me nothing in return?

  14. Since 1985 all files in Lancaster County, NE have been open for copying by defense counsel. State prosecutors have nothing to hide. Reciprocal discovery is routinely granted. But only rarely was it provided.

  15. Former Prosecutor,

    On the Jencks Act stuff, I agree that should be reciprocal. Pick a date and do an exchange.

    I also agree that there is nothing wrong with serial “show and tell” sessions. That makes sense.

    All the best.

    RGK

  16. Judge:
    Many years ago when I was a trial attorney in Family Court I stunned the attorneys for the opposition whenever they would routinely inquire about making a motion or a demand to see my file. My response? Forget the papers. Come down to my office at lunchtime. I’ll have the file there and, after I redact what I have to redact, you can copy anything you want. The result was that I got to know the members of the defense bar, they got to know me and (hopefully) they came to realize that I was not about to play games. In our business, as in most businesses, one’s reputation is the coin of the realm. This was just one way to establish that.
    Robert

  17. Book!…book’… Boo0o0o0o00oooook.

    You have been busy.

    There is more that I don’t like about you than my rambling drunk-erd retorts
    give credence too.

    BUT!

    You can and hopefully will pass on a hard-drive or two if you carry on.

    Your venture, is not this venture alone, both are needing a reflection explanation mark.

    Not that I know what you need. Although I might.

    Books are still fun.

    Next time around you just might be dead.

    Cheers… and sincerely you put flag out there.

    Thank you.

    If those behind us keep up with a thousand miles behind it might work out.

    Still a lot to be done…

    Peace and Enjoy,

  18. Pingback: The Rationale For Concealment | Simple Justice

  19. John Barleycorn,

    You write: “There is more that I don’t like about you than my rambling drunk-erd retorts give credence too.”

    Somehow, I knew that. Strangely, that makes me sad.

    All the best.

    RGK

  20. Dear Anon.,

    I have known each of the elected County Attorney’s of Lancaster County, Nebraska dating back to Paul Douglas. My impression has always been that those men were prosecutors who turned square corners when it came to trying criminal cases. That “open file” discovery has been the norm since 1985 in Lancaster County is proof of that point. Thanks for making the point.

    All the best.

    RGK

  21. In my state, most prosecutors have open file policies (with limited exceptions for work product and NCIC printouts). Statewide, our Brady problems have fallen into four categories: 1) failure to adequately document disclosure (with the resultant problems of proving disclosure of a specific item when a Brady claim is raised 10-15 years later); 2) failure of a police report generated after the initial charging decision to make it to the file (not surprisingly, a more frequent problems in multiple defendant cases); 3) ambiguities in the initial reports description of evidence; and 4) the failure to recognize the Brady implications of certain things (e.g. prosecutor meetings with victims/witnesses in which some minor piece of new information comes up, victim impact letters). The first problem is easy to resolve going forward (one practice recommended is to bates stamp every paper document and file a disclosure document in court indicating which pages and physical items (e.g. DVD) have been disclosed. The other problems are harder to fix, particularly in cases involving multiple agencies.

  22. Even with reciprocity, defense counsel will not play ball. My state has broad discovery rules with reciprocity. Defense counsels uniformly evade their responsibility to disclose witness statements by: 1) not putting the witness statement in writing (or getting a written report from their expert); and 2) narrowly reading the obligation to disclose the statements of witnesses that they intend to use by claiming that they did not decide that they intended to use the witness until just before trial (where the State has the obligation to disclose within ten days of receipt).

  23. You might need some help with the “inflections” on this field of banter that you have diligently, proudly, and worthily fielded!

    If I were your neighbor…., I would have plenty to say about you to my wife. Plenty more to keep learning and sharing with you in my garage and yours…..and would have had many a meal with you and yours that would have brought more that smiles and soul shine, guaranteed.

    Get over yourself and “Carry ON!”.

    Fuck You for some of your closest held beliefs and actions.

    Not a damned thing to with being sad.

    Mi casa su casa…

    Sincere love my digital friend, don’t be sad… you might be surprised who will carry your water when need be “old” man…

    Keep on keeping on!

    Core respect even if you are a little short within your bubble.

    P.S. Last time I checked you were are still a federal judge. Keep on keeping your guild in check! Your peers without doubt as far as they may listen and converse, and those that take the well before you especially with an OPEN ear and honest reflection to the merits,

    Cheers!

    I have meet a few Dylan fans of your gentle fears and years that have completely missed this guy! I hope you have cherished being on both sides of this coin. Life is good.. “Neighbor”

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