At Hercules and the Umpire, the Honorable Forest Gump offered a modest proposal:
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.
Rule 16 is so limited as to be nearly worthless in terms of discovery, and Jencks Act (a/k/a 3500 material) comes too late to be of any use. A kindly prosecutor (autocorrect keeps wanting to change “kindly” to “kinky.” I don’t know why.) will turn it over just in advance of trial. A less kindly one will provide it after the government’s witness has testified, right before cross, because that’s when defense counsel has plenty of time to wade through 11,000 pages of disclosure. Surely the defense can conduct an adequate investigation over lunch.
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?
First, what type of beer. I mean, are we talking PBR or something non-hipsterish good? A bit more seriously, many prosecutors’ offices, particularly in Texas under the Michael Morton Act, provide what is essentially open file discovery. The notion is, if they have the goods, why not show them? Why conceal evidence that proves what the government says? Why not give the defense open access and eliminate Brady violations from the start?
Some do, and have no beef with it. Yet, some replies to Judge Grump’s question, “why is this a bad idea?,” give away the problem.
A commenter, ominously named “Former Prosecutor,” offers a lengthy critique of the idea.
1) these proposals always seem to me to be premised on the erroneous assumption that there’s som [sic] 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.
This is a curiously benign explanation, in that it oozes of the difficulties for a prosecutor to gather together the various files of the potentially many players in an investigation. Aside from the fact that few cases involve more than an agency or two, so what? It’s hard work to put them together? Accidents happen? Sucks to be you.
You want to put a guy in prison for the next few decades, and your concern is that it’s lots of work for you? You want to convict but can’t be bothered to look through all the evidence, all the files? What if there’s evidence in a file that completely exculpates a defendant, but you haven’t bothered to find it? Oopsie?
2). These proposals also underestimate the amount of time prosecutors legitimately have to spend figuring out whether particular documents need to be redacted.
Dear Defendant: We considered providing you with discovery such that you would have a level playing field, but the redactatron was broken that day, and well, tough nuggies. If you have too much work that you can’t perform it properly, tell your agents to stop creating new, massive cases until you’re capable of handling the ones on your plate. Don’t blame the defendant, as he’s not forcing you to prosecute too many people.
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.
Because the prosecution doesn’t have enough leverage already? Let’s get real. The defense usually has nothing to disclose, regardless of anything else. This may come as a surprise, but they don’t let the defense do wires of federal agents, which might really shake things up a bit. More importantly, the defense doesn’t exist until we know what the prosecution is. It’s a cause and effect thing.
The burden is on the prosecution, and only after the prosecution puts on its case do we have something to counter. Often, we have nothing regardless, so there’s nothing to disclose. But even if we have a defense case to put on, we’re never sure what it is or how it will be structured until the prosecution rests. You get to pick the prosecution; don’t complain that you can’t find out our response until after you make your case. That’s how cause and effect works.
But no one bothered to respond with the real reasons, the nasty ones.
1. If the prosecution provides open file discovery, they lose the advantage of trial by ambush.
2. Prosecutors believe that defense lawyers, if they’re aware of the evidence against their client, will manufacture and fabricate evidence and testimony to counteract it.
Dirty defense lawyers. That explains why it’s nearly impossible to get a conviction in jurisdictions with open file discovery, right? Which, of course, is utter nonsense. Sure. some defense lawyers play dirty.
But then, so do some prosecutors, except when that issue is raised, they scream foul again, because they’re pure as the driven snow. It’s not like any defendant has ever been exonerated for a Brady violation 20 or 30 years later.