The (kinda) Rules of the Prosecutors’ Game

Are there no rules?  It might seem that way, given how federal prosecutors handle their discovery obligations. Some prefer to bury you in 187 bankers’ boxes of junk, while others think the number 16 in the Rule refers to the total number of pages they’re required to disclose.

But Brad Heath at USA Today proves otherwise.

WASHINGTON – Five years ago, after a major corruption case imploded because federal prosecutors had improperly concealed evidence, the U.S. Justice Department ordered its lawyers to start turning over more information to criminal defense lawyers. But the rules for what prosecutors must share and when remained almost entirely secret, until now.

USA TODAY obtained copies of the department’s internal guidelines under the Freedom of Information Act and is publishing them here.

Of course, some of the word choices here require special federal prosecutor explanations.  First, there is the “more information” piece, which means that if they gave you one page before, “more” means a page plus a few lines spilling over onto the next page.  More is relative.

The second is “the rules for what prosecutors must share.”  There are rules, but only in the loosest sense of the word. More like guidelines. Guidelines that no one oversees.  Guidelines that can be ignored at will. Maybe not even guidelines, but aspirations. And then only when the spirit moves them.

“I think these policies are actually the right policies,” said Timothy O’Toole, one of the chairmen of a National Association of Criminal Defense Lawyers panel that has been pushing Congress to enact similar measures. “The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.”

Without knowing what the rules are, it’s impossible to know whether prosecutors are following them, he said.

This is a rather confusing statement, on pretty much every level. How can “these policies” be “actually” anything, considering that every federal district gets to make up its own.  Sure, there’s Rule 16, Brady, Giglio, Jencks Act, but the government isn’t bound by law, because if it was, it wouldn’t need to make up ancillary rules of its own about when and if it feels like complying with the law.

So are these “the right policies”?  That’s a trick question, because it really doesn’t matter.  As plainly written in the EDNY policy, just in case some worm disclosed them to a defense lawyer:

It does not place any limitation on otherwise lawful litigative prerogatives, nor is it intended to have the force of law or a Department of Justice directive.

Translated from the original government-speak, this means they should comply with the internal policy for disclosure unless they decide not to, and nobody can make them.  They are not rules in the sense that the defense can rely upon them or a court can enforce them. They’re just there, just in case.

Even so, the government stonewalled on releasing its rules.

Justice Department spokeswoman Emily Pierce said the department made some of that guidance public in 2009; after that, “U.S. attorneys were given discretion on formulating their own offices’ guidance as well as the discretion on whether to make that guidance public,” she said.

And most United States Attorneys’ offices exercised that discretion by saying, “no, no, no, not a chance, no,” when asked to release their rules.

Several of the policies it did provide are marked as attorney work product, or as privileged attorney-client communications. The guide prepared for the federal prosecutors in Washington cautions that it contains “confidential and law enforcement sensitive material.”

Why is it confidential?  Well, that’s hard to say, since no one can see it. But if the government says so, don’t you trust it?  And then there’s the “blue book,” a more comprehensive manual prepared by the government.

After NACDL sued to obtain a copy, the attorney in charge of coordinating the department’s discovery rules, Andrew Goldsmith, warned in a court filing last year that releasing the manual would give defense lawyers “unfair – and potentially dangerous – insight into the prosecution’s approach to discovery.” A federal judge in Washington agreed, and said the government could keep the manual secret.

Just so we’re clear, the argument is that it would be “unfair” for the defense to know that the government is fulfilling its legal duties under Rule 16, Brady, Giglio and Jencks Act.  This is almost a non sequitur, reminiscent of the government’s perpetual argument that the government would be prejudiced if it was required to reveal the truth to the defense, because then the defense would know the evidence it faced and could prepare for trial. And as always, the judge bought it.

For those of you counting, these are the same feds as the ones whose report on Darren Wilson’s innocence and virginity you’ve accepted as gospel. Because they’re so trustworthy.

Despite all of this, Brad was able to pry the government’s sticky little fingers off many districts’ disclosure policy, and lists and links them to pdfs that can be downloaded for future reference.  It’s a major coup that he got them, but even so, one needs to seriously consider the efficacy of the whole idea given that nobody in the government is required to follow them and nobody out of the government gets to make them.

Still, it’s good to dream.

H/T Cristian Farias

12 thoughts on “The (kinda) Rules of the Prosecutors’ Game

  1. Bartleby the Scrivener

    Typo: “reveal the truth tot he defense” should be, “reveal the truth to the defense”.

    🙂

  2. Scott Morrell

    So if I understand this correctly, the Justice Department created a set of disclosure rules that do not have to be enforced, partly by the vagueness of the wording? [Ed. Note: Political dig deleted, as SJ is nonpartisan in its critical view of government.]

    1. SHG Post author

      Each US Attorney in each district gets to make up his own rules, though the DoJ has guidelines as well, which nobody outside the DoJ is allowed to see. The vagueness of the wording is one problem, but even if it was specific, it wouldn’t be required internally or enforceable externally. Belt and suspenders protection of nondisclosure.

  3. Jerryskids

    If the feds are so faithful in following the (non)disclosure rule that the disclosure rules themselves not be disclosed, can’t you take it on faith that they’re following the rest of the disclosure rules faithfully as well? Geez, it’s like you want the transparency rules to be transparent or something.

  4. Not Jim Ardis

    I’m starting to suspect that Scott is trying to drive us all into membership in a death cult or something…

Comments are closed.