The Texas Tornado, Mark Bennett, has a great post about the comparison between two local prosecutors, one who happily provides the police offense reports to the defense and one who refuses to even let the defense read them until trial.  From an editorial in the Austin American-Statesman, the conclusions to be drawn could not be more clear:

A prosecutor whose sole aim is to see justice is done is unafraid that his adversary may be reading from the same report — after all, an accurate and thorough investigation convicts the guilty and protects the innocent. Unfortunately, maintenance of secret police reports is still the norm in some jurisdictions, such as Williamson County.

This attitude reflects a neurotic insecurity about the talent and skill of its own prosecutors as well as distrust of the honesty and competency of local law enforcement. Worse, it suggests a need to hide police reports to maintain an unfair advantage, a policy elevating conviction rates above the interests of justice.

The juxtaposition of these two approaches brought me immediately to the differences between state and federal prosecutions, and a long-standing argument that has been rejected by federal judges time after time.  In New York State courts, discovery is extremely limited, controlled by statute, but exists.  The law makes provision for a bill of particulars to the indictment, which is routinely granted.

The problem with a state bill of particulars, at least in New York City, is that few prosecutors take it seriously, and almost invariably respond by reference to the “Voluntary Disclosure Form” that is handed out at arraignment.  The form contains some of the particulars, but has a few flaws. 

• It’s not sufficiently detailed to provide the level of information necessary to prepare a defense against the accusation. 
  
• It often contains erroneous information, and judges routinely ignore this defect when time comes for trial and the details turn out contrary to what was disclosed. 
  
• And the form often provides that the prosecutor will turn over materials that he’s obliged to turn over “at a mutually agreeable time.” 

Well, that time is upon demand, and there’s nothing in the statute that provides that the ADA has to find it agreeable.  More to the point, actually getting the disclosure from the ADA is like pulling teeth.  And again, judges avoid involvement like the plague, neglecting their duty to compel the prosecution to comply with their statutory obligations.  The VDF has become an institution in itself, too often used to stone-wall discovery than provide it.

But as bad as state court discovery is, it looks downright fair in comparison to federal.  Rule 16 turnover is the legal equivalent to pump and dump, where the government will provide you with a million pages of garbage and leave it to you to sift through the dreck to find the one page of discovery that actually matters.  This isn’t an accident.

Worse still, the discovery doesn’t come cheap.  The offer is to see it at the United States Attorney’s office or to pay 25 cents a page for a private company to copy it for you.  By the way, the copy business for government disclosure is the best game in town.  If you get a chance to do it, you will, without a doubt, get rich.

None of this, however, provides a clue as to what the government is basing its prosecution on.  The theory, the evidence, the attack is often a huge mystery, leaving a defendant to wonder what he will meet at trial.  While there is a theoretical potential for a bill of particulars, you would think the judges have to pay for it themselves by how rarely one is permitted. 

The argument is that the government would be unduly prejudiced if required to disclose its theory of prosecution.  My argument in response has always been, “how can the government be prejudice by disclosing the truth?”  It’s been rejected time after time.

Of course, the prejudice is that the government would lose its advantage of denying the defendant a chance to prepare.  We can’t have that.  If the defendant knew what the government’s theory was, he might win.  That would ruin everything.

So our big, bad government, with all its money and might, with its army of Special Agents, with its favorable institutional bias, with its access to our inner-most thoughts and acts, is still so afraid of criminal defense lawyers and thinks so poorly of its AUSAs that it must conceal everything possible lest the defendant be given a fighting chance. 

Maybe the government should consider some therapy to address that “neurotic insecurity?”

Caveat:  While this is generally the case in New York City, your mileage may vary.  Some AUSAs and ADAs provide great discovery, happily and in the finest tradition of the prosecutorial function.  These are the ones who are respected for their integrity.  They may play hard, but they play fair.  That’s all we ask.