The Rationale For Concealment

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.

13 thoughts on “The Rationale For Concealment

  1. N

    I read the judge’s missive, and it reminded me of a time that I took advantage of an open file offer. I reviewed the boxes of material, and then stated there must be something more. “No, no,” the prosecutor’s assistant replied, “this is everything.”

    Except it didn’t include all the thing they had already produced. So they looked around, found more files. And then, a month later, more discovery. And in the midst of trial, even more. Every time, the prosecutors said it was an honest mistake. Every time, we debated whether they’d reached the end of Hanlon’s Razor.

    But to your list of dirty reasons, I’d add a third. Prosecutors (at least many) don’t care if disclosure isn’t sufficient, they don’t care if they missed something, and they don’t get why a defense attorney is fighting them. Defendant’s a bad guy. He deserves to go to prison. Does how that happen really matter? Defense counsel should just get on board.

    1. SHG Post author

      Excellent point. Open file is only as good as its completeness. There is the “oops, we missed this” part. And there is the piece where defense counsel relies on its completeness and accuracy, engaged in investigation to the extent possible due to limited resources, only to find out afterward that the prosecution neglected to provide discovery that changes everything.

      And since the defendant is guilty anyway, what’s the big deal?

      You also reminded me of one more reaction: “Ask your client, he knows what he did.”

  2. Fed Upaton

    I am baffled that we, as a group, seem to have lost sight of the fact that prosecutors work for US and that their main objective is “to seek justice”–not convictions. Under this priority, any prosecutor that doesn’t provide an early and open file is really committing an injustice, failing his/her job, and engaging in criminal acts by violating individual’s rights….and should be not only fired, but prosecuted. Immunity has outrun its usefulness.

    1. SHG Post author

      Who is “we, as a group”? This is a law blog, and we, criminal defense lawyers, have hardly lost sight of problems with the system. Be cautious about being overly simplistic and grandiose about the problems, as that treads dangerously close to reddit territory.

      1. Bartleby the Scrivener

        I don’t blame defense attorneys for this problem…quite the opposite, you folks are our foremost shield against abuses of the government in criminal trials. I’d say the ‘we’ that have forgotten is (the bulk of) ‘we the People of the United States of America.’ We’ve sacrificed due process at the altar of television.

        The great dystopias portrayed in fiction were supposed to be cautionary tales, not suggestions.

        Sorry if this is too hyperbolic for you, but I really think we’ve forgotten what justice really is.

  3. Alice Harris

    Something in this reminds me of the time I was taking discovery depositions with a state prosecutor in Florida (which has extremely open discovery rules in criminal cases). The state’s attorney was frustrated with my insistence on deposing each of the state’s witnesses. In exasperation she said, “If you would just do your job and get him to plead, we wouldn’t have to go through all of this.”

  4. Kathryn Kase

    I am reminded of the 2013 negotiations for The Michael Morton Act, when prosecutors argued that a broader Texas discovery law was unneeded because they already were providing all discoverable material to the defense. Nonetheless and for the first time in 50 years, Texas legislators established mandatory discovery, including the requirement that prosecutors produce all exculpatory, impeaching and mitigating information (without regard to materiality), even after disposition of the case. Today, prosecutors who insisted they already were providing all discoverable material are complaining that the law is driving up their administrative costs. I await similar concern regarding the costs of overcharging, over-incarceration and convicting the innocent.

  5. Piedmont

    We don’t really think that the defense attorney is going to be evil and manufacture a fraudulent defense. We just think that the defendant is going to find an awful lot of people with perfect memories of that exact incident from months or years ago, and that the defense attorney is going to have a duty to put them on the stand. And even that is pretty rare.

    Even so, open file discovery is usually the best strategy. It’s more important to keep the check of an adequate defense in place than to make sure that 100% of the people who deserve to be convicted actually are.

    1. John S.

      I don’t understand; you seem to be implying the following:

      1) The prosecutor hands more information to the defense
      2) The defendant produces people to act as an alibi (i will assume they’re liars or none of this makes sense)
      3) The attorney puts these people on the stand
      4) The jury believes them and the prosecutor is powerless to convince them otherwise

      1 and 2 seem utterly unrelated. 3 is you flat out accusing defense attorneys as a group of being willing to suborn perjury. 4 seems to contradict everything that anyone has ever noticed about the US justice system. So I ask you: which step am I missing, and at what point do the gnomes come and steal everyone’s underwear?

      1. Piedmont

        When the defendant sees a police report, he often becomes aware of details he might not have otherwise known, including statements made by victims and witnesses to law enforcement outside the presence of the defendant. The defendant (not his attorney) gets a friend of his to say he was there at some important moment, like when the defendant made incriminating statements to a witness, because he now knows this is evidence against him. (You can come up with any number of variations of this.) The defense attorney isn’t suborning perjury when she puts the friend on the stand if she either genuinely believes the friend is telling the truth or because she needs to zealously represent her client and has no way of independently verifying if the friend was present at the time. I make no accusations at all against defense attorneys here, nearly all of whom are simply trying to do their job honestly and as best they can with the limited resources and nearly unlimited ethical duties they have. The problem is that they are very often honest agents of dishonest masters.

        As for “Step 4,” all I can say is that our observations must be different as to what juries and judges do when two witnesses testify with different stories and no reliable way to tell whose is true.

        So it looks as though you’re missing the connections between each and every step in the list. Again, though, the risk of this happening (and it does happen reasonably often) is outweighed by the need for due process. Pretending that it doesn’t happen, or simply being ignorant that it does, isn’t helpful at all.

        1. SHG Post author

          Or you’re assuming defendant’s guilt (despite the presumption of innocence), assuming that he is prone to violence, lies or criminality, inclined toward perjury, and use these gross assumptions to bootstrap paranoid delusions into an excuse to deprive a defendant of the ability to defend.

          1. Piedmont

            I think you’ll agree that at a certain point, a prosecutor has to decide that, based on the information he has, he can no longer presume the defendant innocent, or else no prosecutor could ever ethically proceed on a case.

            I’m also curious as to how I’m excusing depriving a defendant’s ability to defend himself when I’ve explicitly said, in both posts on this, that I support open file discovery even if it increases the risk of a defendant being acquitted due to manufactured and perjured testimony.

            1. SHG Post author

              If the prosecutor has enough justification to redact out of concern for a witness’ safety, for example, then there’s always that judge-guy, on notice, to decide. The prosecutor doesn’t get to decide the defendant isn’t presumption-worthy on his own.

              Sorry that my comment came off as personal rather than the generic prosecutorial “you.” It wasn’t directed toward you personally.

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