Judge Alex Kozinski pointed out the obvious in a Ninth Circuit Appeals Court decision:
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
Brady evidence -- possibly exonerating evidence that prosecutors are required to turn over to the defense -- is far too frequently withheld and/or buried. The punishments for violating this requirement are almost nonexistent. The prosecution hates to see wins become losses. And the government in general -- despite declaring fair trials to be the right of its citizens -- hates to play on a level field.
A federal judge withdrew from a forensic evidence committee because the government told him it wasn't his job to point out the severely-flawed pre-trial forensic evidence discovery procedures deployed by prosecutors. Judge Rakoff called the government out in his resignation letter.
The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter… A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.
"Trial by ambush" will continue unabated. Prosecutors will shrug off the minimal punishments for withholding evidence. The DOJ will continue to argue that it's allowed to erect as many roadblocks as it wishes in front of defendants.
The DC Appeals Court has allowed the DOJ to retain another aspect of its "trial by ambush" strategy, as reported by Mario Machado of Fault Lines.
The D.C. Court of Appeals declared that the federal government will not have to disclose the contents of a guide that determines when its prosecutors should disclose evidence to the accused. The Department of Justice’s “Blue Book” stays in-house, at least for the time being.
The "Federal Criminal Discovery Blue Book" was crafted after DOJ prosecutors were blasted by a judge for their actions in the prosecution of Senator Ted Stevens.
In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case.
Brady material was withheld from the defense, something that would have never been discovered without an FBI whistleblower stepping forward. The new guidelines were supposed to make things better. Very little seems to have changed since its introduction. And no one on the defense side of the fight has any idea what prosecutors are required to do under these guidelines.
The National Association of Criminal Defense Lawyers (NACDL) tried asking the government for a copy. This was denied. So, it filed a FOIA request for the "blue book." This, too, was denied, with the government claiming its internal guidelines for ensuring a fair fight were not subject to FOIA requests. From the DC Appeals Court decision [PDF].
The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation.
This claim is laughable. Of course it's for litigation. But it's not for any specific litigation. It's for use in all DOJ prosecutions, which makes it more aligned with general information, rather than a narrow slice of "attorney work-product." The NACDL pointed this out.
The NACDL argued that the Blue Book fell outside the work-product privilege because it had a non-adversarial function, to wit: the training and education of the DOJ’s vaunted prosecutors. It also argued that its disclosure was fair game because it was not drafted with a specific litigation in mind, but ultimately the Court sided with the federales, who fought tooth and nail to keep the book under wraps.
One part of the judicial system has seen the contents of the "blue book" (other than DOJ prosecutors): the district court. An in camera presentation to both the lower court and the appeals court has allowed both to reach the decision they have. But will it result in the courts holding the DOJ to their own super-secret standards? Of course not.
Judges are presented with evidence obtained through discovery. They have no idea whether all of it is present or if the DOJ followed its own instructions for handing over Brady material to the defense. The judges' viewing of this internal document will not result in greater accountability.
Handing these guidelines over to defense lawyers, however, would give them more avenues to challenge withheld evidence and other perceived violations in disclosure. The government doesn't like this idea and claims that a more level playing field would severely hamper its prosecutions. One is inclined to agree with the DOJ's claim about hampered prosecutions, although not for the reasons it states.
DOJ thus argues that disclosing the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.” Id. It contends that disclosure would afford anyone who wanted to read the Blue Book (including opposing counsel) “unprecedented insight into the thought processes of federal prosecutors.” Disclosure thus would “undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the Department’s handling of federal prosecutions.” In addition, it would “severely hamper the adversarial process[,] as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions.”
In other words, the fight might be slightly fairer, and the government won't be having any of that. The DC Circuit is now completely complicit in the government's "trial by ambush" plans.