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Appeals Court Says DOJ Can Keep Its Evidence-Production Guidelines To Itself

from the an-open-court-with-secret-rules dept

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.


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  1. icon
    Rapnel (profile), 22 Jul 2016 @ 6:36pm

    Oh, OK, that makes me feel better, thanks.

    reply to this | link to this | view in thread ]

  2. icon
    That One Guy (profile), 22 Jul 2016 @ 6:37pm

    Telling reasons

    If an even playing field, or even one slightly more even is enough to undercut the prosecution's case then they're essentially admitting that they could not win the case without underhanded tricks. If they're doing things properly then it shouldn't matter if the defense knows everything they're going to do and present, because the evidence should still be on their side.

    That they feel the need for trickery and obfuscation positively reeks of weak cases that could not be won on the evidence alone and requires sleazy legal(-ish) tricks.

    The new guidelines were supposed to make things better.

    As for the idea that the new guidelines are supposedly better than the old ones? The fact that they're doing everything they can to prevent the exposure of those new guidelines demonstrates without a doubt that that's a lie. At best they're no worse, but I'd put good odds on them being either the same thing packaged in different language, or even more dishonest and underhanded than the previous guidelines.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 22 Jul 2016 @ 6:39pm

    The DOJ will continue to argue that it's allowed to erect as many roadblocks as it wishes in front of defendants.

    Said roadblocks being erected to either funnel people into prison or keep them out (cough..hillary..cough) as the DOJ so pleases.

    reply to this | link to this | view in thread ]

  4. icon
    Nathan F (profile), 22 Jul 2016 @ 7:31pm

    Aren't we supposed to let ninety nine guilty men go free then suffer one innocent man in jail? It isn't supposed to be an easy job for the DoJ. If they want to send a man to prison for life then they really need to work for it, and holding back evidence is morally wrong.

    Is it any wonder people hate lawyers so?

    reply to this | link to this | view in thread ]

  5. icon
    Padpaw (profile), 22 Jul 2016 @ 8:22pm

    bring on the fake evidence hidden by being labeled national security secrets to legally lock up people they do not like

    reply to this | link to this | view in thread ]

  6. identicon
    David, 22 Jul 2016 @ 9:25pm

    Uh what?

    DOJ thus argues that disclosing the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.”

    Otherwise known as "due process". These are not game courts. At least they are not supposed to be.

    reply to this | link to this | view in thread ]

  7. icon
    That Anonymous Coward (profile), 22 Jul 2016 @ 9:51pm

    Justice is what we say it is.
    The courts have decided we have final say on evidence that can be used. So what if we have a video of you in another state at the time of the murder, we decided you are guilty and have allocated resources to this case. We can't back down now, otherwise criminals might get ideas. So what if we lock up innocent people, we're never going to face charges or have to clean up the mess.

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 23 Jul 2016 @ 1:55am

    Re:

    'Sad but true' doesn't quite cut it there, how about 'Revolting and disgusting but true'?

    These days it's all about getting as many people behind bars or otherwise convicted as possible, with actual guilt or innocence of the accused way down the list of priorities.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 23 Jul 2016 @ 2:16am

    the DoJ seems to be getting more and more like the Gestapo every day! how can anyone with even half a brain think that a person accused of something doesn't deserve to have a fair trial? that can only be achieved if all evidence against that person is disclosed as well as the method used to get it. if the defense knows nothing about either, how can the defendant(s) possible be treated fairly? obviously much more important to get a win for the DoJ than anything else.
    i find it so hard and so disgraceful that a country has reduced itself to such low levels. everything that the battles for Independence was based on wanting to be free of tyranny with fair play and true justice for all. this behavior throws all that clean away!

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 23 Jul 2016 @ 5:10am

    Old School

    "In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case."

    These 20th century judges and their Amish, whip-and-buggy views...retire or die already old man - give some new blood [vetted by us] a chance.

    DoJ

    reply to this | link to this | view in thread ]

  11. icon
    Padpaw (profile), 23 Jul 2016 @ 7:37am

    Re:

    operation paperclip integrated surviving nazi military officials and scientists into the then us government.

    I think we are seeing the long term results of that

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 23 Jul 2016 @ 9:21am

    Re:

    The day of reckoning draws closer, I think.

    reply to this | link to this | view in thread ]

  13. identicon
    SpaceLifeForm, 23 Jul 2016 @ 10:54am

    The complete Latest copy of DOJ Blue Book

    This page intentionally left blank.

    reply to this | link to this | view in thread ]

  14. icon
    Uriel-238 (profile), 23 Jul 2016 @ 11:26am

    More evidence of high numbers of innocent inmates.

    The dependence of trickery (rather than ironclad evidence) to convict more demonstrates how the prosecution is less interested in seeing justice done, and more interested in packing penal facilities with bodies.

    So yeah, my statement still stands: since there is considerable cause to doubt conviction assures actual guilt, all our prisoners convicted by our justice system are in fact political prisoners, convicted because someone doesn't like them, or they just got unlucky.

    Sure, some are guilty, but we haven't determined that at all through the US system of justice, and now we may never be able to make that determination.

    Nice job breaking it further, Ninth circuit.

    reply to this | link to this | view in thread ]

  15. icon
    Coyne Tibbets (profile), 23 Jul 2016 @ 1:14pm

    Re:

    Unfortunately, it's simpler than that. A DOJ prosecutor advances their career by convictions...no one checks to see if the innocent are being convicted.

    Why would innocent or guilty matter? What matters is can/can't convict. If a "can't" can be changed to a "can" by hiding a video, why not hide it?

    reply to this | link to this | view in thread ]

  16. icon
    Padpaw (profile), 23 Jul 2016 @ 7:28pm

    Re: More evidence of high numbers of innocent inmates.

    in a sense concentration camps exist, we just call them prisons instead.

    Since the titular german concentration camp wasn't a death camp but a prison.

    They only started being converted afterwards

    reply to this | link to this | view in thread ]

  17. identicon
    Wendy Cockcroft, 25 Jul 2016 @ 7:50am

    Re: Re:

    I'm inclined to agree, but Nazis and Fascists have been active in the USA since long before that. Since their interests align with the Far Right no real effort has ever been made to root them out; there have never been moral hysterics about them the same way there have been about leftist causes.

    I'm not defending leftist anything, I'm just saying that extremism is bad, whatever side of the aisle it's on.

    reply to this | link to this | view in thread ]

  18. identicon
    Bees!, 25 Jul 2016 @ 8:03am

    No dissent either. Interesting.

    reply to this | link to this | view in thread ]


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