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April 23, 2011

"Federal Judiciary Divided Over Changing Criminal Discovery Rule"

The title of this post is the headline of this notable piece up at The BLT.  Here is how it begins:

Federal judges are divided over the necessity to change the rules of criminal procedure to put a greater emphasis and burden on prosecutors to turn over favorable information to defense lawyers, a Federal Judicial Center report concluded.

The center, the research arm of the judiciary, surveyed all U.S. Attorney’s Offices, thousands of defense lawyers and federal and magistrate judges to assess the merits of a proposed amendment to Rule 16, which governs discovery in criminal cases.  A copy of the survey results is here. (Click here for an earlier report on the survey’s findings.)

The FJC said 43% of about 1,500 judges completed the online survey, which was conducted last year. Eighty-five of the 93 U.S. Attorney’s Offices participated in the review.  More than 5,000 private criminal defense lawyers and federal public defenders provided their assessment.

The judiciary was evenly split on the need for amending the rule. But judges in districts with local rules or standing orders that require broader disclosure of information than what’s required in Rule 16 indicated greater support for a rule change than other judges in the judiciary.  The Justice Department opposed a rule change.  More than 90% of the defense lawyers who responded favored a change.

The two most frequent disclosure violations among prosecutors, judges reported, were the failure to provide favorable information on time and the scope of the disclosure to the defense.

Judges also reported they rarely hold an attorney in contempt and infrequently report a prosecutor’s conduct to the DOJ’s Office of Professional Responsibility, bar counsel or other disciplinary body.

April 23, 2011 at 06:18 PM | Permalink


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What's the problem? As the following cases illustrate, prosecutors are already well aware of their duty to disclose exculpatory evidence, aren't they?

Connick v. Thompson,131 S.Ct. 1350,1370 (2011)(Ginsburg, J, dissenting) (“throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.”) ; Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011) (murder conviction vacated under Brady where prosecution failed to disclose inconsistent statement of its critical witness that named a person other than the defendant as the killer); U.S. v. Kohring 2011 WL 833263 (9th Cir. 2011) (Withheld evidence that key government witness had allegedly sexually exploited minors was material for purposes of defendant's Brady/Giglio claim warranting reversal of conviction); William v. Ryan 623 F.3d 1258 (9th Cir. 2010) (case remanded for evidentiary hearing on whether defendant prejudiced where prosecutor suppressed evidence suggesting an alternate person was the perpetrator which is "classic Brady material."); Stanley v. Schriro 598 F.3d 612 (9th Cir. 2010) (observing “ the increasing frequency with which innocent people have been vindicated after years of imprisonment” citing Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted . . .”); State ex rel. Engel v. Dormire, 304 S.W. 3d 120 ( Mo. 2010) (kidnapping conviction reversed where state failed to disclose letter suggesting that a prosecution witness had been paid for his testimony); Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010) (murder conviction vacated because "a pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (murder conviction vacated where prosecution suppressed material impeachment information concerning its key witness, Sims; namely that that Sims had worked as a paid informant for at least three local and state law enforcement agencies in multiple cases); U.S. v. Johnson 592 F.3d 164 (C.A.D.C.,2010) (conviction for possessing heroin with intent to distribute vacated because of government's failure to disclose evidence that heroin found in defendant's bedroom was actually owned by his cousin); Cone v. Bell, 129 S.Ct. 1769 (U.S.,2009) (Remand was required, on petition for habeas corpus from Tennessee murder conviction and death sentence for review of the effect of prosecution’s suppression of evidence); Simmons v. Beard, 590 F.3d 223 (3d Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose that witness was pressured to cooperate and that a second witness committed perjury); Wilson v. Beard, 589 F.3d 651 (3d Cir. 2009) (murder conviction and sentence of death vacated because of prosecutor’s suppression of favorable information regarding witnesses criminal convictions and providing money to witnesses); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (murder conviction and death penalty vacated because of prosecutor’s failure to disclose exculpatory report from ‘witnesses who would have cast serious doubt on the State’s case.” ); U.S. v. Price, 566 F.3d 900 (9th Cir. 2009) (conviction reversed where prosecutor violated his due process duty under Brady to learn the results of investigation into criminal past of government witness); U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009) (government violated due process by not disclosing favorable evidence discovered in parallel SEC proceedings); Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose promise to key witness); Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (murder conviction vacated because of due process violation where prosecutor knew witness was testifying falsely); Harris v. Lafler, 553 F.3d 1028 (6th Cir. 2009) (murder conviction vacated because of due process violation where prosecutor suppressed promise to key witness); U.S. v. Robinson, 538 F.3d 1265 (10th Cir. 2009)(conviction reversed because of district court’s refusal to disclose informant’s mental health records to defense which violated Due Process);

Posted by: Michael R. Levine | Apr 24, 2011 1:57:39 AM

"federal and magistrate judges"

That has to sting a bit.

Posted by: Jay | Apr 24, 2011 2:16:03 AM

guess all those nasty cases wher innocent people are being relased YEARS after being shafted by a da who didn't discose is finally starting to sink in!

Posted by: rodsmith | Apr 24, 2011 2:37:55 AM

@Posted by: Michael R. Levine
Yep and the beat goes on & on & on &...........

"guess all those nasty cases where innocent people are being relased YEARS after being shafted by a da who didn't discose is finally starting to sink in!'

One can only hope but until SCOTUS removes the guarantee of absolute immunity for prosecutorial misconduct little will change. Where is the incentive for a win at any cost prosecutor to be honest? As long as the mindset is that expressed by the government in "Pottawattamie County v. McGhee" (settled out of court before SCOTUS could rule)that there is "no constitutional right not to be framed "prosecutors have free rein to pretty much do as they please to build their conviction rate. It is all about politics, not justice.

Posted by: Thomas | Apr 24, 2011 12:33:27 PM

The judges must begin to maintain discipline to prevent the loss of credibility of the courts. That is already in tatters, with both the immunity of 90% of serious crime, and the 20% exoneration rate. These judges suck from every angle. They are know nothing incompetents who did someone a political favor, dunderheads, as a rule. They now sit in this cush, do nothing government sinecure. They should try to act a little.

They should assess all costs, including economic costs to the defendant, to the personal assets of the prosecutor. The taxpayer should not pay for the dishonesty of a prosecutor, since that is not part of their official duties. This would not be tort liability, prohibited by the pro-lawyer biased Supreme Court. This would be restitution for criminal contempt of court. The lawyers have a duty of candor to the court. And the criminal contempt is to enforce this standard.

Posted by: Supremacy Claus | Apr 24, 2011 10:08:54 PM

We prosecutors respond to Mr. Levine's list of cases as follows: "we don't need no stinkin' rule." After all, "to convict the guilty is nothing, but to convict the innocent---ah, what a high!"

Posted by: anon14 | Apr 24, 2011 11:03:24 PM

How much can a profession suck before it is removed from the total control of our government? Only a Day of Liberation will do. Arrest all the 15,000 cult criminals that run this profession. Have immediate, on the spot, one hour, fair trials. The sole evidence will be their legal and policy decisions. No collateral corruption lawyer gotchas. Their legal output is the treason. Then hang them in the court basement upon pronouncement of verdict and sentence.

That year eradicate their clients, the violent criminals. All one million. No prisons. Tiny criminal justice system. No crime. How? The criminals go missing, starting at age 14. None makes it to 18 and their peak years of criminality. Loose our warriors from the straits put upon them by the rent seeking lawyer traitor. Let them upon on our foreign enemies. Kill all 10 million. Include all heads of state, all intellectuals, all financiers, all religious leaders who so much as utter a single word criticizing the US. To deter.

Then this country proceeds on its destined path of glory and greatness on frictionless rails of massive found wealth, at no additional cost to the government. The value added, just to real estate values alone, and to the resulting tax base, from the permanent end of criminality and foreign uncertainty will likely make the $14 trillion debt seem like pocket change. Payable from a wallet.

To prevent the resurgence of other traitors, pass Amendments. 28) All laws must be tested and proven safe and effective to their intended aim. 29) Force desuetude on all the states. 30) No lawyers are permitted on any bench, legislative seat, or responsible policy position. 31) Close by force any law school that has not completely removed all supernatural doctrine indoctrination outside of courses on religion. 32) Any legal utterance rated above the sixth grade reading level is void. (The Law Belongs to the Public, and Not to the Lawyer Traitor Amendment.)

Posted by: Supremacy Claus | Apr 25, 2011 1:28:59 AM

Do you know what has been very interesting about this subject? That not one of the "High Moral Fiber" prosecutors, who regularly post on this site have come forward to defend their immunity from wrong doing. Guess they find that defending the indefensible a little more difficult than bragging about their successes as prosecutors. Must be that "fabricating" evidence in defense is more difficult than the fabrication of evidence for prosecution. In defense they can't "stack" charges and threaten family members.

Posted by: Thomas | Apr 25, 2011 10:52:49 AM

Thomas, it's true. the silence from the usual self-righteous crew is deafening.

Posted by: anon11 | Apr 27, 2011 12:23:28 PM

Professor Cherinsky just published this relevant article in the National Law Journal entitled "Head in the sand over prosecutorial misconduct."

"The Supreme Court has sent a disturbing message that it just doesn't realize there is a serious problem infecting our criminal justice system.
Erwin Chemerinsky All Articles The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct. Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels. For example, early this month, the Northern California Innocence Project at Santa Clara Univer¬sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.
Two years ago, in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Court dismissed a suit against prosecutors by a man who spent 24 years in prison for a murder that he did not commit. Tommy Lee Goldstein was convicted of murder even though there was no physical evidence linking him to the crime, no eyewitness and no confession. The key evidence against Goldstein was the testimony of two witnesses who said that they heard him admit to the killing. One later recanted.

The other, the key witness, was a jailhouse informant, Edward Fink, who had a long history of making deals with prosecutors to get a reduction in charges and punishments in exchange for giving testimony against other inmates. Fink claimed that Goldstein made incriminating statements when they shared a jail cell together. The prosecutors never disclosed Fink's history to Goldstein's lawyers nor the discussions about the benefits Fink would receive for testifying against Goldstein.
After Goldstein prevailed in his habeas corpus petition and was exonerated, he sued the then-district attorney for failing to institute a policy of disclosing such information to criminal defendants, as is required by the U.S. Constitution. The Supreme Court unanimously held that Goldstein's civil suit had to be dismissed because of absolute prosecutorial immunity.


The Supreme Court has held that prosecutors have absolute immunity for their prosecutorial acts, but only qualified immunity for their administrative and investigative acts. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976). Goldstein argued that his suit was based on the administrative failure of the district attorney, including the failure to adequately train and supervise district attorneys on the need to disclose impeachment material. The Supreme Court rejected this argument and declared: "[W]e conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here."
On March 29, in Connick v. Thompson, 2011 WL 1119022 (U.S.), the Court ruled against a man who was convicted and spent 18 years in prison, and 14 years on death row, because of prosecutorial misconduct. One month before he was to be executed, John Thompson's defense lawyers found blood evidence that prosecutors possessed, but did not disclose, that exonerated him for an armed robbery for which he had been convicted and that greatly affected his murder trial.

Two days before Thompson's trial, the assistant district attorney received the crime lab's report, which stated that the perpetrator had blood type B. The defense was not told of this, not at the trial and not until the report was discovered shortly before Thompson's scheduled execution. Thompson has type O blood. The district attorney conceded that it violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), in not turning over the blood evidence. Thomp¬son sued for prosecutorial misconduct, and a jury awarded him $14 million. But the Supreme Court reversed, in a 5-4 decision, and held that the city could not be held liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the Court, said that a single instance of prosecutorial misconduct was not enough to show sufficient deliberate indifference to allow the city to be sued. But as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion, this was not a single instance of misconduct. She wrote: "Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.…What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish."
These two cases share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency.

In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material. Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system."

Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.

Posted by: Michael R. Levine | Apr 27, 2011 5:09:42 PM

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