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February 23, 2014

NACDL brings FOIA lawsuit against DOJ for access to criminal discovery guide

The alphabet suit title for this post concerning this story reported here by Legal Times under the headline "Criminal Defense Group Sues DOJ Over 'Discovery Blue Book'." Here are the details:

The National Association of Criminal Defense Lawyers [Friday] sued the U.S. Department of Justice over public access to a criminal discovery "blue book" that was written after the collapse of the case against Ted Stevens.

The Justice Department last year turned down a request from the NACDL for a copy of the Federal Criminal Discovery Blue Book.  The lawsuit was filed ... in U.S. District Court for the District of Columbia.

Justice Department officials, according to the complaint, cited the book as an example of why federal legislation was unnecessary to prevent future discovery abuses among prosecutors.  During a hearing on Capitol Hill, in 2012, the Justice Department said the blue book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal," according to the NACDL complaint.

"The due process rights of the American people, and how powerful federal prosecutors have been instructed as relates to the safeguarding of those rights, is a matter of utmost Constitutional concern to the public," NACDL President Jerry Cox said in a written statement.  "The 'trust us' approach is simply unacceptable.  And it is certainly an insufficient basis upon which to resist bipartisan congressional interest in codifying prosecutors’ duty to disclose."

February 23, 2014 at 12:28 PM | Permalink

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Comments

I love the idea of the NACDL's "fighting for the public welfare" just as its members struggle every day in behalf of the people who endanger public welfare.

In other contexts, don't defense lawyers tell us that public welfare is not their concern, and that they are ethically obliged, and eager, to promote only the client's welfare, and that public welfare is for others to worry about?

Posted by: Bill Otis | Feb 23, 2014 2:00:34 PM

that's funny bill. sorry but if this the DA's bible as it were over discovery. Sorry it should have been made PUBLIC when created. Why keep it a secret just for the great god PROSECUTOR!

Unless it's got something to hide!

Posted by: rodsmith | Feb 23, 2014 2:40:05 PM

"I love the idea of the NACDL's "fighting for the public welfare" just as its members struggle every day in behalf of the people who endanger public welfare.

In other contexts, don't defense lawyers tell us that public welfare is not their concern, and that they are ethically obliged, and eager, to promote only the client's welfare, and that public welfare is for others to worry about?"

What a KAKAMEME Red Herring Strawman. Trust Us - We Have Nothing To Hide, but we won't shown you anyway. We'll just throw up a NACDL Smokescreen, kind of like trying to prosecute a crooked LE Agent.

Duh - We are not fools, Bill. Is that the best justification you can come up with?

Posted by: albeed | Feb 23, 2014 2:57:32 PM

Bill: In the past you have reminded people that we grant government certain privileges to commit what would be crimes on our behalf to protect us. So the government may kidnap and keep people in a cage, whereas others may not. It may send soldiers to kill people to defend us. But we set limits on these privileges so that government does not get tyrannical.

You believe in tort immunity for the prosecutor and judge, as does the Supreme Court. In the case of Ted Stevens, the prosecution had an improper motive, the political witch hunt.

If you believe in the limits set on government, do you also believe that "evolving standards of decency" demand that those limits move forward every once in a while?

The information is not case specific, and describes policy. What is the justification for the secrecy?

Posted by: Supremacy Claus | Feb 23, 2014 4:50:50 PM

albeed --

"We are not fools, Bill."

Apparently you're enough of a fool to think that I'm defending Eric Holder's DOJ, which I have criticized more frequently and to greater effect than you have even attempted.

When the NACDL goes on year after year after year saying the client must come first regardless of what the public thinks, and then does a one-eighty to declare that it's suing to "protect the public welfare," the hypocrisy is hilarious. That you're too much of a dunce to get it, or just too jaundiced to see any flaws in how the NACDL operates, is not my problem.

Posted by: Bill Otis | Feb 24, 2014 12:27:56 AM

Sometimes, I'm not defending my client nearly as much as I'm defending the Constitution from Machiavellian prosecutors, whose firm belief that their "Justice" roles make any conduct getting to conviction okay, and some of whom are, quite frankly, no better a brand of sociopath than the defendant at my table.

It is absolutely in the public's interest to prevent the Justice Department from having a secret discovery handbook. It is bizarre to me that "secret discovery handbook" can exist in "Justice" Department thinking (if not their expressed euphemisms).

Posted by: Jay Hurst | Feb 24, 2014 10:17:37 AM

Jay Hurst --

"...no better a brand of sociopath than the defendant at my table."

Do you ever worry about what the sociopath at your table is going to do next if you succeed in putting him back on the street? Or is that just someone else's problem?

And I'm not looking here for the stock answer about "that's how the system works" or "everyone is entitled to a defense." I'm looking for some actual introspection about future consequences -- digging down beneath the stock answers.

Posted by: Bill Otis | Feb 24, 2014 2:21:37 PM

-Albeed

"In other contexts, don't defense lawyers tell us that public welfare is not their concern, and that they are ethically obliged, and eager, to promote only the client's welfare, and that public welfare is for others to worry about?"

A functioning judicial system that insures the state has the evidence to prove their case before a person is convicted is essential for the public welfare both in protecting the innocent and providing for the rule of law.

Bill, what do you propose? Asking the client if they did it and, if they say yes, turn them in and have them convicted? That will just have them lie to their lawyer or not say anything. Then what happens with a person who is legally innocent but doesn't fully understand the law. If he doesn't tell his lawyer anything (reasonably believing that the lawyer will turn him in) and gets convicted, that's an innocent person going to jail. How is that a better system? What exactly is your argument in this front besides constantly questioning the moral integrity of those who act to ensure a functioning adversarial system?

Posted by: Erik M | Feb 24, 2014 3:54:08 PM

Erik M --

"A functioning judicial system that insures the state has the evidence to prove their case before a person is convicted is essential for the public welfare both in protecting the innocent and providing for the rule of law."

As I said in my response to Jay Hurst, I'm hoping for something with more skepticism, and more introspection, than The Slogan.

"Bill, what do you propose?"

Telling the truth.

I have said that many times before, and it never ends well. Why do defense lawyers go ballistic when I recommend that they behave as they spend years teaching their children to behave?

"Asking the client if they did it and, if they say yes, turn them in and have them convicted? That will just have them lie to their lawyer or not say anything."

They already lie to their lawyer, as I'm sure you know. Indeed, defense lawyers have the unhappy task of getting lied to even more than the prosecutor gets lied to.

"Then what happens with a person who is legally innocent but doesn't fully understand the law."

The defense bar makes its money (literally) feeding off the concept of "legal innocence." Having been in court for a long time, I got a lesson in the uses of the concept of "legal innocence."

Its primary use by far is to pave the way for some well-paid shrink to get on the stand to say, "Yes, Mr. X told me he did it, but it is clear from my many sessions from him that he was suffering from Y Syndrome, and so did not have control of his actions."

Y Syndrome inevitably turns out to be some convoluted, multi-syllabic term for what normal people refer to as "greed."

The second use of the phrase is to permit defense counsel to make the trial about what the defendant thought (or, far more frequently, falsely claims to have thought) than what he did, which (inconveniently from the defense perspective) occasionally winds up on videotape.

"What exactly is your argument in this front besides constantly questioning the moral integrity of those who act to ensure a functioning adversarial system?"

You seem like a pretty reasonable person as these things go, so let me give you a straight-up answer, in the hope that I won't get called a Nazi or a sadist or the other stuff defense lawyers call me (and anyone else who actually opposes crime).

First, I well understand that many defense lawyers TELL THEMSELVES that they're just helping "a functioning adversarial system," but the idealism tends to become compromised in the inevitable heat of combat, which prompts some less idealistically-driven behavior. See, e.g., this extreme but revealing example: http://www.nj.com/news/index.ssf/2013/09/lawyer_sentenced_to_life_in_prison_on_murder_racketeering_charges.html

Second, there is a large minority of defense counsel whose principal concern is that society is unfair, racist, callous, and so forth, and that this immoral system should not burden the woebegotten client any more than, unforgivably, it already has. The issue is not the adversarial system. The issue is The Depredations of the One Percent, which depredations are to be answered by freeing the client -- not despite the fact that he's factually guilty, but BECAUSE he's factually guilty, and has rightfully given this wicked society the black eye it deserves.

The fact that the injury to society is almost always visited upon some random victim (who might be, and often is, just as much a member of the lower class as the defendant) never occurs, or does not matter, to the defense lawyer.

Third, let's face it, there is a segment of the defense bar that's in it because that's the best job they can get. It's not a secret in our profession that defense counsel are paid much less than other specialties, like taxation, corporations, IP, international law and a lot more. Although I know some very smart defense lawyers -- and there are some very smart ones right on this board -- overall, it does not draw the profession's best talent.

I guess my last observation is that I have seldom met people who, on the whole, are less introspective and questioning about what they're doing with their lives than defense lawyers. Prosecutors are often accused of being smug and self-righteous, and, indeed, some of them are. They like the power and drink from its chalice.

But in their own way, defense lawyers are at least equally smug and self righteous. They see themselves as the Defenders of The Oppressed, or as Champions of the Constitution, and they nurture this messianic vision by failing or refusing the see the reality in front of them: That the client is a thug, a cheat, a liar and a hoodlum; that he's every bit as guilty as the indictment says; and that he does what he does, not because society is callous, but because he's self-centered, uncaring about other people, and sure that rules are for suckers.


Posted by: Bill Otis | Feb 24, 2014 4:51:18 PM

Some lawyers are "smug and self righteous." This is a revelation? Thankfully, that description never applies to comments Bill Otis posts.

Ad hominems aside, all lawyers representing private clients have to focus on their clients' interests first. Of course, when we can, we argue that helping our clients helps the Common Good, but no thoughtful person is under the illusion that we are in court to represent anyone other than our client in that case. To the contrary, judges expect us to make the best argument that helping our client in any given case helps the Common Good. If we go too far, it will backfire, sometimes spectacularly. That's the adversarial system.

Posted by: Stephen Hardwick | Feb 24, 2014 7:30:08 PM

Stephen Hardwick --

"If we go too far, it will backfire, sometimes spectacularly. That's the adversarial system."

1. And sometimes it won't backfire; you'll get away with it. That's why it gets tried as often as it does.

2. Even when it backfires, there can be collateral damage, e.g., the government witness your client's gang assassinated while you looked at the ceiling. Of course, defense counsel is not always looking at the ceiling, now is he? http://www.nj.com/news/index.ssf/2013/09/lawyer_sentenced_to_life_in_prison_on_murder_racketeering_charges.html

3. Ah, yes, the ever-and-always refrain, "That's the adversarial system."

Don't you just love it when individuals blame "the system" for their own dishonesty, greed and brutality?

Would anyone think it satisfactory if I defended the death penalty by saying, "That's the system we've got"? Of course not. The question is whether the system needs reform, and in the case of the ethical rules that govern the legal profession, the answer is YOU BET. Not for nothing does the profession have the low public reputation is does.

Of course if you're complacent with what's going on now, OK, I understand. You were just remarking, weren't you, on smugness and self-righteousness?

Posted by: Bill Otis | Feb 24, 2014 8:52:24 PM

This book will get published on some blog soon. If anyone hears of that happening could you please let us know so that the rest of us can get a copy?

Posted by: Liberty1st | Feb 24, 2014 10:56:56 PM

The adversary system is a cornerstone of Anglo-American jurisprudence, and was ensconced in the Sixth Amendment to the United States Constitution. If you oppose that, I can see why you spend so much time banging your head against the wall.

Of course the adversary system is far from perfect. But it's a lot like capitalism--seriously flawed, but better than any of the alternatives.

Posted by: Stephen Hardwick | Feb 24, 2014 10:59:17 PM

Stephen Hardwick --

I'm all for an adversary system, and did quite well by it. I am not, however, for an adversary system without limits, rules or morals. For example, I oppose an adversary system of the kind operated by famed defense lawyer Paul Bergrin, whose motto for defeating the prosecution was, "No Witness, No Case."

Does this make you curious about what happened to the witness?

Probably not, but just in case: http://www.huffingtonpost.com/2013/09/24/paul-bergrin-life-sentenc_n_3981096.html

You gotta love it when rapacious defense lawyers spend hour after hour slamming the system, but then, when the curtain gets pulled back on their dishonest tactics, are the first to bellow, "Don't look at us! That's the system!!"

Posted by: Bill Otis | Feb 25, 2014 4:10:09 AM

Despite many blind leads and "red herrings" obfuscating the purpose of this post, the original commentor has presented NOTHING to excuse the non-publication of the DOJ "Bluebook" so that it can be examined and reviewed by members of a supposedly free society.

Remember that they (DOJ) are first and foremost a self-aggrandizing, self-serving organization and secondly, lap-dogs to what Mark Twain called "America's only native criminal class" (Congress and government in genenal).

Don't bother to excuse and defend this purpose by pointing to the Ted Steven's case. That was first and foremost for internal political self-serving interests and not "Justice".

Posted by: albeed | Feb 25, 2014 8:00:12 AM

albeed --

"Despite many blind leads and 'red herrings' obfuscating the purpose of this post, the original commentor has presented NOTHING to excuse the non-publication of the DOJ "Bluebook" so that it can be examined and reviewed by members of a supposedly free society."

I had been unaware that I'm obliged to defend Eric Holder's policies, about discovery or anything else. Generally, I limit myself to defending policies whose justifications have been made clear to me, and are persuasive.

Albeed, this is where we differ: I approve of and admire DOJ's overall mission of convicting criminals, although I have a degree of (and increasing) skepticism. You, by contrast, view prosecutions and every other act of government with undifferentiated contempt, and your attitude toward prosecutors (and other government officials) is not skepticism but hate.

I'm not going to change your outlook, and you're not going to change mine.

Posted by: Bill Otis | Feb 25, 2014 2:39:36 PM

"Albeed, this is where we differ: I approve of and admire DOJ's overall mission of convicting criminals, although I have a degree of (and increasing) skepticism."

Bingo, especially an increase in skepticism!

"You, by contrast, view prosecutions and every other act of government with undifferentiated contempt, and your attitude toward prosecutors (and other government officials) is not skepticism but hate."

Not true Bill. It is just that federalist hit the nail on the head one time when he said, (and I am paraphrasing here):

'a lack of respect occurs when obvious problems are swept under the rug.'

I wouldn't waste the energy to "hate" the government. It has just stopped following the Constitution many years ago through truly remarkable self-deceiving mental gymnastics (i.e., SO laws being civil and non-punitive, Obamacare a tax and arbitrarily changing dates, total immunity for judges and prosecutors, Jack Camp, civil forfeiture for a non-indictment, permitting the government approved killing of migrating birds, etc.) and thus earned my disrespect. When people are taxed at 25-45% of their non-poverty earnings (federal, state and local) something is too big and rotten. BOTH parties do this and LIKE it this way.

Politicians and political parties are like diapers - they should be changed often and for the same reason.

Posted by: albeed | Feb 25, 2014 4:21:24 PM

albeed --

1. There are criminals out there.
2. We are better off if they are caught and convicted.
3. Prosecutors are charged with convicting them.
4. This is exclusively a government function.
5. Do you approve of it or not?
6. As a general matter, do you approve of the people who do it?
7. If not, who specifically would you suggest for the job?
8. Wont' they also be government employees?
9. Or would you prefer private justice instead?
10. Are you aware that private justice is vigilantism?

Posted by: Bill Otis | Feb 26, 2014 2:04:42 PM

"albeed --

1. There are criminals out there.
2. We are better off if they are caught and convicted.
3. Prosecutors are charged with convicting them.
4. This is exclusively a government function.
5. Do you approve of it or not?"

Bill, if only it were as simple as you describe. However, this simplicity is very far from the truth. For example, I may agree that meth is bad and should be criminalized. Many "drug warriors" say that to meet these ends, it is alright to criminalize the Mom who may unknowingly purchase to much pseudoephedrine within a given period of time (multiple products), who has absolutely no ties to meth. This is stupid and wrong. This means does NOT justify the end.

6. As a general matter, do you approve of the people who do it?
7. If not, who specifically would you suggest for the job?
8. Wont' they also be government employees?
9. Or would you prefer private justice instead?
10. Are you aware that private justice is vigilantism?"

SC answered questions 6-10 earlier in this series of posts.

"In the past you have reminded people that we grant government certain privileges to commit what would be crimes on our behalf to protect us. So the government may kidnap and keep people in a cage, whereas others may not. It may send soldiers to kill people to defend us. But we set limits on these privileges so that government does not get tyrannical."

It is MY intrepretation of Constitutional Limits and not nine political hacks in black pajamas that I go by. I am literate with a working knowledge of the CFR (and how rules should be implemented) and know the intended meaning of words and not some medieval, obtuse and obscure use. As I said, there are too many truly bizarre mental gymnastics that these political hacks go through to justify their defense of government actions and stupidity. As a case in point, a New Mexico man was recently forced to undergo strip searches, x-rays and enemas because of a "suspicion" of drug possession. None were found. If this were done to me, I would make someone pay very dearly instead of conducting business as usual. Recent USSC decisions, such as regarding permission of strip earches suggest that this is OK. This is flat out wrong.

There are a large number of examples that I could go through, but if you don't get the idea by now, you never will.

Posted by: albeed | Feb 26, 2014 10:08:12 PM

I'm with albeed here!

"None were found. If this were done to me, I would make someone pay very dearly instead of conducting business as usual. Recent USSC decisions, such as regarding permission of strip earches suggest that this is OK. This is flat out wrong."

If that had been me the state of new mexico would be missing a few cops and at least one dr. then I'd be going after whatever fuckup judge who gave the order along with anyone who had a problem with my removing the little shits!

Posted by: rodsmith | Feb 28, 2014 1:00:40 PM

"[F]amed defense lawyer" Paul Bergrin started out as a state prosecutor in New Jersey, then went on to serve as an Assistant United States Attorney under Alito and Chertoff. I suppose it's possible that all during that time he was a fine fellow and upstanding officer of the court, only to become corrupted later on by his turn to the dark side of criminal defense. But the smart money would probably be placed on a different bet.

In any case, it turns out that the NACDL's advocacy portfolio doesn't actually focus on the legal representation of rap stars, mafiosi, and former beauty queens who bounce checks. So their claim to be working in the public interest is perhaps a wee bit stronger than Bergrin's.

Posted by: Michael Drake | Feb 28, 2014 4:48:42 PM

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