Several criminal defense lawyers, a federal judge and a Justice Department policy official gathered in Washington, D.C., last week to examine prosecution disclosure obligations, a discussion that comes amid a widespread call for discovery reform.
"In terms of the question about whether or not there is a problem, I will give you my best lawyerly answer -- no and yes," said DOJ attorney Jonathan Wroblewski, director of the Office of Policy and Legislation in the Criminal Division. "There is no reason to believe that this generation of prosecutors is any more ethically challenged than previous generations of prosecutors."
Justice Department officials who have reviewed available data conclude there is no widespread misconduct when it comes to prosecutors turning over favorable material to defense lawyers, Wroblewski said. But "when you have 6,000 Assistant U.S. Attorneys prosecuting 90,000 cases a year, errors and misconduct will occur and it does occur," said Wroblewski, who is part of the DOJ team that reviews and develops policy in the criminal justice arena.
Wroblewski perhaps felt like he was drowned out during the panel discussion Friday at the D.C. Judicial and Bar Conference. The other panelists -- Williams & Connolly partner Robert Cary, Sandra Levick of the D.C. Public Defender Service, David Schertler of Schertler & Onorato and Judge Reggie Walton of the U.S. District Court for the District of Columbia -- took the position that there is a national problem regarding prosecution disclosure obligations.
Several noted high-profile cases where alleged government misconduct adversely impacted the prosecution, including the Ted Stevens case and the manslaughter prosecution of a group of Blackwater guards charged with killing Iraqi civilians. Levick noted several recent cases in D.C. Superior Court.
"I think it can't be denied that there is a problem," Walton said. "I think the examples have illustrated that."
Walton, however, said he doesn't think intentional misconduct -- where prosecutors purposefully shield information from defense lawyers -- is the norm. He blamed inexperience, saying that prosecutors often don't remain prosecutors for long for financial reasons.
Walton, a former public defender, also said a "systemic problem" arises from the fact that many prosecutors lack the perspective of a defense lawyer. "A lot of prosecutors see things and don't know exactly what they have because they've never been on the other side and haven't looked at it from that perspective," he said.
Schertler and Cary, who was a lead defense attorney for Stevens, praised the Justice Department's effort to combat discovery violations -- applauding DOJ's issuance of guidance memos in January as a step in the right direction. DOJ officials do not support open-file discovery, saying that witness safety and national security are chief concerns about a more open disclosure policy.
The memos, which flow from the botched prosecution of Stevens, call for broad and timely disclosure. The memos are part of what the DOJ calls a "comprehensive" approach to reform, which includes increased training and the development of a disclosure handbook for prosecutors.
"Prosecutors have yet to embrace Brady as an integral part of the process. I still think prosecutors as a whole view Brady as a thorn in their side -- as something that they don't want to deal with but they have to deal with it," Schertler said. "Until prosecutors get beyond that attitude, and view the process as one that's got to be more fundamentally fair, we're always going to have a problem."
Cary said he supports open-file discovery. "When you are dealing with a case with lots of information, why not turn it all over -- good and bad?" he asked. "I don't think the witness safety issue and national security issue should be used as an excuse not to have open-file discovery in all cases."
Walton said any change to Rule 16, which governs discovery in criminal cases, should eliminate the "materiality" requirement -- that is, the prosecution's determination that since a particular document is "material" to the defense it should be turned over.
"I think materiality should not be a factor that comes into play in assessing whether the information should be disclosed," Walton said. "If the department's position is still that position, I don't know why."
For certain cases where there is no potential for witness intimidation or threat to national security, the Justice Department should have open-file discovery, Walton said. "I think the reality is that if you don't have that then you are going to inevitably have potential Brady violations," the judge said.
Wroblewski of the Justice Department said the "countervailing values" of witness protection and national security call for keeping some information out of the hands of defense lawyers. "If you are a witness to a crime, your life does not become an open book," he said. "I don't think that everything that comes to the knowledge of the prosecutor necessarily should be turned over."
Levick, a lawyer in the Public Defender Service special litigation section, said courts have adequate safeguards to protect sensitive or confidential information.
"To advocate against advancements or a more liberal approach to Brady because of the unusual circumstance where there are security issues is a mistaken approach," Levick said. "We ought to deal with the vast majority of criminal cases."
This article first appeared on The BLT: The Blog of Legal Times.
