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A recent precedent set by the Third District Court of Appeal has the San Francisco public defender predicting havoc, and fighting to keep it off the books. Jeff Adachi filed a request Tuesday to depublish Roland v. Superior Court, 04 C.D.O.S. 10245, arguing that the fallout will infringe on lawyers’ work-product protections, discourage investigation and turn trial attorneys into impeachment witnesses. The Third District’s November decision concluded that defense and prosecution witnesses’ oral statements before trial are subject to discovery, even if they weren’t written down or taped. “We don’t know the impact of Roland at this point,” Adachi concedes. “So we are taking a pre-emptive strike.” Some prosecutors say they welcome the ruling. California District Attorneys Association Executive Director David LaBahn claims it closes a loophole in state discovery law. The Roland case started in El Dorado County, with a superior court order instructing Taneka Roland’s lawyer to give prosecutors “reports of unrecorded oral statements” from all of the intended defense witnesses except Roland. The trial court said the defense could provide written reports or just summarize the statements for opposing counsel over the phone, according to the Roland opinion. Roland had tried to persuade the justices that state law only requires defense attorneys to disclose relevant videotaped, tape-recorded or written witness statements. But the panel took a different view, calling on dictionaries, grammar, punctuation and voter intent to interpret state law on discovery that says the defense has to disclose “any relevant written or recorded statements of those persons, or reports of the statements of those persons.” The language requires, the court concluded, that defense lawyers disclose “unrecorded oral statements relayed to defense counsel in an oral report by a third party, such as an investigator, and oral statements made by the person directly to defense counsel.” The same goes for prosecutors, the court added, noting that the state law applies similar language to them. That interpretation, the court wrote, “facilitates the ascertainment of the truth at trial.” The public defender’s office argues the decision will accomplish just the opposite, by creating a “disincentive” to conduct full investigation and thorough interviews. The office also contends Roland will lead to breaches of the work-product doctrine. Attorneys could be required to turn over statements made during preparatory and mock examinations of witnesses, which would disclose strategy and specific areas of inquiry, Adachi argues in his letter. And, he claims, lawyers could be called as impeachment witnesses, “if counsel is unable to recall what the witness said on a particular occasion, or recalls the witness’s statements incorrectly.” Adachi said Thursday he hasn’t yet noticed attorneys on either side citing Roland in court. But San Francisco District Attorney Kamala Harris says her prosecutors expect more from discovery in light of the Roland opinion. And though the ruling applied similar logic to prosecutors, she doesn’t share Adachi’s concerns. The opinion is “consistent with the whole point of this concept we call reciprocal discovery,” she said, noting that the law already required her prosecutors to hand over anything exculpatory. LaBahn, head of the state prosecutors group, contends Roland helps level the playing field. Prosecutors have long been obligated to divulge all exculpatory information, but defense attorneys could avoid handing over inculpatory information by not writing it down, he asserts. “Many trial lawyers, and I will point to the other side, want to make it a game instead of a search for the truth,” LaBahn said. “This makes it a little more fair.” The Third District opinion, by Justice Arthur Scotland, also warned that “counsel is not entitled to withhold any relevant witness statements from the prosecution by the simple expedient of not writing them down.” Justices Richard Sims and Fred Morrison concurred. The decision has generated some buzz in Southern California, too. “Our concern � is that it won’t be applied in an even-handed manner,” said Albert Menaster, who heads the Los Angeles public defender’s appellate branch and contends judges already take a harder line against the defense. “It seems to us, often in the discovery process, that the prosecution violates discovery and nothing happens to them,” the deputy public defender asserted. “We’re sanctioned and threatened and found in contempt all the time.” In light of Roland, Southern California criminal defense attorney Scott Ciment says he felt obligated to tell prosecutors last month about an oral statement “just to cover my bases.” The decision “is not specific to one side; it cuts both ways,” said Ciment, of Newport Beach’s Black & Ciment, who co-chairs the legislative committee for California Attorneys for Criminal Justice, a statewide criminal defense lawyers group. Though CACJ hasn’t taken a formal position, he thinks “it creates more problems than it solves.” The Third District justices, for their part, say Roland couldn’t come up with “any cogent reasons” why discovery should be more limited. If an attorney’s notes reflect his mental process, he can seek a protective order or in camera review to get them exempt from discovery as work product, the justices wrote. And if the defense would be forced to reveal something inculpatory, the court added, it could always choose not to call the witness.

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