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Any sanction for the government’s failure to turn over documents in U.S. v. McVeigh should not be based on whether Timothy McVeigh could still be found guilty beyond a reasonable doubt. It is evident that he could. But while we may not doubt the reliability of the verdict, we should doubt the degree of due process in our system. But rather than “tsk tsk” the FBI and the federal prosecutors — who were in fact acting in a manner consistent with federal discovery requirements — we should condemn the current state of federal law under which prosecutors are not required to give defendants witness statements and reports in advance of trial. McVeigh’s case was unusual because the prosecution agreed to give the defense information that it was not entitled to receive. Although Senator Orrin Hatch, R-Utah, proclaimed during Senate hearings on the issue that “every criminal defendant has the right to these types of materials and we’ve got to live up to our responsibilities,” that is not the true state of discovery in the federal system — though it should be. Under the 1957 Jencks Act, a witness’s prior statements or reports may not be subject to subpoena, discovery or inspection by the defense until after the witness testifies on direct examination. 18 U.S.C. 3500. NO ENTITLEMENT Rule 16 of the Federal Rules of Criminal Procedure governing discovery specifically states that “this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the attorney for the government or any other government agent investigating or prosecuting the case. Nor does the rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. Section 3500.” Rule 16(a)(2). A person accused of a noncapital federal offense is not even entitled to a list of the prosecution’s witnesses before trial. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). The agents’ investigative reports said to be the bulk of the McVeigh documents are investigative reports that contain statements of individuals who apparently did not testify. These reports would not ordinarily be discoverable by the defense. At most, the reports would be turned over if these witnesses actually took the stand and then only after direct examination. If the statements in the reports do not relate to the subject matter of the direct testimony, the reports need not be given to the defense at all. (Of course, if the reports contain information tending to exculpate the defendant or that could be used to impeach government witnesses, the prosecution is required to turn the reports over pursuant to Brady v. Maryland, 373 U.S. 83 (1963).) NORMAL PRACTICE It may seem shocking that the documents in McVeigh were found in a canvass of records done in anticipation of the execution of his sentence and not in anticipation of the trial. Federal prosecutors and FBI agents operate in a system that does not require such “due diligence.” These prosecutors are accustomed to keeping their files close to the vest for strategic reasons having more to do with winning and losing and less to do with justice and fairness. Although there is nothing in the law that prevents prosecutors from turning over files, the reality is that it often takes a high-profile case such as McVeigh to demonstrate the necessity and importance of such disclosure to assure due process. Requiring a person facing loss of life or liberty to defend himself blindfolded against the awesome power of the United States government is not due process. Federal discovery rules should be dusted off and amended to provide the defense with all witness names, statements and reports well in advance of trial. If the government has the evidence to convict a defendant beyond a reasonable doubt, it should have nothing to hide. For those extremely rare cases where there is a specific compelling interest for nondisclosure, the prosecution can seek an exemption from the court, but the exception should not make the rule. How fitting if the sanction for the government’s failure to provide the McVeigh documents turned out to be amended discovery rules requiring federal prosecutors to provide such documents to all defendants in advance of trial, regardless of penalty or press interest. That way, we as a society could truly “live up to our responsibilities.” Inga L. Parsons is a clinical law professor in the Federal Defender Clinic at the New York University School of Law.

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