Joel Cohen
Joel Cohen (Handout)

In June, at a panel discussion held at the Stroock law firm, we hosted the five District Attorneys of New York City, who were to be interviewed on a variety of subjects—from stop and frisk, to term limits, to alternative sentencing programs, to the death penalty, to discovery abuses.1

Concerning discovery, the discussion invariably turned to “open file” discovery—meaning, an office policy whereby prosecutors would completely open their case files to the defense attorney, wheat, chaff and all. 2 Some of the district attorneys, understandably, albeit politely, balked. They raised the realistic concern that, particularly in the Internet era, it has become far too easy to intimidate prosecution witnesses and early discovery raises concerns about potential violence to the witnesses or informers. So, if the identity of a witness and his prior statements, including secret grand jury testimony, were turned over significantly in advance of trial, or even shortly before trial, the chances of the witnesses being intrusively investigated, or even harassed or threatened, would be compounded, resulting in potential impairment of the prosecutive function.

But at our forum, one of the district attorneys, Cyrus Vance of New York County, who is surely conscientious about concerns over prosecutorial fairness (as were all of them), mentioned the unquestioned reality that many of his line prosecutors, particularly if they trust the defense lawyer on the other side, actually do informally engage in some form of open file discovery. And with good reason beyond the collegiality involved in mutually trusting advocacy—meaning, if the case is strong, or at least strong enough, the defense lawyer will quickly come to the realization that his client has nowhere to go, and that accordingly a guilty plea is what he should strongly recommend to his client. Stated otherwise, transparency about a case’s merits promotes good law enforcement, and efficient resolution of the case. Or to paraphrase, “Let ‘em see everything, good and bad alike, and they’ll invariably quickly reach the conclusion that it’s time to bail out!”

Fair enough. But occupying the role of devil’s advocate, I basically asked, “Isn’t the defendant who is represented by an attorney whom the District Attorney’s office doesn’t typically trust not getting the ‘equal protection’ of the process?” Meaning, “is he being treated unfairly because he chose the wrong lawyer?” I must say, I didn’t articulate it in the constitutional terms I do here; I actually said “Isn’t that defendant getting screwed?” The answer was a succinct and definitive: “no.”

More directly, what Vance was saying was that no defendant is entitled under case law or statute to open file discovery3—it’s just that the defendant represented by a defense lawyer known and trusted by the district attorney’s office (or, more to the point, a particular assistant district attorney) is getting a more open process (or perhaps just an earlier “look”) because of that critical element of trust. And, Vance added, it’s also true that some of his assistants don’t engage in that open file process—no matter who the defense attorney may be. Some are totally “by the book” (my term), and provide what the law dictates in terms of discovery, but nothing more and nothing less—unless, of course, the judge directs otherwise, as some occasionally do. I didn’t pursue with the district attorneys the obvious reductio ad absurdum: “Isn’t it unfair to be stuck with a prosecutor who won’t give an inch more in discovery than is required, when the next guy on the docket is being prosecuted by a line assistant whose philosophy is to allow open file discovery?” Or, basically, open kimono.

So if Vance was correct—and indeed he is—that no defendant (or attorney) is entitled under law to open file discovery, are there any ethical restrictions that frown on a prosecutor, or prosecution office, according disparate treatment to defendants (or their lawyers), as in the scenario suggested above?

The Rook Decision

Enter Professor Bennett L. Gersh­man and his bible: Prosecutorial Misconduct.4 While he didn’t have a case directly on point, his book reported an Oregon case from the 1970s with a situation somewhat analogous to that presented in this discussion. In In re Rook,5 decided by the Supreme Court of Oregon, en banc, Roger Rook, the District Attorney of Clackamas County was accused of unethical conduct because he refused to offer a plea to 15 criminal defendants on the same basis as offered to another criminal defendant—a dismissal of charges and forfeiture of $50 bail—as long as they were represented by attorneys Phil Ringel and Ronald Thom. The criminal charges for all 16 people arose out of gambling violations occurring at the Oregon City Elks’ Lodge.6 Ringel was the lodge’s internal legal officer; when Thom, a former prosecutor, became co-counsel, he also became the lodge’s assistant internal officer.7

When Ringel and Thom learned that the one defendant represented by other counsel had been given a deal, they asked Rook whether the offer was available to their 15 clients. Rook explained at a meeting, immediately before the trial date, that he would not negotiate with Ringel and Thom because Thom was involved in “organized crime” and Ringel had said “bad things” about Rook.8 As a result of that meeting, the trial was postponed; the two “offending” lawyers, Ringel and Thom, withdrew from the case; a different lawyer, also a member of the lodge, was substituted for the remaining 15 defendants; and they all plea bargained—dismissal of charges and forfeiture of $50 bail for each.9

After the case was disposed of, three of the defendants filed a disciplinary complaint alleging “blackmail” on Rook’s part by virtue of this conduct. The Oregon Supreme Court chose not to address whether a defendant had a constitutional “right” to be represented by counsel of their choice but did discuss Oregon’s statute, which provided that “similarly situated defendants should be afforded equal plea agreement opportunities.”10 The court distinguished the right of a prosecutor to make discretionary decisions from his obligation to act ethically,11 and determined that Rook’s actions made him deserving of a public reprimand:

To approve of the conduct of the accused in this case would be to approve of a practice under which a prosecuting attorney could decide for himself, in cases involving more than one criminal defendant, which criminal defense attorneys he would deal with and which criminal defense attorneys he would refuse to deal with. He could enforce such a practice by the simple expedient of offering a plea bargain to one defendant and refusing to offer the same plea bargain to other ‘similarly situated defendants’ represented by other attorneys unless they discharged such attorneys. For a defendant represented by such an attorney to refuse to discharge him would subject that defendant not only to a trial, but to the hazard of the imposition of the maximum penalty in the event of conviction.12

Now, clearly, the circumstances presented in Rook—where the prosecutor refused to make the same deal he made with another solely because of his dislike of counsel—are far different than the case presented when a prosecutor agrees to open their files to one defense attorney but refuses to do so for another. The issue presented in Rook, however, does indeed raise questions.

So let’s assume that the prosecutor’s sole reason for the disparate treatment of two different defendants concerning open file discovery is because one’s defense lawyer has a reputation of always going to trial, whereas the second’s lawyer has a reputation for pretty much always having his client plead guilty to some lesser offense. Is there anything wrong with a prosecutor holding tight his discovery materials that frankly need not, under law, be turned over immediately—where he might gain a strategic trial advantage in holding his cards close to the vest when he has good reason to believe that lawyer will insist upon a trial, no matter what? And what about the district attorneys’ comments—when considering whether to employ an open file discovery policy, should a district attorney be concerned that a witness may be harassed given the prior track record of the defendant—or his lawyer, for that matter?

These hypotheticals are a far cry from Rook, where defendants were treated disparately purely because of animus. Rook’s actions had nothing to do with prosecutorial discretion; he allowed his personal dislike to rule his conduct so that his acts were prejudicial to the administration of justice. There’s a great divide between personal animus and exercising discretion based on trust and a defense counsel’s track record.

Dershowitz Weighs In

Now, commentators have in the past written about disparate treatment toward lawyers. Many years ago, in his book The Best Defense,13 Alan M. Dershowitz described one practice in the Southern District of New York—assume for these purposes that he was accurate—where the prosecutors maintained a list of “‘approved’ lawyers to whom it would refer cooperating or potentially cooperating defendants and witnesses” who could be “trusted to encourage their ‘clients’ to cooperate.”14 In contrast, some prosecutors kept lists of “hostile lawyers who generally recommend against cooperation with the government.”15 As Dershowitz explains it, potential defendants who might cooperate with the government were referred to lawyers who the prosecutor was reasonably sure would have their client make a deal.16 This, notwithstanding that prosecutors should remain neutral and typically should have no input into who represents a defendant.

In fact, Dershowitz tells us, the U.S. Attorney’s Office in the Southern District would subpoena grand jury witnesses from whom they sought “cooperation” on dates when court-assigned defense counsel who were reputed to strongly encourage their clients to cooperate with the government were working. So, if a lawyer known to typically be uncooperative was the “duty lawyer” on Monday, but a “let ‘em cooperate” lawyer was going to be “on duty” on Wednesday, the witness presumably wouldn’t be called until Wednesday. Obviously, this ploy was designed to get the government’s “we-need-cooperation-from-this-guy” cases assigned to a lawyer willing to play ball.17

Analysis

Assuming, hypothetically, that what Dershowitz described was actually being done—the prosecutors’ purpose was clear but would that have been an ethics violation, as was the case in Rook?18 Of course, what occurred might be viewed as abusive of the court’s regimen for randomly appointing lawyers. The prosecutor shouldn’t have a role in who is appointed to represent a would-be cooperator unless, of course, the lawyer already represents a target and the dual representation will likely result in a conflict. In that case, it would be a prosecutor’s duty to advise the lawyer and, failing action by the lawyer, the court.

Nonetheless, and although there was some disparate treatment implicated in the assignment process, the lawyers who were not on the government’s “approved” list were still getting appointed on the other days, and the defendants probably had no cause for complaint that they were not getting an able lawyer—just a lawyer who is likely to (but might not) try to forcefully persuade them to plead guilty and cooperate. One supposes that many of the defendants might have even been better off for having been appointed a lawyer who was willing to settle even though it meant forgoing a more lucrative fee for trial.

Conclusion

There can be no question that a defendant is entitled, under cases interpreting the Sixth Amendment, to the effective assistance of counsel; but that does not mean they are entitled to the most effective attorney.19 Likewise, no defendant (or target) is truly entitled to have a lawyer who will be well-treated (or even better-treated) by the prosecutor. The adversarial business is no different than life in general—people are treated differently. The problem arises, and legal ethics kick in, when lawyers—and, therefore, their clients—are discriminated against for arbitrary or untoward reasons.20

Accordingly, when a prosecutor, such as in Rook, discriminates against a defendant because he had the misfortune to hire a lawyer the prosecutor holds a grudge against, it may well be that it’s time to take a close look at the conduct in question. But a challenge based on a claim that a prosecutor may give one lawyer, but not another, a jump on discovery—discovery which the prosecutor is under no obligation to provide at that time—will probably fail.

Endnotes:

1. Stroock Government Relations Forum, “Meet the District Attorneys from All Five New York City Boroughs,” June 17, 2014.

2. 1 Crim. Prac. Manual §18.23; Daniel S. Medwed, “Brady’s Bunch of Flaws,” 67 Wash. & Lee L. Rev. 1533, 1557 (2010) (“prosecutors must turn over all evidence known to the government, exculpatory and inculpatory alike”); but see, United States v. Thomas, 981 F.Supp.2d 229, 239 (S.D.N.Y. 2013) (“…the Government cannot hide Brady material as an exculpatory needle in a haystack of discovery materials”); United States v. Hsia, 24 F.Supp.2d 14, 29–30 (D.D.C.1998). The U.S. Attorneys’ Office does not permit its attorneys to even use the term “open file” discovery, lest they neglect to produce a document. See Guidance for Prosecutors Regarding Criminal Discovery, DOJML RESOURCE MANUAL TI 9 NO 165 (“Prosecutors should never describe the discovery being provided as ‘open file.’ Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the ‘file’ is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g., agent notes or internal memos, that the court may deem to have been part of the ‘file.’”)

3. F.R.C.R.P. 16; N.Y.C.P.L. §240 et seq.; Brady v. Maryland, 373 U.S. 83 (1963); People v Vilardi, 76 N.Y.2d 67, 81 (1990) (Simons, J., conc) (“Whether an open file procedure is desirable or not, it is not the method under which the criminal justice system presently works.”)

4. Bennett L. Gershman, Prosecutorial Misconduct, 2d, §7.24, Thomson West.

5. In Re Complaint as to the Conduct of Roger Rook, 556 P. 2d 1351 (1976).

6. Id., at 1352.

7. Id., at 1353.

8. Id., at 1354.

9. Id., at 1354.

10. Id., at 1355, 1356; Oregon Revised Statute §135.405.

11. Id., at 1355.

12. Id., at 1356.

13. Alan M. Dershowitz, The Best Defense, Random House, Inc., 1982.

14. Id., at 401.

15. Id.

16. Id.

17. Id., at 401-402.

18. See note 7, supra.

19. U.S. Const., 6th Am; N.Y. Const., Art. I, §6; Strickland v. Washington, 466 U.S. 668 (1984); People v. Baldi, 54 N.Y. 2d 137 (1981); People v Modica, 64 N.Y.2d 828, 829 (1985) (“…the test being “reasonable competence,” not perfect representation…”)

20. See, Village of Willowbrook v. Olech, 528 U.S. 562 (2000); Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995) (“If the power of government is brought to bear on a harmless individual merely because a powerful state or local official harbors a malignant animosity toward him, the individual ought to have a remedy in federal court.”)