DOJ Opposes Legislating Discovery Reform but Declines to Disclose Its Own Federal Criminal Discovery Blue Book; Nation’s Criminal Defense Bar Filed Federal Suit Today
Washington, DC (Feb. 21, 2014) – In response to the public furor over the "egregious misconduct" by Department of Justice (DOJ) prosecutors in the case of the late Senator Ted Stevens, whose conviction was vacated after post-trial investigations revealed that prosecutors had withheld significant exculpatory evidence from the defense, DOJ’s Office of Legal Education published, but has not made available to the public, a text referred to as the Federal Criminal Discovery Blue Book. In December 2012, the National Association of Criminal Defense Lawyers (NACDL) filed a Freedom of Information Act (FOIA) request with the DOJ seeking the disclosure of the Federal Criminal Discovery Blue Book, which was denied in February 2013, purportedly on various privilege-based and law enforcement grounds. NACDL appealed that denial in April 2013, and was denied again in June 2013.
As set forth in the Complaint filed today in the U.S. District Court for the District of Columbia, during a series of congressional hearings concerning prosecutorial misconduct in Sen. Stevens’ case:
…DOJ asserted that federal legislation was unnecessary to prevent future discovery abuses because it had instituted various internal reforms. During the hearings, DOJ asserted it had implemented "rigorous enhanced training" to ensure that “prosecutors and agents [have] a full appreciation of their responsibilities” under federal law. Statement for the Record from the Department of Justice: Hearing on the Special Counsel’s Report Before on the Prosecution of Senator Ted Stevens Before the S. Comm. on the Judiciary, 112th Cong. 3 (2012) ("Statement for the Record"). As part of this effort, DOJ stated that it had created a "Federal Criminal Discovery Bluebook" that "comprehensively covers the law, policy, and practice of prosecutors' disclosure obligations" under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Id. at 4. According to DOJ, the Blue Book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal." Id.
To date, DOJ declines to disclose this text.
NACDL President Jerry J. Cox said: "The public has every right to know what is in the DOJ’s Federal Criminal Discovery Blue Book. 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. 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."
Of course, the case of Sen. Stevens is but one instance, albeit a very high-profile one, in which the rights of accused persons in America’s criminal justice system have been violated by prosecutors' failure to discharge their duty to disclose favorable information to the defense. The problem is well-documented and has been the subject of recent coverage and editorials by leading American newspapers, including the Los Angeles Times, whose editorial board in late December 2013 endorsed NACDL’s model discovery reform legislation in "Editorial: Don’t ignore the Brady rule: Evidence must be shared." And in January 2014, the New York Times ran "Editorial: Rampant Prosecutorial misconduct," explaining that "fighting prosecutorial misconduct is not only about protecting the innocent," but also preserving public trust in the justice system and the foundation of the rule of law.
In 2012, NACDL’s Task Force on Discovery Reform drafted model legislation that would require disclosure of all evidence favorable to the accused, regardless of any assessment of whether the evidence was material. This approach was embodied in the Fairness in Disclosure of Evidence Act, federal legislation introduced in 2012 by Senator Lisa Murkowski (R-AK), with bipartisan co-sponsorship and support from a broad coalition ranging from the ACLU to the U.S. Chamber of Commerce. NACDL has undertaken a number of research and advocacy projects to support this important measure. NACDL is likewise supporting the efforts of its state affiliates -- through advocacy, resources, and model legislation -- to enact open-file discovery rules and legislation.
Kerri L. Ruttenberg, a partner in the Washington, DC office of the Jones Day law firm, is lead counsel to NACDL in this matter and is working with a team of lawyers from her firm.
A complete copy of NACDL’s April 26, 2013, appeal to the DOJ, together with NACDL’s December 20, 2012, FOIA Request and DOJ’s February 28, 2013, denial thereof (Exhibits A and B to that appeal, respectively) are available here. DOJ’s June 25, 2013, denial of NACDL’s appeal is available here. And a complete copy of the complaint filed today, February 21, 2014, in the U.S. District Court for the District of Columbia is available here.
Ivan Dominguez, Director of Public Affairs and Communications (202) 465-7662 or firstname.lastname@example.org.