President's Column: Discovery

Discovery Edward A. Mallett President's Column June 2001 7 Timothy McVeigh's stay of execution, based on the revelation of 3000-plus pages of new reports, was swiftly followed by calls for a top-to-bottom study of the FBI. Various Senators promised more congressional oversight, based on apparent mish

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Timothy McVeigh's stay of execution, based on the revelation of 3000-plus pages of new reports, was swiftly followed by calls for a top-to-bottom study of the FBI. Various Senators promised more congressional oversight, based on apparent mishaps in virtually all the FBI's recent high- profile cases.

“No thank you,” we say. Congressional hearings would be just another whitewash. The McVeigh fiasco is a dramatic demonstration that discovery laws need to be changed. What is unusual is that Timothy McVeigh got the extra month of life. The usual defendant gets nothing. Most often, the story goes like this:

The Judge: “I assume the open file policy applies to this case.” The Prosecutor: “Here, read the file.”

Defense Counsel to Defendant: “We don't need to file motions because the prosecutor is opening the file. We can see everything they've got.”

Weeks later, the witnesses start remembering stuff — incriminating details that are not in the police reports. There were conversations that were never reported to the DA, late-filed reports and physical evidence that didn't get logged in.

If a witness contradicts what's in the “official” police report, the judge says “You can't impeach the witness with a report written by someone else” — the witness never adopted the statements quoted or paraphrased in the report — it's “hearsay.”

The court generously suggests you call the miscreant officers(homicide, robbery, or auto theft detectives, etc.) as “defense witnesses”when you put on the case. Call police officers on the defense side of the case? Well, that's a recipe for disaster.

Maybe the prosecutor says: “I met with the officers Friday afternoon and all day Saturday. There are some supplemental reports. You can read them at the lunch break.”

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You say “Objection! Move to suppress the new witnesses and testimony about newly discovered facts.”

The court says, “Overruled. Would you like an extra 15 minutes for lunch? [There's no violation of a court order here.”]

There's the “open file.” And then there is all the stuff that didn't get into the file. Our confidence in the promises and pride exuded by prosecutors talking about the “open file” too often results in suppression of very significant facts that, if known by the defense, would dramatically change the calculus of plea-bargaining as well as trial. Recent events prove that police often withhold important information.

No matter what the causes, NACDL's legislative and litigation strategy has a proposal for dealing with these scandals: Change the discovery laws. We hope that federal reform would be a model for the states. We begin with one common sense improvement: There should be a pre-trial disclosure of all witnesses statements and witness agreements. Counsel should decide what might be useful to the defense. Police need to believe that failure to obey court orders can result in a severe remedy — exclusion of evidence and, possibly, dismissal of charges. The promise of Kyles v. Whitley, 115 S. Ct. 1555 (1995), stating that prosecutors must require each law enforcement agency to give them everything, should be enforced.

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Third, courts should require disclosure of whatever “index” or “table of contents,” printed or electronic, the government has used to organize cases involving voluminous witness interviews and business records. The DOJ often collects rooms of boxes of paper and hundreds of hours of tapes and organizes all of it. It's just not fair for the government to have the benefit of a multi-year, well-staffed investigation then force the defense lawyers to re-inventory and organize where the work has already been done.

Second, we need to amend the rules to allow depositions of essential witnesses whose facts or opinions may be in dispute. The burden should be on the prosecution to show that a deposition notice is not issued in good faith. I don't know why the prohibition of depositions has to be the general rule. Florida permits depositions as a matter of right, and the world of criminal prosecution and defense still goes on much like everywhere else.

Give us access to the facts, we say, and we can provide for a better defense. Americans need to develop a new attitude: That the freedom and families and fortunes and reputations of litigants in criminal cases are entitled to as much procedural protection as the law gives the parties in civil cases, where property and money — but never the penitentiary and lethal injection — may be at stake.

I would like to see us all asking the judge to order pretrial disclosure of offense reports, asking for that inventory and moving for depositions. If one lawyer does it on their own, there is the risk of ridicule for not doing things as always. Together, we can be a movement.

Meanwhile, file your motions, request a hearing, and get a ruling. What's good for the defense is what's not in the open file.