Inside NACDL: Discovery Reform: The Time for Action Is at Hand

In March 2012, Sen. Lisa Murkowski introduced a bill in Congress called the Fairness in Disclosure of Evidence Act of 2012. The bill would codify the duty of the government to promptly disclose evidence that is favorable to the defense. If passed, this legislation may provide strong impetus to a discovery reform effort on the state level.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Last year NACDL took tangible steps to ensure that an accused person has prompt access to favorable information, at least in federal criminal proceedings. The NACDL Board of Directors adopted a model statute crafted by the Task Force on Discovery Reform to create a new statutory obligation to put teeth into a constitutional obligation that has been circumvented with alarming frequency.1 Those efforts are about to bear fruit. Before describing the emerging developments, it is important to put this issue into context. Brady violations, i.e., the suppression of favorable evidence, are merely the most egregious example of a far more pervasive problem in the nation’s criminal justice system.

It is long past time to reform the narrow and constrictive discovery practices that typify criminal defense practice in most of the nation. Trial by ambush practices that leave the defense clueless as to the identity, background and reliability of key witnesses until the eve of trial, or later, must end. These practices not only ambush individual defendants, they ambush justice.

Delayed disclosure impedes the capacity of attorneys to engage in informed plea bargaining on behalf of their clients and distorts their ability to give the best advice. Worse, it turns an eventual trial into more of test of an individual attorney’s ability to think and react instantaneously, rather than a thoughtful and measured assessment of the facts and exhaustive examination of the credibility of witnesses. And in many cases, it requires the fact-finder to make crucial determinations deprived of information that could have tipped the balance between a verdict of guilty or not guilty.

The nation is finally awakening to a fundamental truth that defense lawyers learn from the first moment they walk into a courtroom to represent an accused person — restrictive criminal discovery practices are inefficient and risk substantial injustice. A rash of recent high visibility cases has exposed practices that practitioners recognize as far too ordinary. This problem, which has long been an obscure defect in our criminal justice system, is now gaining widespread attention.2 

Illustrative State Cases

When one considers the facts that have emerged in some of these high visibility cases, it is not hard to see why discovery abuse is now on the public radar screen. Consider the case of Michael Morton. He was wrongfully convicted of bludgeoning his wife to death in 1986 as she lay in her bed. Morton served 25 years in prison. Exonerated in October 2011 after DNA confirmed his innocence, it came to light in December that the prosecutor in Morton’s case appears to have violated his disclosure obligations under both Brady and a direct court order in the case. The prosecution is alleged to have withheld certain exculpatory police reports and notes from the lead investigator in the case. These included items such as a transcript of a phone call in which Mrs. Morton’s mother reported to a sheriff’s deputy the account of her three-year-old grandson, the Mortons’ child, having seen someone other than his father, someone described as a “monster,” kill his mother. It also included police reports reflecting the Mortons’ neighbors having described a man in a green van parked behind their house. In February, District Court Judge Sid Harle requested that a court of inquiry be convened because the court found probable cause to believe, among other things, that the prosecutor “falsely represented to the defense and the district court on the eve of trial that the state had no favorable evidence to disclose.” Additionally, in February a grand jury returned a capital murder indictment in the Morton murder against another individual whose DNA tested as a match with DNA found on a bandana mixed with Mrs. Morton’s blood and hair some 100 yards from the Morton home. Read more about Morton’s case in NACDL News (page 12).

Another case that garnered considerable attention was the lamentable decision by a closely divided Supreme Court upholding prosecutorial immunity in an egregious case of discovery abuse by prosecutors in Orleans Parish in Louisiana.3 John Thompson was convicted of murder and sentenced to death after a trial at which he did not testify because he had recently been convicted of an unrelated armed robbery. It turned out that he was innocent of that robbery. Blood-stained clothing that would have excluded him as the perpetrator was withheld from the defense. The evidence came to light just a month before his scheduled execution. After the prosecution acknowledged the Brady violation, Thompson was granted a new trial on the murder charge, and the jury acquitted him. John Thompson spent 18 years in prison, 14 of which were served on death row.

This term, the Supreme Court considered yet another case involving a blatant discovery violation in Louisiana. 4 Juan Smith was convicted of first-degree murder for the killing of five people during an armed robbery. A single witness, Larry Boatner, linked Smith to the crime. No other witnesses and no other evidence implicated him. Years after his conviction was affirmed on direct appeal, during post-conviction proceedings files that had never been made available to the defense revealed that on the night of the murder the lead investigator had obtained a statement from Boatner that he “could not … supply a description of the perpetrators other then [sic] they were black males.”5 The investigator also had handwritten notes of an interview with Boatner taken five days after the event in which the witness said he “could not ID anyone because [he] couldn’t see faces,” and “would not know them if [he] saw them,” and a typewritten version of the same conversation recorded that Boatner “could not identify any of the perpetrators of the murder.”6 

Incredibly, these statements from the only witness to connect Juan Smith to the crime were not provided to the defense at the time of the trial. That is unadulterated discovery abuse. It is also a fairly clear-cut violation of the constitutional obligation to provide favorable evidence to the accused as recognized in the Supreme Court’s decision in Brady v. Maryland.7 

The Supreme Court agreed with that obvious truth in an 8-1 decision issued this past January.8 

There must be broad discovery reform on the state level. To that end, NACDL’s Task Force on Discovery Reform is now working to craft model legislation that can provide a platform for a national reform effort. It is too soon to predict what shape this model legislation will take, but it is almost certain that any meaningful reform must provide for an “open file” approach that gives the defense full access to police reports, forensic investigation and witness statements, subject to narrowly prescribed limitations in cases of actual and demonstrable necessity, and with an adequate opportunity to litigate effectively any claim that discovery must be withheld.

Federal Discovery Abuse

Of course, this problem is not limited to the states. Three years ago, the disclosure of massive discovery abuse prompted Attorney General Eric Holder to dismiss the corruption charges of which Sen. Ted Stevens had been wrongly convicted. Sen. Stevens’ ordeal cost him his reputation and his Senate seat. The prosecutorial suppression of obvious Brady material prompted U.S. District Judge Emmet G. Sullivan to order an investigation, the results of which were released to the public on March 15, 2012. In his preliminary order, in which he ruled on motions to seal the investigative report, Sullivan noted the report concluded that “the investigation and prosecution of Sen. Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”9 

Although Attorney General Holder’s decision to dismiss the conviction was laudable, the Department of Justice (DOJ) has not embraced meaningful change. Following the Stevens fiasco, DOJ convened a working group to review its policies, practices, and training related to discover practices. As a result of that effort, then-Deputy Attorney General David Ogden issued three memoranda on Jan. 4, 2010. Shortly thereafter, I analyzed those memoranda and described the response as “tepid at best.”10 Most significantly, I noted that the “advisory” memoranda did not move beyond the Brady “materiality” standard, upon which prosecutors routine rely to make a unilateral and subjective determination that favorable evidence need not be disclosed. For example, in the Stevens case, the prosecutors repeatedly tried to justify their withholding of favorable evidence by arguing that it was immaterial.11 

In yet another case of discovery abuse, a major prosecution was dismissed by an irate judge on the West Coast. In the Foreign Corrupt Practices Act prosecution of Keith E. Lindsey, Steve K. Lee and Lindsey Manufacturing Company, U.S. District Judge A. Howard Matz of the Central District of California dismissed the convictions of all defendants based on numerous instances of misconduct by the government including, inter alia, “recklessly fail[ing] to comply with its discovery obligations.”12 Those failures specifically related to the government’s dereliction in not providing timely disclosure of favorable evidence and its efforts, yet again, to rely upon its unilateral and subjective determination that the evidence in question was not material as the courts have defined that term.13 

NACDL’s Proposed Reform

Another development is also likely to propel reform efforts. In his order issued Feb. 8, 2012, Judge Sullivan announced that he would order the release of the Stevens investigative report on March 15, 2012. Judge Sullivan noted that “the public has a First Amendment right of access” to the report and “it would be a disservice and an injustice to withhold the results of the report.” “The public,” Judge Sullivan wrote, “cannot monitor the misconduct in the Stevens case without access to the results of Mr. Schuelke’s investigation, which are detailed in his report.”14 In fact, the report released on March 15 provides a 500-page record of pervasive Brady violations.

Against this background, a broad ideological array of groups and legislative leaders recently signaled support for the salient points contained in NACDL’s draft reform legislation. On March 15, Sen. Lisa Murkowski introduced the Fairness in Disclosure of Evidence Act of 2012 in Congress. The bill would codify the duty of the government to promptly disclose favorable evidence. It will be a continuing duty, subject to reasonable and limited exceptions for classified information and fully litigable applications for protective orders. And it will provide courts with broad discretion in fashioning meaningful and effective remedies for violations of the disclosure obligation. Most importantly, the legislation will provide that on the appellate level, a harmless error rule may not be applied unless the court is persuaded beyond a reasonable doubt that the nondisclosure did not affect the substantial rights of the defendant. In essence, the legislation will restore the focus on getting objectively favorable evidence to the defense in time to make use of it in the original proceedings, rather than permit the prosecution to withhold the evidence based upon its subjective view that the evidence is not “exculpatory.” Importantly, when violations occur, it will shift the burden in the appellate context, vastly raising the stakes for prosecutors who choose to gamble that a reviewing court will accept their claim that the evidence was not favorable to the defense.

If adopted, this legislation will go a long way toward eliminating the kinds of abuses noted in the cases discussed above. Also, it may provide strong impetus to a national discovery reform effort on the state level. No one should have any illusion as to the difficulty of securing eventual passage. DOJ will likely resist with all its might. But in this case, might does not necessarily make right. The many examples of abuse should overcome government resistance. NACDL will do all it can to secure this important reform, and the Association will need the help of every member and every person throughout the profession who cares about justice in the nation’s criminal courts.


  1. Read the draft statute and commentary at
  2. See, e.g., Carrie Johnson, Court Ruling Reignites Debate Over Sharing Evidence, National Public Radio, Jan. 12, 2012; Robert Fickman, Stop the Prosecutorial Misconduct, Houston Chron., Dec. 30, 2011; Editorial, Justice and Prosecutorial Misconduct, N.Y. Times, Dec. 29, 2011; Amanda Coyne, Could Botched Ted Stevens Prosecution Prompt Federal Legal System Reform?, Alaska Dispatch, Nov. 28, 2011; Editorial, Defending the Brady Rule, L.A. Times, Nov. 21, 2011.
  3. Connick v. Thompson, 131 S. Ct. 1350 (2011).
  4. Smith v. Cain, 132 S. Ct. 627 (2012).
  5. Id. at 629
  6. Id. at 630.
  7. Brady v. Maryland, 373 U.S. 83 (1963).
  8. Smith v. Cain, supra note 4.
  9. In re Special Proceedings, Misc. No. 009-0198 (EGS), U.S. District Court for the District of Columbia, order dated Feb. 8, 2012, at 4 (
  10. See Norman L. Reimer, Federal Discovery Reform: DOJ’s Baby Steps Are Inadequate, The Champion, March 2010 at 7.
  11. In re Special Proceedings, supra note 9, at 20-21.
  12. United Statesv. Enrique Faustino Aguilar Noriega, et al., CR 10-01031 (AHM), order dated Dec. 1, 2011, at 1-2 (
  13. Id. at 29-34. Judge Matz specifically rejected the government’s interpretation of the materiality requirement articulated by the Supreme Court in Kyles v. Whitley, 514 U.S. 419 (1995).
  14. In re Special Proceedings, supra note 9, at 53-43.

Explore keywords to find information

Featured Products