Washington, DC (July 25, 2016) – On July 19, a three-judge panel of the U.S. Court of Appeals for the DC Circuit – Circuit Judge Srinivasan and Senior Circuit Judges Sentelle and Edwards – issued its decision in National Association of Criminal Defense Lawyers v. U.S. Department of Justice Executive Office for United States Attorneys and U.S. Department of Justice. The decision upheld the lower court's and the U.S. Department of Justice's (DOJ) denial of NACDL's Freedom of Information Act request that DOJ release to the public its Federal Criminal Discovery Blue Book, finding that the Blue Book is attorney work product that was prepared to protect DOJ from litigation and therefore it is protected from disclosure.
The DOJ's Office of Legal Education has published, but has not made available to the public, a text referred to as the Federal Criminal Discovery Blue Book in response to public furor over the "egregious misconduct" by 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. Despite obvious public interest in ensuring that DOJ had taken adequate measures to prevent further abuses, DOJ steadfastly refused to make the Federal Criminal Discovery Blue Book public.
In last week's appellate decision, Circuit Judge Srinivasan wrote that "…the Blue Book is entirely about the conduct of litigation. It is aimed directly for use in (and will inevitably be used in) litigating cases. Its disclosure therefore risks revealing DOJ's litigation strategies and legal theories regardless of whether it was prepared with a specific claim in mind." In a separate concurrence joined by Senior Circuit Judge Edwards, Senior Circuit Judge Sentelle wrote:
I concur in the decision of the majority, not because I believe it to be the correct result, but because I am compelled to do so by precedent….The purpose of the Freedom of Information Act is to serve "the citizens' right to be informed about what their government is up to." [citation omitted.] There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people…. It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. In short, I join the judgment of the majority, not because I want to, but because I have to.
NACDL's report Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School, exposes the problem of non-disclosure and late disclosure in criminal cases as significant; in addition to legislation codifying prosecutors' Brady obligations, the report calls for courts to do more to address this issue.
NACDL President E.G. "Gerry" Morris said: "The Department of Justice told Congress it did not need to enact legislation to protect the American people from discovery abuse by federal prosecutors. They told Congress that the Department's new Criminal Discovery Blue Book 'comprehensively covers' the law, policy and practice of prosecutors' disclosure obligations. Ever since, though, the DOJ has been fighting tooth and nail to keep its handbook on disclosure a secret from the American people it's supposed to protect. NACDL most certainly intends to seek a rehearing en banc in this case."
As set forth in the Complaint filed on February 21, 2014, 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.
Contrary to what DOJ told Congress, the ruling and DOJ pleadings suggest that the Federal Criminal Discovery Blue Book contains strategies for avoiding discovery. Indeed, the Court, which, unlike Congress, reviewed the text, said that its "in camera review of the Blue Book confirms that the [DOJ] affidavits accurately describe the Book and its contents[,]" and therefore it qualifies for the work-product privilege.
NACDL is represented in this matter by Kerri L. Ruttenberg, a partner in the Washington, DC, office of the Jones Day law firm, as well as her associates Yaakov M. Roth and Julia Fong Sheketoff, also of Jones Day.
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NACDL was supported in this appeal by three amicus curiae. Friend-of-the-court briefs were filed by (i) 63 law professors from across the nation, (ii) the Constitution Project and the Innocence Project, and (iii) the American Civil Liberties Union (ACLU), ACLU of the Nation's Capital, and the Electronic Frontier Foundation (EFF).
Additional court papers, including briefs, exhibits, and the decision below, among others, are available at: https://www.nacdl.org/BlueBookFOIALitigation/.
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