Washington, DC (Dec. 20, 2016) – Today, the U.S. Court of Appeals for the DC Circuit denied NACDL's petition both for a rehearing and en banc review following the July 19, 2016, decision of a three-judge panel of that court 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 July 19 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. That said, the three-judge panel did modify their July 19 opinion so that an amended opinion now calls for the matter to be remanded to the district court "for an assessment of whether the Blue Book also contains non-exempt policy statements amenable to reasonable segregation" from what the DOJ and the Court have said is privileged attorney work product contained in the Blue Book that is not subject to disclosure.
The 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 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 has steadfastly refused to make the Federal Criminal Discovery Blue Book public.
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.
"As the Supreme Court recognized in Brady v. Maryland, fundamental fairness requires the government to disclose evidence favorable to the accused," said NACDL President Barry J. Pollack. "Despite DOJ's failure to do so in the prosecutions of the late Senator Ted Stevens and in many other cases, DOJ has refused to tell the public what it is doing to prevent a repeat of these failures. NACDL is pleased that today the Court of Appeals did not fully accept DOJ's intransigence and signaled that DOJ ultimately may be ordered to reveal its policy regarding disclosure of evidence in criminal prosecutions. DOJ should not continue to litigate in an effort to hide its policies from the public. The Department should release the Blue Book immediately."
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 Senator 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 the Blue Book "consists of protected attorney work product."
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.
NACDL was supported in its appeal to the DC Circuit 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).
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Additional court papers, including briefs, exhibits, and the decision below, among others, are available at: https://www.nacdl.org/BlueBookFOIALitigation/.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.