Defense Lawyers Continue to Pressure the Justice Department over Disclosure Rules

    26 February 2014

    On February 21, 2014, the National Association of Criminal Defense Lawyers (“NACDL”) sued the U.S. Department of Justice (“DOJ”) to obtain DOJ’s internal guidance regarding the government’s disclosure obligations to criminal defense lawyers.  The lawsuit follows a well-publicized denial of NACDL’s Freedom of Information Act request for the internal guidance, which is known as the “Federal Criminal Discovery Blue Book.”  The right to due process under the U.S. Constitution guarantees that information material to a defendant’s guilt or innocence must be disclosed by prosecutors.  The U.S. Supreme Court has consistently recognized this right since its landmark decision in Brady v. Maryland, 373 U.S. 83 (1963).

    The history of this dispute is rooted in the trial of the late United States Senator Ted Stevens (R-AK), and there is a lot at stake for both sides.  Senator Stevens was found guilty by a federal jury in the District of Columbia in the fall of 2008 for allegedly omitting thousands of dollars in gifts from federal disclosure statements.  The DOJ subsequently asked the court to void the guilty verdict due to concerns that exculpatory evidence had been concealed from Stevens’ defense team.  An outside investigation and a review by the DOJ’s Office of Professional Responsibility both concluded that exculpatory information had been withheld – though neither concluded that the failures in disclosure were intentional. 

    The DOJ responded to calls for discovery reform not by opposing changes to federal procedure rules but by promulgating new discovery guidelines and training programs within its ranks.  Defense lawyers and some judges have called for more formal disclosure obligations through amendments to the Federal Rules of Criminal Procedure and a system of remedies for violations.  It is worth noting that since the Stevens case, some high-profile charges and convictions have been thrown out following allegations of prosecutorial misconduct

    The right to obtain exculpatory evidence is critically important to defendants in criminal cases, and arguably to the integrity of a system of justice that embraces a defendant’s right to challenge the government’s evidence in a truly adversarial proceeding.  Are sweeping changes in the disclosure obligations for federal prosecutors on the horizon? It remains to be seen, but the recent lawsuit may be a key milestone in the development of this issue.