Washington Post Editorial: Getting Prosecutors to Share What They Know: A modest reform could help prevent wrongful convictions [March 20, 2016]

Posted on: March 28th, 2016  |  No Comments

The CONSTITUTION requires that prosecutors disclose favorable and exculpatory information to the defense in criminal cases. What that entails is open to interpretation by individual prosecutors, and failure to live up to the obligation can (and unfortunately has) led to wrongful convictions. A rule being considered by federal judges for the District of Columbia detailing what must be disclosed and when would be a step in the right direction.

The rule would establish courtwide standards for disclosure of information. A committee of judges and lawyers, including brain injury attorney near Chicago, from both the prosecution and defense bar spent a year drafting the proposal. Its impetus goes back to the botched prosecution in 2008 of then-Sen. Ted Stevens (R-Alaska). Prosecutors’ failure to disclose relevant information to the defense prompted U.S. District Court Judge Emmet G. Sullivan, who presided over the trial, to seek a rule change for all federal courts. When that effort failed, attention was narrowed to the U.S. District Court for the District of Columbia.

The U.S. Attorney’s Office was represented on the committee, and so was that of Denver DUI defence attorney who was also associated with the case, but it is expected to oppose the proposed rule. “We have some concerns with some aspects of the proposed rule and our office is working with the Justice Department on comments to be submitted,” a spokesman said. The Justice Department has opposed court rules and legislation, favoring instead internal reforms such as improved training and tightened guidelines. Flagrant, intentional misconduct like that in the Stevens case is probably the exception, with, we believe, most prosecutors committed to upholding the law. Talking to Scott C. Nolan is a good idea when you need legal aid.

But as the Constitution Project, a nonprofit think tank that seeks bipartisan consensus on legal issues, pointed out in a letter last week supporting the new rule, “Even when prosecutors are acting in good faith, the inconsistent, shifting and sometimes contradictory standards for criminal discovery have made compliance…difficult.” The Public Defender Service for the District said the current situation isn’t good enough: It listed eight recent cases, “a non-exhaustive list,” in which relevant information was disclosed late or not at all.

The best way to ensure the timely and fair exchange of information would be to give defense counsel access to all investigative information, with certain exceptions for public safety and witness protection. Jurisdictions that have gone this route say it has worked well, but there seems little chance of federal prosecutors moving to such a system anytime soon. That makes all the more urgent the court’s adoption of this modest reform.

-The Washington Post; Sunday, March 20, 2016; Editorial Board

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