Fishman Haygood Authors Amicus Brief for Law Professors

Last week, the National Association of Criminal Defense Lawyers (NACDL) brought its years-long effort to secure the public release of the Department of Justice (DOJ) Federal Criminal Discovery Blue Book to the U.S. Circuit Court of Appeals for the District of Columbia Circuit, filing its opening brief on July 15, 2015. In it, NACDL argues that the Blue Book may not be withheld as work product or as law enforcement information whose disclosure risks circumvention of the law. Yesterday, three amicus curiae, or 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).

In response to the 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, 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 December 2012, NACDL filed a Freedom of Information Act (FOIA) request with the DOJ seeking the disclosure of the Federal Criminal Discovery Blue Book, which was denied, as was its subsequent effort at disclosure in the U.S. District Court for the District of Columbia.

“The problem of nondisclosure and late disclosure in criminal cases is one of a Constitutional dimension – it speaks directly to the right to due process under the law. Fairness and transparency demand the release to the American people of the contents of a document the Department of Justice told Congress was intended to protect and preserve the public’s right to due process,” said NACDL President Theodore Simon.

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.

To date, DOJ declines to disclose this text.

Of course, the case of Sen. Stevens is but one instance, albeit a very high-profile one, in which the rights of accused persons in America’s criminal justice system have been violated by prosecutors’ failure to discharge their duty to disclose favorable information to the defense. The problem is well-documented and has been the subject of extensive coverage and editorials by leading American newspapers, including the Los Angeles Times, whose editorial board in late December 2013 endorsed NACDL’s model discovery reform legislation in “Editorial: Don’t ignore the Brady rule: Evidence must be shared.” And in January 2014, the New York Times ran “Editorial: Rampant Prosecutorial misconduct,” explaining that “fighting prosecutorial misconduct is not only about protecting the innocent,” but also preserving public trust in the justice system and the foundation of the rule of law.

In 2012, NACDL’s Task Force on Discovery Reform drafted model legislation that would require disclosure of all evidence favorable to the accused, regardless of any assessment of whether the evidence was material. This approach was embodied in the Fairness in Disclosure of Evidence Act, federal legislation introduced in 2012 by Senator Lisa Murkowski (R-AK), with bipartisan co-sponsorship and support from a broad coalition ranging from the ACLU to the U.S. Chamber of Commerce. NACDL has undertaken a number of research and advocacy projects to support this important measure. NACDL is likewise supporting the efforts of its state affiliates— through advocacy, resources, and model legislation—to enact open-file discovery rules and legislation.

Kerri L. Ruttenberg, a partner in the Washington, DC office of the Jones Day law firm, is lead counsel to NACDL in this matter and is working with Yaakov M. Roth and Julia Fong Sheketoff from her firm.

The amicus curiae brief of the 63 law professors was prepared by Alysson L. Mills, Jason W. Burge and Jesse C. Stewart of Fishman Haygood, LLP, in New Orleans, LA. The amicus brief of the Constitution Project and the Innocence Project was prepared by Timothy P. O’Toole and Addy Schmitt of Miller & Chevalier Chartered in Washington, DC. And the amicus brief of the ACLU, ACLU of the Nation’s Capital, and EFF was prepared by John D. Cline of the Law Office of John D. Cline in San Francisco, CA and Allison L. Ehlert of Ehlert Appeals in El Cerrito, CA.

A complete copy of NACDL’s July 15, 2015 appellate brief to the U.S. Circuit Court of Appeals for the District of Columbia Circuit is available here. And the joint appendix is available here.

More information concerning NACDL’s work in the area of discovery reform is available atwww.nacdl.org/discoveryreform.