Tuesday, November 15, 2005
According to the Washington Post here, Dow Jones went to court seeking some of the documents in the Libby case. It seems that Special Prosecutor Patrick Fitzgerld wants a protective order from some of these documents being released to the media.
It is likely that issues of balancing the public's right to know versus insuring the defendant a fair trial, continuing an ongoing investigation, and protecting the secrecy of grand jury material may be some of the issues at stake here.
Defense counsel is entitled to receive immediately all exculpatory material or what is commonly referred to as Brady material. Ultimately, when and if the case goes to trial, the defense is also entitled to receive Jencks material, or any prior statements made by a witness. According to statute and a federal rule of criminal procedure, Jencks material does not have to be turned over to the defense until after the witness has testified. In reality, most prosecutors provide Jencks material to defense counsel prior to trial so that the trial does not need to be placed on hold while defense counsel reads and further investigates the defense case based upon the Jencks material that is just received.
Prosecutors often, as they should, provide all discovery material to defense well before trial. The benefit of defense counsel receiving this material pre-trial is that upon seeing the prosecution's case it may be more likely that a plea agreement will avoid the necessity of the cost of trial. It is also a question of basic fairness. Shouldn't defense counsel have the same ability to prepare for trial the prosecution has had in the many months that it has been investigating its case?
But giving discovery material to the media is another matter. What if this were an ongoing investigation and someone is still providing information to the government - - would that individual be protected? Would the government be able to continue to obtain information from someone once their identity is disclosed?
But on the other side, will defense counsel be able to properly prepare for trial under the constraints of a protective order? When police want information, they often use the press to publicize the matter. Police have the ability to put bulletins out to the public seeking information on an alleged crime. Shouldn't defense counsel have this same ability? If the defense want more information on events, shouldn't they also have the right to use the media? But if that's the case, wouldn't it be defense counsel arguing against this protective order as opposed to Dow Jones?
Obviously the defense counsel needs to receive discovery material to properly prepare for trial, but when does the public's right to know prevail over prosecutorial needs in a continuing investigation? Defense counsel often struggles with prosecutors to obtain all the discovery material they need to prepare for trial. Perhaps now the media will understand the difficulties faced by defense counsel in their preparation for trial.