Sunday, January 28, 2007
The TalkLeft Blog discusses whether Libby's attorneys have all statements by Karl Rove, noting that:
"Fitz has taken the position since day 1 that he's not obligated to turn over statements of defense witnesses, only those of witnesses he intends to call. (That wouldn't be acceptable in my federal District, which has a more open file policy, but each District is different.)"
This is an interesting point that rings true to those of us who have researched the Jencks Act. If the discovery material is exculpatory to the accused, the government is obligated under Brady to turn that evidence over to the defense. Otherwise, the Jencks Act (18 U.S.C. s 3500) merely requires that once the witness testifies for the government, the defense is entitled to the prior statements of that witness before cross-examination is conducted. (see also Fed. Criminal Rules of Procedure, Rule 26.2). So if the prosecutor calls Karl Rove, the statements would become available to the defense.
In reality, most prosecutors turn over Jencks material in advance of trial. In a study I conducted years ago and reported in a symposium article titled, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 Georgia St. L. Rev. 651 (1999), a survey of defense attorneys noted that they received Jencks material days before trial, in many cases either 3, 5, 7, 10, or longer before the trial began.
Several things are clear here: 1) there is no uniformity on when witness statements will be received by defense counsel from the government. It seems odd that the government pushes for uniformity in sentencing, but is unable to offer the same within the trial; 2) that some prosecutors seem reluctant to give these important trial materials to the defense (don't they want the truth to prevail); 3) that if the prosecutor and defense counsel decide not to call Karl Rove, we may never know the contents of his testimony before the grand jury.