Saturday, March 15, 2008
Obviously, we can expect that the government will take issue with the contents of the Skilling brief (for the brief see here). The brief even states that when questioned with a discovery issue the
"Task Force merely reverted to its blanket assertion that the 'notes are "not materially inconsistent" with information already in your possession."
But there is an important question that goes beyond the Skilling case, and even beyond the cases such as the Nigerian Barge cases, that are implicated by the Fastow notes. That question is -- how much discovery should prosecutors give to defense counsel.
Clearly in cases where individuals can be injured, there is a need to make certain that the discovery will not result in the commission of additional crimes. But what is oftentimes a problem seen in drug cases, is seldom a concern in a white collar case.
So why shouldn't the government give all materials to the defense in a white collar case. This is an important question and my answer would be that the government should provide complete and full discovery in white collar cases, unless they can show to a court that the release of the information will have a detrimental effect on a pending case or will be physically harmful to an individual. And in situations when there are these possible ramifications, the court needs to find a way to allow defense counsel needed information so that the accused is not deprived of his or her due process rights.
The easiest way for the government to protect the record and case is to provide everything to defense counsel, and in some jurisdictions we find expansive discovery practices for just this reason. Providing this information not only protects the record and the case, but also serves a judicial economy in that having the information may provide earlier pleas. After all - if the accused sees that the evidence is there to convict him or her, there is a desire to find a lighter sentence through a plea. On the other hand, providing selected materials opens the prosecutor to claims that exculpatory material was not disclosed. Even the best of prosecutors, with the best of motives, may not know the direction of the defense and therefore not be able to ascertain the importance of certain documentation. Providing everything precludes this later argument of non-disclosure, and precludes the risk of a claim of a Brady violation.
The Skilling brief highlights the need to provide all notes, even the raw ones, to the defense pre-trial. From the prosecutor's perspective -why risk a retrial, and if you give everything the plea may add an economic benefit. And more importantly, trials demand fairness. The stakes are high and sending an innocent person to jail should be avoided at all costs. The best way to prevent this from happening is to provide full and complete discovery. The faults of the existing discovery process are not merely claims heard in death cases or ones voiced by the "Innocent Project." The discovery process also needs to be examined in the context of white collar cases.
Addendum - See Austin Criminal Defense Lawyer here.