Thursday, July 21, 2011
Some folks are talking (see here and here) about Assistant AG Lanny Breuer's speech at the National District Attorneys Association Summer Conference. He is definitely correct to say that there has been an improved DOJ on many fronts, especially discovery. (see here). The creation of a Professional Misconduct Review Commission, for one, should be applauded (see here)
But I have to agree with David Oscar Marcus (Southern District of Florida Blog) (here) on a few things such as why is DOJ "opposing a change to Rule 16 (as suggested by the ABA and on July 7, by NACDL) requiring what their guidelines merely suggest." And DOJ certainly could do more - like supporting NACDL's recent discovery statute change here.
Lanny Breuer, speaking to this supportive audience said, "[c]ertain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate." But did the DOJ attorneys come out in these instances and say - "we made an honest mistake?" I think it would go a long way when a mea culpa is expressed. I think it would also go a long way when the office starts taking steps to assure that discovery rules are enforced - like agreeing that this requires statutory oversight to achieve compliance.
But we need to remember that this was the prosecutor's pep talk and his making a comment like "[o]ur job is not just to win cases, but also to do justice in every case,” should be applauded. We have come a long way to be hearing this important statement from a prosecutor in a key position.