Tuesday, February 28, 2012
In its lead editorial yesterday, entitled "Justice and Open Files," the New York Times proposed an "open files policy" for criminal discovery (see here). It based its reasoning largely on the several recently exposed cases of Brady violations by DOJ attorneys, including most prominently the case of Senator Ted Stevens. (Similar arguments have been made on this blog. See Wisenberg 11/23/11 (here), Goldman 11/30/11 (here); see also Podgor 11/21/11 (here), Wisenberg 2/21/12 (here).)
Open-files (or open-file or open) discovery, with protections available to prosecutors in those rare cases where there are threats to witness safety or other convincing reasons, would lead to trials that are much fairer, limit Brady violations, make unnecessary many court appearances and much motion litigation, and save the federal government and litigants tens of millions of dollars annually. Open-files discovery is especially appropriate in white collar cases, where the volume of discovery is often voluminous and the threat to witness safety virtually non-existent.
The ostensible argument given by opponents of open-files discovery is that providing the defense with names and statements of witnesses would endanger those witnesses. To be sure, the fear is realistic in some few drug, racketeering, and violence cases, but almost never in white collar cases. The real reason many prosecutors and their allies oppose open-files discovery, or any other meaningful expansion of pretrial prosecutorial discovery, is that the lack of knowledge by the defense of the prosecution's case and/or the delay in obtaining that knowledge give the prosecution a considerable advantage. The less information the defense has and/or the later it receives that information the less time it has to consider it, investigate it and prepare for it.
Legislators, fearful of being attacked as "soft on crime," are generally reluctant to go against the wishes of prosecutors and pass meaningful discovery legislation. I had hoped, perhaps naively, that in the wake of the Stevens revelations that the Senate might consider a "Ted's Law" to enhance discovery and/or punish Brady violators. So far, it has not. Open-files discovery is practiced in a few jurisdictions primarily because of strong, confident, fair-minded prosecutors who are willing to take positive steps over any objection by senior prosecutors. Those jurisdictions are unfortunately few.