Saturday, March 15, 2008

Initial Commentary on the Skilling Supplemental Brief

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.

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Here's a less drastic suggestion:Whenever the prosecution is providing a summary, require an independent thrid party--the court or special ct appointed counsel to compare the summary with the raw notes. We are now at the mercy of often politically motivated prosecutors with a full quiver of statutes and strategies to snare the innocent and make their political bones with very little practical opportunity to unde their excesses .
And, I'd require that these high profile crimes be supervised better at the DoJ. The Anderson case,i.e., shows these prosecutors can cause incalculable harm and are showing zip, zero, zilch sensible discretion.

Posted by: clarice | Mar 16, 2008 2:23:31 PM

The lack of discovery in drug prohibition cases produces no injustice.

We can trust confidential informants. We can even trust notional informants.

Cops never lie. And when they do it is for a good cause. If there was no more alcohol there would be no more alcoholics. This has been proved.

Posted by: M. Simon | Mar 16, 2008 2:44:16 PM

The stakes are high and sending an innocent person to jail should be avoided at all costs.

Sigh. Wouldn't it be pretty to think so?

Posted by: Charlie (Colorado) | Mar 16, 2008 3:09:22 PM

The unwillingness of government lawyers to hand over everything may be conditioned by their academic backgrounds, similar to a lawyer friend of mine here. I mentioned the incident to her at a meeting yesterday for a non-legal volunteer group we both belong to. Her reply to a lack of responsiveness in discovery showed a classic academic bias:

"Of course they would hold back both names of people these bastards might kill to stop their testimony! Of course they would hold back evidence that would let the bastards track who knew what, and find out who to get to. Tom, ...these are businessmen at the top of a big corporation. .They'll do *anything* for money. Studies have shown that corporations favor sociopathic types to rise to the top. *I* wouldn't give the bastards any more than they can immediately justify!"

While Law Schools don't teach that attitude, as far as I know, there are too many chances to soak it up along with their undergrad degrees. Finding that in government prosecutors, after the prolonged non-performance in deference to PC politics of those 9 US Attorneys before they were fired, would be no surprise at all.

No, she does no work for businessmen, but practices immigration law.


Tom Billings

Posted by: Tom Billings | Mar 16, 2008 3:13:27 PM

Wow!...Still in the Dark Ages. Amazing that these Spitzers even let defendants have counsel[1], and *even* testify[2]. [1] First allowed in England in 1836. [2] First allowed in England in 1861.

Seriously, the legal basis for governmental disclosure (and moral and ethical basis) was dealt with by the Supreme Court of Canada back in 1991:

The Queen v. Stinchcombe. The Crown refused to disclose possibly exculpatory statements and recordings even at trial, and refused to call the witness, who had refused to even talk to defendant's counsel. (Reading between the lines, the Crown attorney had nobbled her with the threat of being indicted as a conspirator.)

From the headnote (report available online at:

By a unanimous court:
Held: The appeal should be allowed and a new trial ordered.

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case.

Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial.

Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied.

Crown counsel was not justified in refusing disclosure here on the ground that the witness was not worthy of credit: whether the witness is credible is for the trial judge to determine after hearing the evidence. The trial judge ought to have examined the statements. Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced.


From the reasons: It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence.

As the saying goes, Read the Whole Thing!.

It's quite short as SCC (and Scotus) decisions go and extremely cogent and lucid. In fact, Skilling's attorneys should file a copy and refer to it in oral argument (since they cannot now do that in a brief!). Are there not some at SCOTUS who *like* foreign law? Well this is just the Canadian version of 'Con Law' looking at the question of 'full answer and defence' [yes that is correctly splet!.] And going on for 17 years old, so we have had lots of time to deal with the practical aspects of dealing with making disclosure.

One effect of which is that Crown offices (and judges) are quite conversant with scanning and burning CD's/DVD's. Couple of years ago, a high-ego defence counsel demanded that some (voluminous) disclosure be provided to him on paper, since he didn't *like* using CD's. The judge in effect said 'I prefer CD's to boxes of paper. Application dismissed'. Actually he also said that 'disclosure is disclosure' and if counsel wanted to see the originals, he could arrange for access. Form is not content.

And apropos 'original documents', the Crown in Stinchcombe then LOST some of the original recordings, but still had the transcripts. No nefarious just happened. Stinchcombe made it to the Supreme Court a second time on that question (appeal dismissed...the transcripts would do) and went to trial for the FOURTH time on the original charges, and was acquitted finally, in a trial which was finally fair. The Crown counsel involved was clearly a pre-Spitzer Spitzer!


Posted by: R. G. Newbury | Mar 17, 2008 1:05:55 PM

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