New DOJ Discovery Policies Fall Short

In the wake of recent events that demonstrate discovery violations (see here), DOJ has issued three new policies here.  It is wonderful to see that DOJ is beefing up its discovery practices and taking a hard look at what should happen in the future.  It also sounds like a better management system is being considered.  But that said, looking at the actual guidance memo, here are a few preliminary comments -

• After telling prosecutors that they need to familiarize themselves with Brady, Giglio and other discovery rules and statutes, the paragraph ends with a statement that this new memo "provides prospective guidance only and is not intended to have the force of law or to create or confer any rights, privileges, or benefits." Yes, this is the standard language one finds throughout the DOJ manual.  But wait a minute -- although DOJ guidelines can be guidelines, these mandates are constitutional, statutory, and rules - they often do have the force of law. This fact should be emphasized to prosecutors.
• The memo states - "Prosecutors should never describe the discovery being provided as 'open file.'"  The memo explains the fears of missing something.  It seems odd that the DOJ doesn't want prosecutors to accept credit when they do the right thing and provide all discovery. Saying not to call it "open," for fear of missing something, implies that this is not a policy that recognizes the value of an "open file" system that can work well and provide efficiency. And taking this one step further -- if it is not acknowledged as an "open discovery" practice, and something is missed - will it sound any better to the accused who failed to receive their discovery material?
• The memo gives no real guidance as to when a prosecutor has to turn over Jencks material, and leaves it to the individual offices to create their individual rules.  It is ironic that DOJ wants sentencing consistency, but doesn't want discovery consistency. Should a defendant in Wyoming have different rights to witness statements than the defendant in New York?  
• It is good to see memorialization of witness statements is important.  But only turning over "material variances in a witness's statements?"  Shouldn't all variances be turned over?
• It is interesting how the memo provides an extensive review process of discovery material - will this hold up getting the materials to defense counsel?  Also will defense counsel be given an equal amount of time to review these materials and time to conduct additional investigation that may be warranted as a result of the materials provided?
• And yes, it is important to protect witnesses and national security - but should DOJ be the one deciding when they think they can withhold evidence?  Shouldn't that be for neutral parties like the judiciary?

It is good to see DOJ trying to do a better job than past administrations, but what really needs to be done is setting forth clearer rules and statutes by independent parties, as opposed to a working group made up of "senior prosecutors from throughout the Department and from United States’ Attorney Offices, law enforcement representatives, and information technology professionals," so that our system does "do justice" as desired by AG Holder.

(esp)