What Is The Justice Department Trying To Hide?

In a terrible decision last month, the Court of Appeals for the District of Columbia dismissed a lawsuit brought by the National Association of Criminal Defense Attorneys (NACDL), refusing its request under the Freedom of Information Act to look at a manual prepared by the U.S. Department of Justice -- entitled the Federal Criminal Discovery Blue Book -- that contains strategies, tactics, and arguments used by federal prosecutors to enforce, and possibly evade, their constitutional obligation to disclose exculpatory evidence to criminal defendants. Two of the three judges on the panel, Judge David Sentelle and Judge Harry Edwards, although believing the court's decision was compelled by precedent -- even a wrongly decided precedent -- derided the Justice Department's cynical effort to conceal from the public the questionable tactics it uses to win cases. As these judges asked rhetorically, "What is it you have to hide?"

The Justice Department claims that the manual is information that lawyers call "Work Product," which is typically exempt from disclosure to a party's adversary when it is prepared in anticipation of litigation. It's a privilege that is designed to protect the integrity of the adversary trial process by providing an attorney with a zone of privacy to analyze the evidence, evaluate her case, and come up with legal theories and arguments. To be sure, the Department's manual was prepared in connection with future criminal litigation in general, but certainly not in connection with any specific criminal case, which is the way most legal observers view the work product privilege. For example, if the Justice Department hired a group of pro-law enforcement lawyers to write a private treatise for use only by United States Attorneys on "How to Win Criminal Convictions by Cheating," it's inconceivable that a court would allow the government to keep that treatise secret as "work product." Moreover, the notion that disclosing the manual would give defense attorneys an advantage in contests with federal prosecutors runs counter to the constitutional and ethical principle that the prosecutor's job is not to win a case but to do justice.

The NACDL and other informed observers are concerned that the government's manual may contain tactics and arguments used by federal prosecutors when deciding whether to disclose evidence that is favorable to a criminal defendant. Indeed, hundreds of federal criminal convictions (and thousands of state convictions) have been reversed because prosecutors, in violation of their constitutional duty under the landmark case of Brady v. Maryland , hid evidence that could have changed the jury's verdict. And in many of these cases, the defendant was subsequently exonerated. The respected judge on the Ninth Circuit Court of Appeals, Alex Kozinski, recently asserted that suppression of evidence by prosecutors "has reached epidemic proportions." So the question naturally arises: Is the Justice Department's gambit to hide the discovery manual done to cover-up tricks, tactics and gamesmanship it uses to avoid full enforcement of its Brady duty? And will the D.C. Circuit's protection of prosecutors contribute to more wrongful convictions?

The notion that federal prosecutors -- even the most experienced ones -- always play by the rules was obliterated in the disastrous federal prosecution of the late Senator Ted Stevens. After he was convicted of making false statements on a Senate financial disclosure form, Federal District Judge Emmet Sullivan threw out the conviction because of gross misconduct by the federal prosecutors in hiding exculpatory evidence and appointed a respected lawyer, Henry Scheulke, to investigate and prosecute criminal contempt proceedings against the six prosecutors who conducted the Stevens investigation and trial. The Scheulke Report carefully documents the numerous instances in which these prosecutors manipulated flimsy, ambiguous, and disserving government evidence; systematically concealed exculpatory evidence from the judge and jury; and thwarted defense attempts to locate that evidence. The prosecutors hid from the defense evidence that would have corroborated Stevens' defense, concealed evidence that would have significantly impeached the government's key witness, and suppressed and manipulated documents that would have supported Stevens' defense.

Given the fact that this high-profile case was prosecuted under the intense glare of public scrutiny, it is astonishing that these prosecutors -- some of the most experienced prosecutors in the Justice Department -- took the risk of being exposed as dishonest. But they wanted desperately to win. Their numerous excuses for their violations also were desperate. They claimed they were unaware of the existence of exculpatory information; denied that the information was exculpatory; claimed they forgot that this information even existed; claimed they had innocently neglected to record important information; claimed they overlooked the need to more carefully scrutinize important documents; claimed they were forced by time pressures to conduct a rushed and unsupervised Brady review; and argued that because of these pressures they were forced to delegate the Brady review to FBI agents and other prosecutors who were unfamiliar with the case.

The Scheulke Report decisively rejected the prosecutors' self-serving and disingenuous justifications for their dysfunctional and unconstitutional conduct. What stands out, however, is the cavalier and complacent way the prosecutors tried to excuse their egregious conduct. It is certainly reasonable to believe that these self-same excuses, and many other pre-textual arguments to justify unethical conduct, may have found their way into the Justice Department's discovery manual. Whether the manual provides a roadmap for prosecutors to evade, manipulate, and play games with their Brady obligations as they did in the Stevens case is unknown. It is certainly conceivable that under the cloak of the protection for work product afforded by the circuit court, the Department's manual may provide similar excuses for prosecutors to avoid compliance with Brady. Below are several examples of recurring and unsettled Brady issues that likely are discussed in the manual.

- Whether a tacit, or unspoken benefit, to a cooperating witness needs to be disclosed?
- Whether exculpatory statements by members of the prosecution team ("I don't believe our witness") need to be disclosed?
- How much discretion does a prosecutor have in evaluating the favorability of evidence?
- To what extent should a prosecutor seek out evidence in the hands of other law enforcement agencies?
- To what extent should prosecutors seek out favorable evidence believed to be possessed by non-law enforcement entities?
- Whether a prosecutor who has serious doubts about the truthfulness of evidence that may be favorable to the defendant needs to disclose it to these defendants?
- Whether a prosecutor needs to disclose favorable evidence that would not be admissible at trial?
- Whether a prosecutor can delay disclosing exculpatory evidence?
- If a prosecutor can delay disclosure, for how long can he do so?
- Must a prosecutor disclose exculpatory evidence before taking a guilty plea?
- Must a prosecutor disclose impeachment evidence before that witness testifies?
- Must a prosecutor disclose favorable evidence if he reasonably believes the defense knows about it?
- Whether a prosecutor in disclosing Brady evidence must identify potential Brady information or simply disclose everything without enumeration?
- To what extent can a prosecutor assess the materiality of favorable evidence in deciding whether to disclose it?
- What are the limits of disclosure of impeachment evidence of police witnesses?
- To what extent must a prosecutor correct a witness who is appears to be making a reasonable mistake?

These are issues that may arise in any criminal case. Why is the Justice Department insisting on keeping its discovery policies a secret? It's hard to reconcile the government's willing disclosure of its drone-assassination conduct and policies , but its unwillingness to disclose policies that might help a criminal defendant facing trial to level the playing field. In the famous case of Berger v. United States , the Supreme Court wrote that the government's interest in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Given the prosecutor's role as a servant of justice, is there really a stronger reason for the government to conceal how it prosecutes cases than how it assassinates terrorists?