This last July saw a "Blue Moon," i.e., two full moons in a month.
This happens as often as my agreement with the defense in a criminal case. So I guess it's fitting that I agree with it in this one, as reported by the NYT.
It's a Brady case. An amicus brief taking the view that the Supreme Court should grant cert was signed by, among others, former Attorney General Michael Mukasey and Peter Keisler. Mr. Mukasey was my debate partner last year on sentencing reform, and Peter is a friend of mine of many years, having been both Acting Attorney General in the Bush Administration and, along with my wife, a co-founder of the Federalist Society.
And I have a confession. I have not read either the petition or the Third Circuit's opinion, which sided with the government (as have other circuits on the question presented). If Mr. Mukasey and Peter Keisler say so, that's good enough for me. The amicus brief was also signed by Seth Waxman, the Solicitor General toward the end of Blll Clinton's term, and a learned man of many bad ideas but widely and correctly respected integrity.
I will add a word in favor of my current nemesis, the Obama Justice Department. I think the Department is doing the right thing in defending the judgment below in its favor. The tradition within DOJ is that the government will make any reasonable argument in behalf of the position it argued to the lower courts. This is the correct stance for a number of reasons, the first being consistency, and the second being resistance to political pressure as a controversy becomes more publicized.
As the NYT notes, quoting Peter:
"The essential role of a government prosecutor is to seek justice, not simply or always to win convictions," he said. "That role requires the prosecutor, in order to help ensure a fair trial, to make broad disclosure to a criminal defendant of the information the government possesses. The decision challenged in this case weakens enforcement of that fundamental requirement."
Just so. We already have one side in the courtroom seeking victory rather than justice. That would be the champion-of-the-downtrodden defense lawyer. If a guilty and dangerous client goes free, hey, that's the way the cookie crumbles. His next victim can worry about it. Not defense counsel's job. Or concern.
My own view as a federal prosecutor was to support open file discovery, i.e., defense counsel was welcome to the whole ball of wax (except for information that might help his client assassinate a prosecution witness).
This is not because I was Mr. Nicey. It was for several reasons, starting with my view that it is not a game. Second was my view that one's reputation with the court as an honest man is worth more than the outcome of any one case, no matter what it was. Third was the fact that trying to make close decisions about what is and is not "exculpatory evidence" is too dicey to be worth the litigation risk. And last, to be honest, I wanted the defense lawyer to get that "Oh, crap" feeling when he saw from the file just how thoroughly his client was toast. The myth among the defense bar is that the prosecutor's file is full of goodies that will unravel the government's case; the truth, almost all the time, is that it's full of reasons why counsel should try to wheedle the best bargain he can get before the jury gets seated.
Bill, just a curiosity question, the Slate article about you said, "In 25 years with the Justice Department, Otis never tried cases. He toiled, instead, as an appellate lawyer, his nose buried in books and briefs." Do they have this wrong?
It is largely correct. I can't account precisely for the location of my nose, but I was an appellate lawyer. For the first seven years of my career (1974 - 1981) it was at the Criminal Division at DOJ. After that, I was hired to become head of appeals at the USAO for EDVA (1981 - 1999), with a stop-off at the White House in there. It's likely I would have stayed there had GHWB won in 1992. Didn't work out that way.
In the 1980's, I was in the "Train the Trainer" group to teach USAO's here and there about the implementation of the SRA of 1984, and was also on the AGAC.
I was in a trial or two, but in a minor role. The USA would sometimes like to take on a trial himself, just to stay fresh, and he had me as second chair, being the supposed office egghead. Together with Jim Comey (yes, THAT Jim Comey) I represented the USA when she was hauled into district court for a show-cause hearing when the judge (Hon. Richard L. Williams) didn't like how much of his time was being eaten by Project Exile. And in truth, it did take plenty of his time, because we had decided to use the federal 924(c) provisions to get something done about the skyrocketing murder rate in Richmond. It worked. We started putting the gang leaders away for mandatory federal time, and the murder rate plummeted.
I became more familiar with Brady than I cared to because colleagues would often come in and ask whether Brady required them to turn over items A, B, or C. My gentle answer was always the same: "If you're in here asking, you already know the answer." To be honest, I also knew it would be up to me, as head of appeals, to retrieve the conviction in the Fourth Circuit if the district judge tossed it on account of a Brady violation. I wanted no violations, both to save my time and preserve the (quite good) reputation of the Office.
So, apart from my view that it's not a game, there was also self-interest. The less time I had to worry about appellate Brady claims, the more time I would have to spend across the Potomac at Main Justice lobbying for mandatory minimums. Like so many other litigation problems, Brady issues are best nipped in the bud. Just talking it through with the line AUSA to show him the light will save him, you and the Office a boatload of trouble later.
Thank you for asking. It's a pleasure talking to someone who knows how the system works.
And one question for you, if I might:
Do you agree with my statement that, "We already have one side in the courtroom seeking victory rather than justice. That would be the champion-of-the-downtrodden defense lawyer. If a guilty and dangerous client goes free, hey, that's the way the cookie crumbles. His next victim can worry about it. Not defense counsel's job."
In reading the 2 briefs, it seems that the defense ( and the amicus brief) claim that the defendant was denied 2 pieces of information, one from a bail hearing at the an initial plea by a cooperating witness, and a second PSR, neither of which was turned over to the defense.
The government claims - and both DC and CA agreed - that the bail hearing transcript was not in the possession of the government. The case AUSA's never requested the transcript since bail was not an issue for the AUSA's, which was available to the defense if anyone cared to read it. Further, the witness's drug use was the subject of some vigorous cross during trial, so the defense couldn't claim ignorance of the issue. In that bail hearing, the witness said he was being treated for anxiety over his fear of prison, fairly understandable in light of things. The judge found him lucid and able to enter a plea.
The PSR was not turned over the the USAO (by P&P) until about a month after the trial of the defendant was concluded. At his sentencing, the witness first raised, and then abandoned an attempt to claim some mental compulsion issue for his conduct. The report reflected those claims and medical treatment for the anxiety and depression. But, of course, this all occurred after the trial and any Brady issue. Again, the USAO said the report was never in their possession until after the trial was concluded. trial court and CA agreed.
There are more, relatively minor details in the argument over Brady, but it seems like a slam-dunk for the government.
JCC
I'd be curious if you think the AUSA's should have ordered that bail hearing transcript for the sole purpose of turning it over to the defense. Of course, they were present - at least one of them I presume - and knew what was said, but their brief says the transcript was meaningless to their office since bail wasn't an issue. Since they didn't have the physical transcript, they were under no obligation to turn over something not in their possession, especially something that seems rather obviously in the defense interests to order and see on their own. It wasn't exactly a secret.
The pre-sentence investigation report seems even more clear. It wasn't completed and turned over until a month after the trial concluded.
Is there something between the lines happening?
Thanks.
JCC
If, as you say, it's a slam-dunk for the government, then I believe my position is a win-win.
If the Court denies cert, at least I'm on record as taking the view, along with Mukasey and Keisler, that the government should be fully forthcoming (which is what I believe, on the it's-not-a-game theory).
If the Court grants cert and rules for the prosecution on the merits (as you believe it would), then a significant Brady issue will be resolved in favor of the prosecution. This scarcely gives me heartburn.
Still, I don't want to be set in stone. You've read the briefs; as I noted, I have not, not yet.
I do not.
Why not? I have had defense lawyers tell me point-blank that doing justice is not their job, and that serving the client's interest is where it begins and ends.
So what reasons underlie your answer?
When a defendant is wrongfully accused defense counsel is fighting for justice.
When a defendant is rightly accused (which is the huge majority of the time), and defense counsel seeks his acquittal (or a dismissal or what have you), is THAT fighting for justice??
Bill, defense legitimizes punishment, without defense there can be no justice.
I cannot agree. Defense does not legitimate punishment. Punishment is legitimate if the defendant did what he is accused of.
And among the defense lawyers I have run across, which is a whole bunch, I don't think any would say they're there to legitimate punishment. They'd say they're there to get the client the best deal they possibly can. Which is certainly how they behaved.
This is perfectly OK under the canons as they stand. But it is not an effort to achieve justice. It's an effort to achieve a favorable result, regardless of justice.
I don't think many prosecutors would agree that justice would be served by denying the obviously guilty the right to counsel.
I have never taken the position, and do not believe, that an accused felon should be denied the right to counsel.
The question is what counsel should DO. Trying to get an acquittal for a guilty person may be many things, but doing justice is not one of them.
Holding the prosecution to their burden of proof is doing justice, otherwise the right to counsel is meaningless.
By the way, I found this to be true the great majority of the time, although many of the prosecutors disagreed: "...the truth, almost all the time, is that it's (the governemnt's file) full of reasons why counsel should try to wheedle the best bargain he can get before the jury gets seated."
Full and open discovery led to pleas more often than not, just in my humble opinion. This was not a decision shared by the trial assistant on many an occasion.
JCC
JCC,
Under Gigliio, wouldn't knowledge of one AUSA (of what transpired at the bail hearing) be imputed to the AUSA who tried the case, for purpose of Brady's disclosure rule? And if that is true, aren't we back to the issue discussed in the amicus brief: Does Brady's disclosure rule apply if the favorable, material, information was easily (and equally) accessible to the defense before trial?
I do not see how any criminal defense attorney can argue that his or her job is to get justice for the client. The sole purpose of a criminal defense attorney is to get the best possible outcome for the client -- whether that is acquittal or a reduced sentence. The best possible outcome might be the so-called "just" outcome but that is merely incidental.
The same is true for anyone who hires an attorney for a civil matter. If I'm getting sued for $500,000, I hire an attorney to get me the best possible deal. On the other side, the plaintiff's counsel is trying to get the best possible deal. The so-called just outcome isn't relevant.
@ Paul -
According to the government brief, the DC (and apparently the CA) found that not only was the material easily available to the defense, had the defense done due diligence, but that the material was never in the government's possession, and further, the information was not favorable to the defendant in any event.
So, the Brady claims fail because the government never possessed the information, and the information was not material.
The defense claims - according to the government brief - seek to require the government to collect data it otherwise would not possess, merely for the purpose of turning them over to the defense, data that was easily available to the defense and also logically data that the defense would be thought to have sought on its own. The defense also seeks to transform testimony about the witness's mental state, testimony ruled not material given the great weight of evidence other than the witness's testimony - into becoming somehow critical and essential to the government's case.
There have been issues with the length and content of defense briefs in this case, which seem to confuse this issue even more.
@ JCC,
The Court shouldn't grant cert. given the CA finding that the information was not "favorable" to the defendant nor "material" (as that term is defined by Brady and its progeny).
If the Court wants to address the issue raised by the amicus brief, it should wait for a case where the information in question is favorable and material. In that circumstance, the issue (of whether lack of diligence on the part of the defense renders a Brady claim meritless) would be squarely presented.
Thanks.
Relying only on the government brief, it seems kind of open-and-shut and an inappropriate case for the big-names amicus brief. But the CA did seem to agree with the government's position. I've seen some, let us say, questionable government tactics in the past which I questioned at the time, based on similar to the OP's position that we're supposed to be about the truth rather than tactics, but this case didn't seem representative of such.