In Which You Discover Only What The State Thinks You Should

Tuesday, July 17th, 2012

Under the United States Constitution, prosecutors have an obligation to turn over potentially exculpatory evidence — whether it is evidence that is directly favorable to the accused and unfavorable to the government’s case, or evidence that undermines the credibility of the government’s witnesses.

But, as our kind host frequently discusses, there’s a broad gulf between what should happen and what does happen in the criminal justice system. Prosecutors withhold exculpatory evidence all the time, usually without consequence.

Given human nature, the cultural pressures of law enforcement, and the lack of supervision in some prosecutorial agencies, such behavior by “rogue prosecutors” probably doesn’t surprise readers of The Agitator. What might surprise you is that the suppression of exculpatory evidence is sometimes systematic and based on written policy from the highest levels of local government.

Last week the ACLU of Southern California and the firm Bird Marella filed suit seeking to prohibit the Los Angeles County District Attorney’s Office from enforcing its “Special Directive 10-06,” a policy memo dictating how the office’s hundreds of prosecutors are to treat exculpatory evidence in the tens of thousands of cases the prosecute. You can read it at the ACLU site or here.

The suit alleges that far from assuring compliance with constitutional obligations, the Los Angeles County District Attorney’s Office policy, if followed, violates those obligations. In fact, it purports to require that line prosecutors violate the constitution. For instance:

Materiality: The policy purports to permit prosecutors to withhold exculpatory material that they deem not “material” — that is, not likely to change the outcome of the trial. But that’s not the standard for what prosecutors are obligated to turn over — it’s the appellate standard for determining when a discovery violation is so prejudicial as to require reversal of a conviction. Using that as the standard for what prosecutors should turn over is the equivalent of saying “you may withhold evidence if you can get away with it.” Moreover, speaking as a former prosecutor, I submit that prosecutors hold a very cramped and narrow view of what is exculpatory and what might influence a jury, and are culturally incapable of making a reliable call about what is likely “material.” No doubt that’s exactly why that’s not the standard for what they are supposed to turn over.

Impeachment Evidence: The policy regulates the DA’s “Brady Alert” system, a database that collects information impeaching the credibility of law enforcement officers and government witnesses. The DA’s Office touts this system as assuring discovery compliance, but the lawsuit — and the attached Special Directive 10-06 — suggests that in fact it is a systematic justification for withholding discoverable impeachment evidence (that is, for you non-lawyers, evidence that can be used to question the credibility of a witness). For instance, as the suit alleges and the Special Directive shows, the DA’s Office only includes information about witness credibility if it believes that information is supported by “clear and convincing evidence” — a higher standard somewhere between preponderance of the evidence and beyond a reasonable doubt. But that’s not the law — a prosecutor doesn’t get to withhold impeachment evidence because he or she doesn’t credit it. Prosecutors are culturally prone to believe government witnesses and disbelieve accusations against them; it’s patently ridiculous to make them the gatekeepers of what damaging information is sufficiently credible to be turned over to the defense. Moreover, the Special Directive requires prosecutors to withhold impeachment evidence about government witnesses if it is based on pending criminal or administrative investigations — that is, investigations that have not yet led to a result. Once again, there’s no basis in law for that limitation — if the government’s witness is under investigation for a crime, that goes directly to bias, motive, credibility, and any number of other relevant factors.

Read the lawsuit. This is what the government does openly, in writing, as official policy — so imagine what it does as a matter of practice, behind closed doors.

I’ll offer updates on the lawsuit as it proceeds.

Disclosure: I have litigated against the L.A. County District Attorney’s Office for 12 years, and currently represent defendants charged by them. Moreover, I know both Peter Eliasberg, the ACLU attorney on the matter, and Benjamin Gluck, the Bird Marella attorney on the matter, and think highly of both of them.

–Ken White

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27 Responses to “In Which You Discover Only What The State Thinks You Should”

  1. #1 |  In Which You Discover Only What The State Thinks You Should | Popehat | 

    [...] Discover Only What The State Thinks You Should Jul 17, 2012 By Ken. Effluvia In my guest post at The Agitator today I discuss a new lawsuit seeking to prohibit the Los Angeles County District Attorney's Office from [...]

  2. #2 |  SamK | 

    This is the sort of thing that leads me to support the ACLU even when I don’t care much for their internal politics.

  3. #3 |  BP | 

    But you are forgetting about the efficiencies created when one government employee can both prosecute AND make the judicial determinations, Ken. This is the solution to California’s budget woes!

  4. #4 |  C. S. P. Schofield | 

    “This is the solution to California’s budget woes!”

    Yeah, BP. Because when it is publicized, anybody with the common sense God gave a turnip will make a break for the state line. No citizens, no expenses.

    *snort*

  5. #5 |  Dave Krueger | 

    Prosecutors are impartial pursuers of truth and justice and can be trusted implicitly to do what is in the best interests of both the state and the defendant. Exculpatory evidence is just a loophole that let’s people escape justice on the mere technicality of being innocent.

  6. #6 |  Matthew Cline | 

    The policy purports to permit prosecutors to withhold exculpatory material that they deem not “material” — that is, not likely to change the outcome of the trial.

    It’ll be entertaining to see what the justification for that is. After all, if it’s note likely to change the outcome of the trial, what’s the point of withholding it?

  7. #7 |  Dante | 

    This sort of reminds me of the comments from an Iraqi lawyer involved in the Saddam Hussein trial (after he was captured by Americans, he was tried by the new government we installed).

    To paraphrase “He will get a fair trial, and then he will be found guilty and executed”.

    Welcome to the new American Criminal Justice System.

    Guilty, until proven innocent beyond a reasonable doubt (and only after spending HUGE amounts of money, otherwise you are guilty).

  8. #8 |  Yizmo Gizmo | 

    We know from Carlos Miller et al that when it comes to
    video evidence, the cops’ account of what happens rarely
    matches what happens, and that cops routinely try to delete
    video footage of arrests, detentions, etc…
    Are these the people we are trusting to hand over exculpatory evidence because they are “supposed to”?

  9. #9 |  johnl | 

    Lael Rubin was involved in the development of LADA’s Brady Compliance procedures. So you would hardly expect transparency or fairness.

  10. #10 |  el coronado | 

    Where’s the DOJ in all this? The same DOJ that routinely files suits against states, municipalities, etc., that – in the opinion of the DOJ – violates the civil rights of the poor, downtrodden, yadda yadda yadda.

    Where’s Holder making an outraged speech? Where’s Obama furiously vowing to fight this unAmerican jive? Boxer? DiFi? Pelosi? Brown? Hell, where’s LA’s famously liberal *mayor*?? I thought they cared about the little guy! I mean, that’s what they SAY, right?

  11. #11 |  stlgonzo | 

    Dave Krueger, I actually did laugh out loud. Then I cried a little bit.

  12. #12 |  The Late Andy Rooney | 

    #8: For folks who don’t already know, Lael Rubin was one of the prosecutors in the infamous McMartin Case.

  13. #13 |  Boyd Durkin | 

    QUICK! Someone put these noble folk in charge of our health care!

  14. #14 |  Boyd Durkin | 

    Where’s Obama furiously vowing to fight this unAmerican jive?

    He’s on the Kiss-Cam and posing for steamy pics of himself in the rain (which seem to get all the neckbeards’ panties wet on Reddit and other places).

  15. #15 |  Allen | 

    What, did they go to the Kern County School of Prosecution? Ed Jagels would be proud.

  16. #16 |  Leon Wolfeson | 

    No, it’s what happens when you don’t use a properly professional force of prosecutors, but rather elect them.

  17. #17 |  Burgers Allday | 

    OT alert (sorry, Mr. K. White, I understand that this is an articulate and informed post on an important subject):

    http://www.policeone.com/officer-shootings/articles/5827342-Fla-deputies-shoot-kill-wrong-suspect/

    welcome to Iraq, my Totski’s!

  18. #18 |  John Pomeroy | 

    #7 Dante,

    Didn’t Holder make a similar statement in regards to KSM and his New York City trial? Because after all, we wouldn’t have detained him, her, them if he, she, they weren’t guilty now would we?

  19. #19 |  dwb | 

    The Constitution for the United States does no such thing. While so dumbass court claim such, there is NOTHING in the Constitution that requires such.

    The Constitution is rules for the operation of the federal government and is nothing more. The Constitution does not concern itself with individuals outside the limitations expressed in the Bill of Rights.

    Before you make a s2pid statement, learn what the Constitution does and does not state.

  20. #20 |  Windy | 

    “Prosecutors are culturally prone to believe government witnesses and disbelieve accusations against them; it’s patently ridiculous to make them the gatekeepers of what damaging information is sufficiently credible to be turned over to the defense.”

    This bias might be prevented if my idea were to take hold, a requirement that any attorney seeking to become a prosecutor must first have 10 years of active criminal defense under his/her belt.

    It seems to me that would ensure that all prosecutors would have had experience with cops testilying and other prosecutorial tricks designed to diminish the effects of 4th Amendment concerns, so they would not be quite so gullible about cops and other government witnesses, and they’d also have a better understanding of how innocent defendants are often railroaded by the prosecution into pleas because they are frightened of a trial, and would instill greater compassion for defendants in future prosecutors.

  21. #21 |  Bergman | 

    Re: Yizmo Gizmo, #8:

    Always remember one thing when dealing with ANYONE:

    If nobody ever broke the law, nobody would have ever invented police.

    Assuming that because police enforce the law they somehow cease to be human is foolish, at best.

  22. #22 |  Weird Willy | 

    “QUICK! Someone put these noble folk in charge of our health care!”

    Boyd, that would require that we allow the staff of the LADA’s office both to prohibit the provision of health care through means that they do not control and to administer all remaining health care delivery mechanisms. Why in the world would we want to do that?

  23. #23 |  rmv | 

    @19 dwb

    Read the first couple of links

  24. #24 |  Personanongrata | 

    I wonder whats in the water cooler at the LA County DA’s Office.

    These folks are seriously deluded if they believe erecting gatekeepers to guard against the flow of excupatory/impeaching evidence is in keeping with
    Brady v. Maryland, 373 U.S. 83 (1963).

  25. #25 |  Bill | 

    Dave, your argument without a doubt can work both ways. It is important for both sides to have all the evidence. Allow the defense to determine what is important or not to his or her case after all, and I mean all the evidence is available to both sides.

  26. #26 |  David | 

    The Constitution for the United States does no such thing. While so dumbass court claim such, there is NOTHING in the Constitution that requires such.

    “Due process of law” means something to the court system, even if that meaning is less and less with each passing year.

  27. #27 |  Leon Wolfeson | 

    @24 – You need convictions to be re-elected for these jobs. Do the math…”tough on crime” works, especially when you can deploy phrases like “think of the children” against anyone suggesting LESS prosecutions.

    Again, not a problem for a civil service where you’re not paid or promoted directly in line with your prosecution rate.

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