Judge Will Not Dismiss Stevens Case:
Despite prosecutors' failure to disclose potentially exculpatory information in a timely fashion, Judge Emmett Sullivan will not dismiss the corruption charges against Senator Ted Stevens.
"Although the court is persuaded there is a . . . violation, the court is not persuaded that dismissal of the indictment or mistrial is the appropriate remedy," said U.S. District Judge Emmet G. Sullivan. He added that the government's actions had broken his trust in the prosecutors and ordered them to give Stevens's attorneys copies of all witness interviews.
"The court has no confidence in the government's ability" to meet its obligations to ensure a fair trial, he said.
Related Posts (on one page):
- Judge Will Not Dismiss Stevens Case:
- Sen. Stevens' Corruption Trial Suspended Due to Potential Brady Violation:
What? I don't get it. If he really means this how can he in good conscience not dismiss the charges or order a mistrial? What is Sullivan's MO in situations like this? Is he likely to issue some really nasty jury instructions that all but guarantee acquittal? Would a trial lawyer please post something enlightening?
I'm sure the jury feels the same way. No mistrial is need :-)
As for the judge's remarks, again, who knows all that motivates them. I can only surmise at a minimum it is another reminder that the government is on thin ice and another discovery violation may result in a more severe remedy. Since these types of instructions have been available I've never seen a discovery violation jury instruction tip the jury in one direction or another. In fact, when the defense has violated discovery rules in cases involving attorneys I supervise I strongly advise them to not even ask for that kind of instruction. It just diverts attention from the issues that matter.
Incidentally, the court's remedy for this violation is to basically order full "open files" discovery, which is significantly broader and more favorable to the defendant than is required by Rule 16, Jencks, Brady and Giglio. That's a pretty serious sanction by itself, that should reduce the chances of other discovery failures coming to light later in the trial. And W&C has more than enough back-end capacity to analyze everything the government produces in response to the court's order before trial resumes Monday. But there's a strong message being sent here that any more prosecution mistakes are going to be extraordinarily costly.
It will be fascinating to see what happens to Allen on cross-examination with this new information. Trial junkies are going to love the next week...
Redlands is right, without more facts, it's just rude conjecture to be assigning malicious motives to the trial team.
This should be routine. Prosecutors regularly play hide-the-ball. They unilaterally decide which witness statements would be exculpatory. Can you imagine a discovery order in a civil case that says, "plaintiff will provide defendant only those witness statements that plaintiff deems helpful to defendant"? When Prosecutors do provide statements, they still frequently play games. I've known prosecutors to read them aloud and not let defense counsel see the words on paper.
In many US jurisdictions, you have better access to police reports when you are litigating a fender-bender than when the government is trying to take away your liberty or kill you.
Many prosecutors are honest, but all too many cheat all too much of the time. (Do a Lexis or Westlaw search for Brady cases and see for yourself.) Prosecutors have demonstrated that, as a group, they can no longer be trusted to decide what is exculpatory and what is not. Absent a showing of specific risk in a specific case, they must be ordered to turn over all police reports and witness statements in every case. They can't be trusted with any discretion.
You picked the wrong case to make this claim. Here, the Government pretty clearly cheated or was, at a minimum, grossly negligent.
I'd demand a mistrial for my clients in the same situation. And, like this case, I'd probably get something less.
Like it or not, the government makes the calls on what constitutes exculpatory evidence. The courts don't have the resources to be involved in a system of criminal discovery that would suit you. Neither does the defense bar. As far as civil discovery goes, since when does a civil attorney have to inform a party opponent of evidence favorable to that party? And have you ever heard of a civil court judge making such an order? I admit my time in civil trial practice was, blissfully, less than two years, but it was spent entirely in civil discovery and I never heard of such an order.
As for searching Lexis or Westlaw for Brady violations, do a more thorough search and tell us how many cases are deliberate attempts to "hide the ball" and how many are inadvertent failures to provide discovery by a prosecutor simply because he or she has to manage a caseload that does not lend itself to meticulous attention to detail and preparation. I wish I had a dollar for every time, on the eve of trial, a detective walked into my office and give me a supplemental police report that had been misplaced. But it's our obligation to give complete discovery and the police are part of the "prosecution team," so we catch hell from the court. Somebody has to. We get that.
But don't sit back, throw out a few war stories, and lead this audience to believe that government prosecutors are fundamentally flawed. It simply is not true.
Do you really believe that the large number of misplaced supplemental police reports you've received on the eve of trial are due to bad police filing procedures? If a similar misfiled document had been discovered in a search of a defendant's papers after the defendant had stated under oath that it didn't exist, whould you be inclined to charge them with perjury? Finally, would you buy a used car for yourself relying on the honesty of your police witnesses?
I agree that the majority of prosecutors (and defense lawyers) are honest. Some defense lawyers *do* succumb to the sleaziness of many of their clients. On the other hand, more than a few career prosecutors seem to go snow-blind - dazzled by the reflected glare of their white hat.
By the way, the fact that some defense counsel press the edges or cross the lines cuts no ice. Prosecutors work for the government -- they are and should be held to a higher standard.
In the words of Clemenceau "It was not just a crime, it was a blunder."
Like it or not, the government makes the calls on what constitutes exculpatory evidence. The courts don't have the resources to be involved in a system of criminal discovery that would suit you. Neither does the defense bar.
* * *
As for searching Lexis or Westlaw for Brady violations, do a more thorough search and tell us how many cases are deliberate attempts to "hide the ball" and how many are inadvertent failures to provide discovery by a prosecutor simply because he or she has to manage a caseload that does not lend itself to meticulous attention to detail and preparation. I wish I had a dollar for every time, on the eve of trial, a detective walked into my office and give me a supplemental police report that had been misplaced.
</blockquote>
I am graciously willing to make it really easy for overworked prosecutors and police--turn over all witness statements, all police notes, all police reports, all lab notes, all lab reports. As you concede, one problem many prosecutors have is taking the time to figure out which ones are exculpatory in their view and which are not. Turn them all over, and you don't have that problem.
Prosecutors have a constitutional duty to turn over all exculpatory material. If prosecutors can't competently make the distinction between exculpatory and non-exculpatory material (and you seem to say they can't), they should just turn over everything. Plus, if your case is as strong as it should be, you have nothing to lose.
Yes, some defense lawyers cheat. Sanction them. But as the former AUSA pointed out, when you represent the government, you have agreed to hold yourself to the highest standard. And unlike defense counsel, prosecutors have a constitutional duty to turn over much of the material in their files.
In practice, open discovery promotes quick and accurate resolution of cases. If the prosecutor is playing poker, I may take a cases to trial because I mistakenly think the prosecution is bluffing. But if I get all the witness statements and police reports, it's much easier for me to go to my client and say, "They've got you nailed. Only a fool would take this case to trial. Take the deal and feel lucky."
Dishonest, hide-the-ball litigation v. fast, accurate, and fair resolution of cases. That should be an easy decision.
Any government that funds prosecutions has a duty to fund the government's Brady obligations. If prosecutors are too overwhelmed to fulfill their constitutional obligations under Brady, the funding government has only a limited number of choices: 1) find a way for the prosecutors to work more efficiently; 2) cut spending elsewhere and give the prosecutors more money; 3) raise taxes and give the prosecutors more money; 4) prosecute fewer cases; 5) offer the incentives (better deals) so that defendants will take fewer cases to trial.
One choice the governments do not have is to fail to live up to their duty to comply Brady.
As an individual prosecutor, you have a duty not to accept a new case if you cannot handle it ethically. Since you have an ethical obligation to comply with Brady, you are ethically required to turn down case assignments that overwhelm you.
A mistrial order is silly, because the government then just refiles the charges.
So the best, IMO, that a judge could do for a defendant is to continue the trial, allow the exculpatory evidence, and allow evidence that the government tried to hide the exculpatory evidence. This strenghthens the exculpatory evidence.
If a mistrial is declared, then the evidence that the government tried to hide the exculpatory evidence is most likely excluded, or at diminished.