Washington, DC (July 15, 2015) – Today, the National Association of Criminal Defense Lawyers (NACDL) brought its years-long effort to secure the public release of the Department of Justice (DOJ) Federal Criminal Discovery Blue Book to the U.S. Circuit Court of Appeals for the District of Columbia Circuit, filing its opening brief this afternoon. In it, NACDL argues that the Blue Book may not be withheld as work product or as law enforcement information whose disclosure risks circumvention of the law.
In response to the public furor over the "egregious misconduct" by DOJ prosecutors in the case of the late Senator Ted Stevens, whose conviction was vacated after post-trial investigations revealed that prosecutors had withheld significant exculpatory evidence from the defense, DOJ's Office of Legal Education published, but has not made available to the public, a text referred to as the Federal Criminal Discovery Blue Book. In December 2012, NACDL filed a Freedom of Information Act (FOIA) request with the DOJ seeking the disclosure of the Federal Criminal Discovery Blue Book, which was denied, as was its subsequent effort at disclosure in the U.S. District Court for the District of Columbia.
"The problem of nondisclosure and late disclosure in criminal cases is one of a Constitutional dimension – it speaks directly to the right to due process under the law. Fairness and transparency demand the release to the American people of the contents of a document the Department of Justice told Congress was intended to protect and preserve the public's right to due process," said NACDL President Theodore Simon.
As set forth in the Complaint filed on February 21, 2014, in the U.S. District Court for the District of Columbia, during a series of congressional hearings concerning prosecutorial misconduct in Sen. Stevens' case:
…DOJ asserted that federal legislation was unnecessary to prevent future discovery abuses because it had instituted various internal reforms. During the hearings, DOJ asserted it had implemented "rigorous enhanced training" to ensure that "prosecutors and agents [have] a full appreciation of their responsibilities" under federal law. Statement for the Record from the Department of Justice: Hearing on the Special Counsel's Report Before on the Prosecution of Senator Ted Stevens Before the S. Comm. on the Judiciary, 112th Cong. 3 (2012) ("Statement for the Record"). As part of this effort, DOJ stated that it had created a "Federal Criminal Discovery Bluebook" that "comprehensively covers the law, policy, and practice of prosecutors' disclosure obligations" under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Id. at 4. According to DOJ, the Blue Book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal." Id.
To date, DOJ declines to disclose this text.
Of course, the case of Sen. Stevens is but one instance, albeit a very high-profile one, in which the rights of accused persons in America's criminal justice system have been violated by prosecutors' failure to discharge their duty to disclose favorable information to the defense. The problem is well-documented and has been the subject of extensive coverage and editorials by leading American newspapers, including the Los Angeles Times, whose editorial board in late December 2013 endorsed NACDL's model discovery reform legislation in "Editorial: Don't ignore the Brady rule: Evidence must be shared." And in January 2014, the New York Times ran "Editorial: Rampant Prosecutorial misconduct," explaining that "fighting prosecutorial misconduct is not only about protecting the innocent," but also preserving public trust in the justice system and the foundation of the rule of law.
In 2012, NACDL's Task Force on Discovery Reform drafted model legislation that would require disclosure of all evidence favorable to the accused, regardless of any assessment of whether the evidence was material. This approach was embodied in the Fairness in Disclosure of Evidence Act, federal legislation introduced in 2012 by Senator Lisa Murkowski (R-AK), with bipartisan co-sponsorship and support from a broad coalition ranging from the ACLU to the U.S. Chamber of Commerce. NACDL has undertaken a number of research and advocacy projects to support this important measure. NACDL is likewise supporting the efforts of its state affiliates—through advocacy, resources, and model legislation—to enact open-file discovery rules and legislation.
Kerri L. Ruttenberg, a partner in the Washington, DC office of the Jones Day law firm, is lead counsel to NACDL in this matter and is working with a team of lawyers from her firm.
More information concerning NACDL's work in the area of discovery reform is available at www.nacdl.org/discoveryreform.
Pattern Cross-Examination for DNA and Biological Evidence: A Trial Strategy Guide
NACDL’s Pattern Cross-Examination for DNA and Biological Evidence will assist criminal defense practitioners in scoring points when cross-examining forensic experts in cases involving DNA and biological evidence. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses without reinventing the wheel with each new case. It includes pattern questions that can be used to dominate prosecution DNA experts and level the playing field at trial.
Cross-Examination of the Analyst in Drug Prosecutions (2nd Ed.) By James M. Shellow
Now in its second edition with some new material, James M. Shellow’s book offers what its title promises: ways of thinking about cross-examining the forensic analysts in drug cases. But the book is so much more than that. It offers a look inside the mind of one of the finest cross-examiners and defense lawyers the United States has produced in the last seventy years. This small book can inspire and direct you in making big changes in the way you defend your clients and think about the entire project of trying any case.
Justice For All, Justice Now White T-Shirt (Women’s)
This custom, vintage-faded NACDL t-shirt is 50% polyester, 25% cotton, and 25% rayon weighing 5.2 oz. and is lightwieght, flexible and soft, providing maximum comfort. It features the "Justice For All, Justice Now" slogan and Lady Liberty image on the front, with the NACDL logo on the back. Currently available in both men's and women's sizes in both black and white colors. View the full line-up of colors and sizes on our online store, as well as our other popular and best-selling t-shirt designs at: nacdl.org/store.
Drug Cases Resource Materials Collection - CD-ROM
NACDL’s Drug Cases Resource Materials Collection is the sweeping culmination of every single article of written materials ever published from each installment of NACDL's annual "Defending Modern Drug Cases" seminar. Totaling over 12,000 pages, this vast collection includes 12+ years of motions, briefs, reports, outlines, transcripts, case citations, scholarly articles, powerpoints and other written commentaries. This collection provides trial strategies and tactics you can immediately apply to your current cases.
Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases
Whether it is insanity, impairment, a disorder, or adolescent brain development; mental health and intellectual competence issues affect pretrial supervision, trial and sentencing, and your chances of successfully advocating for your impaired client. This training provides ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing.
Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or firstname.lastname@example.org for more information.
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.