Nothing is grabbing me for a post today. Maybe because it's Spring Break next week... Or maybe because I have to go to FDC this morning. I dunno...
Anyway, I guess I could write something up about the accountant accused of hiding money in the UBS Swiss bank account.
Or maybe the cops in Ft. Lauderdale who were sentenced in a drug ring yesterday.
I could write about the potential penalties for Donte Stallworth and ask for your opinion about who should get more time -- a DUI defendant who kills someone or a first-time fraudster in federal court.
Hmmmm... Perhaps I should engage the commenter in the post below who asks what I would do if I were U.S. Attorney.
But alas, I need to head out for a couple hours now. Hopefully I'll come back and have some great posting idea. Post suggestions in the comments please.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
I say engage the commenter. Defense attorneys routinely ask for items outside of the scope of Rule 16 and Jencks (setting Brady/Giglio aside, because that should always be turned over). Such as 302s, advance copies of witness lists, witness contact info, including names, addresses, telephone numbers, all notes (regardless of Brady), bills of particulars, personnel records, etc.
ReplyDeleteWhat would be the discovery rules implemented by Mr. Marcus or of any of the AUSA critics on this blog. This is not meant to be a challenge, but a serious discussion. Imagine yourself a prosecutor, not a defense attorney, and not just any prosecutor - the one that gets to set policy for the district, and held accountable for the crime in the district.
Shouldn't Acosta have resigned with dignity instead of just hanging on and hoping he gets a job?
ReplyDeleteWill he bring his disgraced AUSAs with him to teach ethics if he gets the job at FIU?
That he is even considered for the FIU job says something about the caliber of legal education.
I reiterate...If I were us atty, I would have you bring me my coffee every morning, Sullivan would bring me the paper, and that new hot blond would brief me on last nights arrests. And yes, all the notes would be turned over.
ReplyDeleteIn addition, my reasoning for turning over agent (not prosecutor's) notes is that it provides protection for the government and ensures a just trial. Our process is so effective because every scrap of evidence gets tested...failing to disclose information prevents the other side from effectively testing evidence.
all notes period - including investigative notes? Or just the ones of witness interviews? What if the notes are encapsulated in the 302s? Do you still need them? Remember, these are the agents impressions, not always word for word - not the witnesses statements - so not really evidence to be tested.
ReplyDeleteShould this be reciprocal. Rule 26.2 provides reciprocal jencks. As US Atty would you demand that defense investigator notes be turned over as well. Obsturction of justice by defense witnesses that testify is a serious concern you will now have.
By the way, what about all the other items outside of rule 16 that requested - such as the contact information for witnesses and advance copy of the witness list.
to make things easier for you, imagine I am bringing you coffee and the hot blond has given you your briefing.
No, the defense investigators notes do not have to be turned over...unless they are testifying. Addresses yes. Agents intentionally leave information out of 302s. Why should the defense side be the only one concerned with obstruction? Take a look at fla. R. 3.220 for a look at what fair discovery is.
ReplyDeleteso, as US atty, you would meet with the local FBI SAC and instruct that person that all FBI 302s and notes supporting them are going to be turned over (even though not required by statute or case law), and that the 302s should include witnesses addresses (witness intimidation is a possiblity that we will just have to live with).
ReplyDeleteYou would also adopt Fla.R.3.220 as the Southern District's discovery policy and state publicly that Rule 16 is just not good enough. I would imagine that you would also encourage other US Attys to do the same.
What other changes would you make as US Atty?
What other
Remember, these are not changes you would make to make things easier for defense counsel. These are changes you are implementing and believe are appropriate to effectively discharge your duties as United States Attorney.
ReplyDeleteThats it huh, all this complaining and no concrete ideas as to what any of you would do as US Atty other than turn over all fbi notes and witnesses' addresses.
ReplyDelete11:06--So you would require agents to turn over all the reports generated--even if its by a person or about a person who is not going to testify--but you would not then seek defense investigator's notes unless HE IS testifying? That's just crappy lawyering.
ReplyDeleteWhat say you David O.? How would you handle discovery (or other things) if you were asked to be - and accepted the position of - US Atty?
ReplyDelete1:13
ReplyDeleteThat is because I have a healthy respect for the idea that a criminal defendant enjoys certain protections, including the burden of proof. So no, the defense should not have to disclose information that is inculpatory and sp forth.
You really need to get some perspective on what being a "minister of justice" is.
I have perspective. I do good, you do bad. Why should you get any extra help?
ReplyDelete11:06
ReplyDeleteWhy then, should the prosecution have to turn over information that is inculpatory if not using it at trial - under your expanded discovery rules? I would assume you would say because the AUSAs cant be trusted to review for Brady themselves. Under that theory, why should the defense counsel be trusted not to put on evidence that is false or in furtherance of an obstructive plan? Since defendants rarely, if ever, turn over Rule 26.2 materials (and of course they exist) and prosecutors do not push it (nor do judges enforce it), the government never really know how much of that is going on.
Regardless, point being --- you are now US Atty for purposes of this discussion. Are you really going to support a one way street where you are going to send a message (1) to your prosecutors that you dont trust them as officers of the court to do their job, and (2) to the FBI that they cant be trusted to incorporate relevant materials in the 302, and not ask the same of defense??
The standing discovery order requires agents to preserve thier notes...I can only presume based on your comments you tell them to destroy them after preparing a formal report...Why?
ReplyDeleteYour premise is off.
First, turning over that material does not send a message that you don't trust your agents or prosecutors. On the contrary, it says that you have so much confidence in them and their cases, that giving defendants full picture of the facts will never impede justice.
Second, prosecutors should never be weighing possible arguments to figure out if something is Brady--once they start doing it, they have the answer.
Most importantly, you must admit that the office has no effective training program in place to teach incoming AUSAs what is and what is not appropriate behavior reference those obligations. It is truly pathetic because by and large, the people in that office are good, bright, individuals. They are getting ruined by the environment there.
Wow - why does the premise have to be off.
ReplyDeleteThe whole point of the premise is that at the end of the day - you probably would not do anything much different. Training, yes, accountability, yes. But what about actual policies and procedures regarding discovery. Probably not much to change there.
AUSAs are doing their jobs - being advocates for their client - the United States. They also, in the course of their jobs do, by and large, go beyond the confines of Rule 16. For example, 302s are not Jencks - but most AUSAs provide them anyway. No one wants to or aims to prosecute an innocent individual. That AUSAs abide by the rules of discovery does not make them bad people or worthy of the constant criticism on this blog. If you dont like the rules, then instead of griping, find ways to have them changed - b/c clearly, if given the job US Atty, you wouldn't change them youself.
That is untrue.
ReplyDeleteI absolutely would require a greater amount of discovery to be turned over.
I would not suggest as you have, that by providing addresses of witnesses to the defense you are welcoming intimidation -- your view on that is disturbing -- the US Atty's Office views interviews by a defense investigator as intimidation!?
In implementing a training program and enforcing accountability, you would not find people, with credibility, as was done in the NY Times today by a former State Attorney General, criticizing the DOJ -- an institution that has lost track of its mandate....in large part because of the propensity to appoint political hacks like Acosta and like Jimenez, who have no interest to intent in making the office anything other than a conviction machine -- save for the occasional high profile or high power political investigation.
You operate in the worst section (the SD of Fla) of a broken institution (the DOJ). You need ME, or somebody with respect for the idea that the law is an ideal that should be striven for, to take over the office and restore some honor to it.
Would I prosecute people? Absolutely. Would anybody fairly criticize the SD Fla US Atty's Office as "underhanded" "deranged" "broken" or "inept" if I was in charge. Nope.
Would you loose as many cases as you have in the past year or so -- cases that should have been won? Yes...at first. But, after the public begins to gain confidence again in Federal Law Enforcement, the convictions would begin to return and jurors would view Federal LEOs with respect rather than distrust.
Just for the record.
ReplyDeleteNo one said defense interviews are intimidation. It is a fact that it does happen, in addition, often times witnesses do not want their addresses disclosed. Nothing requires it, so people do not do it.
I said training and accountability is a given. I am asking what specific changes to the discovery rules would you make as US Atty - where you now have a different client than the one you are used to defending. You are still welcome to set forth those changes.
Lastly, I do not presently work as an AUSA in Miami.
Hey 4:22, you forgot that the United States wins when justice prevails. If I were US Attorney, I'd fire on the spot several in the news who have disgraced the notion of equal justice for all. Everything would be disclosed to the defense and considered Brady, Roviaro and any other S.Ct. precedent. After all, most defendants are screw-ups and will be back in trouble.If you can't win by playing by the rules, then you shouldn't play the game.
ReplyDelete"Everything would be disclosed to the defense and considered Brady, Roviaro and any other S.Ct. precedent."
ReplyDelete"If you can't win by playing by the rules, then you shouldn't play the game"
Disclosing everything to the defense - including notes, witnesses names, addresses, and all other requests typically found in a defense motion is way beyond the rules..."
So is fabricating evidence, witness tampering, suborning perjury, and lying to a judge.
ReplyDeleteDo you think an AUSA should get fired and prosecuted for that?
Why is everyone so intent on getting off topic?
ReplyDeleteThe prior posts said accountability and training and necessary. Firing is part of accountability.
That does not seem to be what the discussion is about here though - the discussion is about what would a defense attorney change regarding discovery policies if that person became U.S. Attorney. How far beyond Rule 16 and case law would he/she require his/her prosecutors to go? What demands, if any, would they make on defense counsel in their motions for reciprocal discovery??
Since you seem to have a case of "bloggers block," today, I have something for you to blog about: How about telling us all how you feel about your recent "star witness'" latest demise as related to your accusations of government fabrication of witness tampering?
ReplyDeleteI wonder if those plastic handcuffs hurt worse than the metal ones?
http://www.palmbeachpost.com/localnews/content/local_news/epaper/2009/04/01/0401bust.html
Sleep well, Mr. Markus, sleep well
This is exactly why we love kicking the teeth in at trial on thug, gutless, lawless, prosecutors who never ever learn their lesson. You're so stupid and corrupt you equate a drug addict's unfortunate relapse, with the most corrupt, lawless misconduct of any US attorney's office in the country. It makes Alaska look quaint. If only you had the courage to put your name to your post. You and your office are not genuinely accepting responsibility for your crimes, as demonstrated by your comment, so you don't get the third point off. And let me tell you, punk, David sleeps well tonight, as do we all on this side of the isle. Now go kick your dog.
ReplyDeleteIt is unbelievable to me that a discussion that is meant to be an honest dialog on how to better bridge the divide on discovery procedures repeatedly turns into attacks.
ReplyDeleteDisturbing.
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ReplyDeleteWhat the heck? This is the original commenter - had no intention of this discussion. Accountability and training - definitely needed and looks like the USAO is getting that notice big time.
ReplyDeleteBeyond that - Mr. Markus - how would you run the office as US Atty? What changes if any would you make to discovery practices?
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ReplyDeleteThese personal attacks are inappropriate and detract from any point you are trying to make. I am not saying you cant be dissapointed and saddened; but there is no need to make personal attacks on appearance or anything else. That itself is dissapointing and very sad.
ReplyDeleteDavid, please remove that last post.
well said 6:44 a.m. - this topic finally has the blog buzzing (the most posts I have ever seen on one entry), and 9:42 p.m.'s post is pathetic. Doesn't matter what your position on the issue is, that low-end stuff just isn't appropriate here. Save it for a 1-900 line.
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ReplyDeleteBad bad commenters. I go offline for 24 horus and look what happens. I tried to delete all the inappropriate comments. If you see one that I missed, please email me. Thanks, DM
ReplyDeleteNow DM answer the question!....
ReplyDeleteHow about 12:03's comment David? If you going are to leave that one, you might as well leave the one challenging the poster's summation of the article - which said nothing of relapse - rather discussed some sort of presecription drug sales scheme.
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