Why is Lanny A. Breuer attacking the defense bar?

Assistant Attorney General Lanny A. Breuer of the Criminal Division spoke at the National District Attorneys Association Summer Conference in Sun Valley, Idaho today and said the following:

Before I conclude my remarks this morning, and I hope there will be plenty of time left for questions, I want to discuss one other issue with you, on which we are all focused: our ethical obligations as prosecutors.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations. These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward. And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago. And I suspect that is true for many DA’s offices across the country as well.

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct. This kind of gamesmanship is unfortunate. The steps we have taken go further than what the Supreme Court requires. And they go well beyond what any prior Administration has done. That’s a fact. Do we need to remain vigilant? Absolutely. At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

As prosecutors, we occupy a unique role in the criminal justice system. Our job is not just to win cases, but also to do justice in every case. I think prosecutors are more aware of their ethical obligations today than they may ever have been – and, as far as I’m concerned, that’s a good thing.

How strange, no?

Was this a message to the judge in the Roger Clemens case that he should find that the prosecutors simply made an honest mistake? If you were Roger Clemens, wouldn't you want your lawyer to pursue the issue and fight for no retrial? To bar a retrial, part of what the defense must show is that the behavior of the prosecutors was intentional. Clemens' lawyer would be committing malpractice not to argue that it was intentional after the prosecutors disregarded the judge's order by playing the tape and then leaving the image on the screen during the sidebar. Don't prosecutors argue that defendants have acted in bad faith all of time based on far less circumstantial evidence?

In any event, I challenge Mr. Breuer to a debate on the subject of prosecutorial and defense ethics. Just for starters, I would ask Mr. Breuer why DOJ is opposing a change to Rule 16 (as suggested by the ABA and on July 7, by NACDL) requiring what their guidelines merely suggest.

I have written an op-ed on this subject, as have others.

I do like the part where he says prosecutors must seek justice, not a win. Here's part of what I wrote about that (back in May) in connection with the government's discovery obligations:

The AG reminded prosecutors that they were tasked with doing justice, not winning. Ethical standards established by most state bar rules also require disclosure, even if the evidence is not “material.”

All of this sounded very promising, but actions speak louder than words.

Prosecutors continue to keep their files closed, telling lawyers and judges that they need not disclose basic items such as interview reports of witnesses, even when those witnesses lie under oath, because their boss’s guidelines and state ethical rules are not the law and therefore are not binding on them.

Because of these recurring problems, on April 22, 2011, in Miami, the American Bar Association’s Criminal Justice Section passed a resolution “urging” a change in the federal rules to require prosecutors to timely disclose all favorable information to the defense.

Only the Department of Justice member of the section voted against the resolution, arguing that individual prosecutors could be trusted without such a rule. Many judges, including Paul Friedman in Washington, D.C., have explained why the “trust us” argument is flawed: “Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is speculative on … many matters that simply are unknown and unknowable before trial begins.”

Based on these guidelines and cases, a simple — and what should have been uncontroversial — change was suggested to the federal criminal rules: prosecutors would be required to turn over all favorable information to the defense, not just “material” evidence.

Despite the ABA’s resolution, the Department of Justice just convinced the Criminal Rules Advisory Committee (the group that recommends changes to the Federal Rules of Criminal Procedure) to vote down (on a 6-5 vote) this proposed rule change.

Perhaps the Department of Justice would like to amend the plaque found in federal courtrooms that reads: “We who labor here seek the truth” with the addition, “only if we think it is material.”