Wednesday, July 20, 2011

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.”


Steve said...

Federal civil practitioners who never dip their toes in the waters of federal criminal practice are routinely shocked when they learn how little actual discovery occurs in criminal cases, despite the manifestly more crucial matters at stake: life and liberty. I like the discovery rule changes David proposes. I also believe many of the federal discovery abuses could be significantly curbed if defense lawyers were permitted one or two early depositions, including of the case agent, to ascertain what kinds of materials might be discoverable. One of our more difficult problems is that we have almost no way of learning, absent blind luck, what types of materials the government is withholding, and so we often can't articulate in our motions to compel the specific materials the court should order produced. Depositions should help cure that.

Calli said...

Apparently, Lanny subscribes to the philosophy that "the best defense is a good offense," probably because under his watch, DOJ has taken 3 steps back in the reputation category.

Lanny's DOJ has suffered an unprecedented string of high profile failings, rebukes, and admonishments across the country for misconduct and failings related to its "win at all costs" mentality.

And still Lanny tours the country, standing on his phone books, claiming to be the authority on ethics, and believing defense lawyers care what he thinks. About anything.

Francesco said...

Methinks the tape of his remarks produced to you by the government was manipulated.

What I think he said was :

"I think prosecutors are more aware of their ethical obligations today and how to get around them without anyone knowing, than they may ever have been – and, as far as I’m concerned, that’s a good thing.

Just sayin'.....

Anonymous said...

Why is a prosecutor attacking the defense bar? Because he is a prosecutor. Am I missing something?

Bob Becerra said...

I have fully supported the proposed changes to Rule 16, and really cannot fathom the DOJ's opposition to those proposed changes. I would love to hear from a local prosecutor what he or she believes the problem with the proposed changes are.

Rumpole said...

I have his cell phone if you really want to set up a debate. Plus the jerk owes me money.

Anonymous said...

Ah..and here is a perfectly timed development of another "mistake".

Honeywell Accuses U.S. of Misconduct in False Claims Suit Over Body Armor

Oh they must have just "forgotten" those 120,000 pages of exculpatory evidence. Honest mistake.

And no, that's not a typo.

Anonymous said...

The simplest rule that should bring prosecutors in line is: If a conviction is obtained and evidence was witheld or manufactured, then the conviction is avoided and double jeopardy would apply - no need for a "harmless error" analysis.
The fact that so many innocent people have been convicted shows that most prosecutors seek the win and not justice.
After all you can have appellate review of a judge's actions but if a prosecutor screws up - for the most part - there is no punishment and they get another bite at the apple.

Anonymous said...

I wholly support full disclosure for both sides. The defense should also turn over all the evidence they intend to rely on at trial. That way the truth seeking function commonly invoked by defense and government lawyers is fully preserved. Of course, I imagine that most defense lawyers would take issue with such a regime.

Anonymous said...

This is what I am talking about - 5:07 pm is probably a prosecutor. And that is just pathetic. Burden of proof and little consitutional guarantees create the greatest system of justice in the world and it is the government's burden to present evidence to prove its citizens guilty of an allegation , beond a reasonable doubt .

that comment was so silly i cant even get my irish up over it.

Laser said...

Do you really believe the DOJ is trying to make an "ethical" correction of due process?

Why did former AG Ashcroft go before the Hague Global Forum on Corruption and say Corrupt Federal Judges in Collusion with Hi ranking members of the US Trustee's office are assaulting and extorting US Citizens into submission.

Then, former AG Ashcroft was given an $50 million NO Bid contract by NJ US Attorney Chris Christie - who was rewarded with party strength to become Governor.

Why did H Marshal shift from OPR to head of USA's

So no one would question why former DE US Attorney killed the investigation and prosecution of Goldman Sachs, Bain and their Attorney in eToys.
When the US Attorney was a partner with the MNAT firm and Sachs/Bain were MNAT clients - during the very year the massive fraud and perjury began.

How did Petters Ponzi get along for 10 years where Larry Reynolds, being investigated by DOJ, IRS and SEC laundered $12 billion in Vegas - WHILE in WISTEC
Because a brother of a MN Asst US Attorney was involved with the scheme.
But we will not hear his side of the story - as he (purportedly) committed Suicide. And not even the Star Tribune will tell any part of the story.

Much evidence given to the OIG, SEC, Public Integrity Section, OPR, FBI, Corp Fraud Task Force, OGE, EOUST (where the Director did then RESIGN)

Which was reported to the Office of Special Counsel (whistle blow on Government bad faith) and the FBI raided his home and office for destroying case files.

When all this and more was given to the US ATtorney in SoCal Public Corruption Unit Task Force - he simply walked into a staff meeting yelled and THREATENED career Asst US ATtorney's to keep their mouths shut or ELSE
and then he shut down the Public Corruption Unit Task Force