Prosecutors and discovery

A case pending at the U.S. Supreme Court was recently settled out of court, and the case withdrawn from consideration.  It appears that there has been a settlement of $12M, for prosecutorial misconduct.

"This means prosecutors who step outside their traditional role and who act as investigators (in criminal cases) can still be subject to civil rights lawsuits just as police would be."

Prosecutors are normally immune from lawsuits involving work during trials. The 8th U.S. Circuit Court of Appeals decided in McGhee vs. Pottawattamie County in 2008 that plaintiffs could sue prosecutors under civil rights statutes if the alleged wrongdoing arose from investigatory work before the trial started.

Reports the Des Moines Register.

With justices [of the U.S. Supreme Court] signaling they might favor the men, the county settles for $12 million.

Decades later, they [the wrongly accused and convicted] were able to obtain official files showing that police and prosecutors Dave Richter and Joe Hrvol coaxed the witness to implicate them, while ignoring evidence that pointed to the white suspect. The sole witness against the two men recanted his testimony.

This is what is known and what I frequently talk about as Confirmatory Bias.

But several justices said they found that argument appalling. They signaled they were not prepared to shield prosecutors who knowingly fabricated a case against a suspect.

Reports the LA Times (emphasis added).

Prosecutors who mishandled the investigation into a deadly 2007 Blackwater Worldwide shooting face a possible misconduct citation from a judge who says they withheld evidence and violated the guards’ constitutional rights.

Reports  And I’m sure you’ve seen other reporting on the dismissal of the Blackwater case.  Here is a link to a better article and also the District Court opinion.

I have blogged about discovery here, here, and here.   There have been a number of developments in prosecutor discovery issues and as a result the Department of Justice has done an overhaul of their internal rules and procedures.  In response to multiple cases where U.S. Attorney’s have failed miserably their discovery obligations, the DoJ has issued these new policies.

  • Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
  • Requirement for Office Discovery Policies in Criminal Matters
  • Guidance for Prosecutors Regarding Criminal Discovery

These policies should be taken to heart.  For example, trial counsel routinely say they don’t have to go looking beyond their own file and frequently refuse to search law enforcement files.  Well you say, it’s the civilian prosecutor.  Not so.

United States v. Mott.  “Prosecutors still playing games with discovery,” is how I titled my blog on this case.  United States v. Behenna.  This is an ongoing saga similar to the issues and problems in Mott.  In each case the prosecutor came across their own expert who had things to say about the case they didn’t like.  There’s no obligation to use the expert.  However, in each circumstance the prosecutor had an affirmative obligation to tell the defense.

"the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police."

Kyles v. Whitley, 514 U.S. 419 (1995).

Here is a DOJ training effort, TJAGSA where are you, you do the best work in MJ training.  (n.1)  In addition, we (DOJ) will:

  • Create an online directory of resources pertaining to discovery issues that will be available to all prosecutors at their desktop;
  • Produce a Handbook on Discovery and Case Management similar to the Grand Jury Manual so that prosecutors will have a one-stop resource that addresses various topics relating to discovery obligations;
  • Implement a training curriculum and a mandatory training program for paralegals and law enforcement agents;
  • Revitalize the Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information recovered as part of federal investigations;
  • Create a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.


N.1.  Sorry, used to get in trouble all the time  for suggesting/recommending that military justice training be consolidated at TJAGSA.  Do like the Armed Forces Staff College does.  Have a “service week (or component)” at the end or beginning of the Basic Course.

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