The Prosecutor’s Gamble.

United States v. Jones, No. 07-10289-MLW, 2009 U.S. Dis. LEXIS 6434 (D. Mass. 21 January 2009).*

Prosecutors do this all the time. Prosecutors either fail to provide discovery or do so in a slow-rolling fashion. As the recent decision in Jones illustrates, it’s a gamble. The gamble is that provided there is no showing of actual prejudice to the accused, there is no case related consequence, and possibly no personal consequence to the prosecution.

In Jones there is a history of discovery problems from that U.S. Attorneys Office. The appellant wanted to suppress evidence. The prosecutor objected to a suppression motion based on information provided by the police. The judge, fortunately for appellant, held the hearing. It was during the hearing that the failure to disclose Brady[1] material came to light.

It has been long and clearly established that exculpatory information includes information that is potentially useful in impeaching government witnesses, as well as information that directly tends to negate guilt. See Giglio; United States v. Misla-Aldarondo.

Military prosecutors need to remember the point about having to disclose impeachment information. This is a consistent problem I see in military trials. “When dealing with cases of delayed disclosure ‘the critical inquiry is . . . whether the tardiness prevented defense counsel from employing the material,” in a positive way. Where counsel get the material and make effective use to impeac, then there probably isn’t any prejudice.

Military defense counsel need to remember this point in arguing the prejudicial effect of delayed disclosure (delayed disclosure being the most common violation). So here is the gamble for prosecutors, which in the military they nearly always win.

The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government’s duties to disclose in cases assigned to this court. However, this court has long shared the view, that generally a defendant should not be rewarded, and the public should not be punished, for a prosecutor’s violation of constitutional and ethical duties that do not prejudice the defendant. Rather, in some such cases a sanction should be imposed on the prosecutor personally. (Citations omitted.)

Compared to the court in Jones, the military accused has no remedy, no reasonably available sanction.

[1] Brady v. United States, 397 U.S. 742 (1970).