Judge Paul Friedman of the U.S. District Court for the District of Columbia says he's "radicalized" when it comes to prosecution disclosure obligations. He is a proponent of a federal rule that clearly spells out the government's obligation to turn over favorable evidence to defense lawyers.
"We are preaching the gospel. We are hoping, some of us, there will be a change in the federal rules," Friedman said Thursday evening during a panel discussion among defense lawyers, prosecutors and academics who addressed discovery obligations at the American Bar Association’s office in downtown Washington.
Friedman, long a proponent of a rule change, was the lone judge on the panel last night. His call for an amendment to the federal rules of criminal procedure was backed up by several defense lawyers, including Williams & Connolly partner Robert Cary and Zuckerman Spaeder partner Morris "Sandy" Weinberg Jr., who moderated the 90-minute discussion.
Friedman called himself a “frustrated judge”--one among others in the judiciary who are no longer playing largely silent, inactive roles in stressing prosecution obligations. Judge Emmet Sullivan, a colleague of Friedman's, earlier this year recommended a Judicial Conference committee take up debate once more on amending Rule 16 of criminal procedure. (Click here for a National Law Journal article about the discussion at a committee meeting last month in Seattle.)
To address the concern in the judiciary, the Justice Department is implementing a mandatory annual training program for prosecutors to ensure government lawyers follow their obligations, said the Justice Department’s Gary Grindler, the deputy assistant attorney general for the Criminal Division. The department is also creating a position at Main Justice to oversee discovery reform. But the department is not willing to accept an overhaul to the criminal rules that would put a greater burden on prosecutors to turn over favorable information to defense lawyers.
The Justice Department has been under fire since the collapse of the Ted Stevens case earlier this year stemming from alleged prosecution misconduct. Grindler, who sat next to Friedman on the panel, must have thought he was being teamed up on last night.
“The Attorney General has made it very clear that he is committed to ensuring that department prosecutors are the most professional and ethical lawyers in the country. I think the actions we are taking now back that statement up,” said Grindler, a former partner at King & Spalding in Washington who now supervises the Justice Department's fraud and appellate sections.
Grindler last night repeated the words of Lanny Breuer, the head of the Justice Department Criminal Division, when he said the department is seeking “comprehensive approach” that goes beyond a rule change. Still, Grindler said the department recognizes that training alone is not enough and that supervision will pivotal moving forward.
Grindler, who attended a meeting yesterday at Justice to discuss ongoing discovery reform, said the department is considering creating a guidance manual for prosecutors that would detail specific situations and the department’s expectations for disclosure. A guidance manual, Grindler said, would give prosecutors another tool to better evaluate what needs to be turned over.
“We at the department think we are moving down the right path, trying to do what’s right,” Grindler said. He said he "categorically disagrees" with any notion that there is a culture of "gaming the system" among Justice Department prosecutors.
Cary, a lead attorney for former Alaska Senator Ted Stevens, commended the Justice Department for addressing discovery reform but said a rule change is still needed. Changes to the U.S. Attorney's Manual in 2006 did not go far enough, Cary said. "To me there needs to be a rule and there need to be remedies," Cary said.