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Open Letter to Prosecutors re: Discovery

Look, we don’t see eye to eye. I get that. You have your view of the world; I have mine. And our jobs require us to be key components in an adversarial system.

And even though it’s sometimes fun, or funny, to joke about it, “adversarial” doesn’t mean we’re enemies.

Two tennis players on opposite sides of a net are “adversarial” when it comes to the participating in the sport of tennis. They hit the ball back and forth between themselves seeking to place that ball somewhere legally within the bounds of the court whence their opponent is least likely to be able to return it. They try everything within the rules to win.

But they don’t throw things onto the court to trip up their opponent and they don’t “hide” the ball. In fact, in tennis — where there are fair and impartial judges — hiding the ball would result in a lost point for the person hiding it.

Yes, I know. I know. We’re not on a tennis court. You don’t have to worry about the judges on our courts penalizing you for hiding the ball. But that doesn’t make it right. Just because you can hide the ball without penalty doesn’t mean you should do so. Our constitutional system aims at fairness and recognizes what so many of you in private conversations with me deny: the government you represent is very powerful and can easily run roughshod over accused persons, which can result in innocent people languishing in our jails and prisons.

So “adversarial” doesn’t mean “whatever it takes to win, however low, improper, or unethical it may be.”

“Adversarial” means:

[O]ne party with his witnesses striving to prove the facts essential to his case and the other party striving to disprove those facts or to establish an affirmative defense. (“adversary.” Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002. (18 Feb. 2009).)

In particular, nothing about that requires you to hide discovery. Hiding discovery is unfair. Moreover, it’s unethical. In some cases, it’s even illegal. (But, yes, I know: there’s no one to charge you and your buddies on the bench won’t even blink.)

And if you do it because your office’s culture inculcates, praises, or otherwise encourages or requires that behavior, you might want to consider getting another job. “I’m just following orders” hasn’t really worked since Nuremburg. Again, no one is going to punish you — at least not in this life. But stacking the deck, rather than simply presenting the facts and arguing your case, is wrong.

And if you think I’m just some fruitcake defense attorney who “doesn’t get it,” maybe you can listen to these guys instead:

  • American Bar Association: Center for Professional Responsibility: Model Rules of Professional Conduct — Advocate: Rule 3.8 Special Responsibilities Of A Prosecutor.
  • Amicus brief written by former prosecutors, judges and other public officials in a U.S. Supreme Court case where the prosecution hid discovery.

I searched in vain for correlative materials in California. That doesn’t mean they don’t exist. California has words on the books (e.g., Penal Code section 1054 et seq.) indicating prosecutors have to turn over discovery at leastthirty days prior to trial, or as soon as it comes into their possession or constructive possession. Case law occasionally supports this same idea.

Your duties and my duties differ. While I will behave ethically, my duties are defined by law differently and require me to do certain things that you are forbidden from doing.

That you believe I’m doing certain things which may improve my position or damage yours does not justify you in behaving unethically, or breaking the law. The categorical imperative upon which our system of jurisprudence depends requires that you do what you wish others would do, not that you do only what you think (sometimes without more than a hunch) others are doing.

Finally, what do you say we do our respective jobs with the recognition that that’s what we’re doing. My job is to zealously defend my client — even if some prosecutors, former prosecutors and judges think I’m “too much of an advocate” for my client. Your job is to do justice.

And you can’t do justice by behaving unjustly.