Justice Department Can’t Hide Contents of Criminal Discovery Manual, Then Use It to Block Reform, TCP Tells Court

The Department of Justice cannot refuse to make public the contents of its manual that explains how and when federal prosecutors must disclose information favorable to a criminal defendant pursuant to the Supreme Court’s decision in Brady v. Maryland, The Constitution Project argues in a friend-of-the-court brief filed with the U.S. Circuit Court of Appeals for the District of Columbia on July 22. The brief contends that “government agencies cannot cite to secret governmental materials as part of a public debate on an issue, then withhold those materials when the public asks to see them.”

The manual is called the Federal Criminal Discovery Blue Book and has been used by DOJ to fight federal criminal discovery reform efforts. “By injecting the Blue Book into the important public debate about Brady issues, at the highest levels of government, DOJ made clear that the Blue Book is exactly the sort of information that must be disclosed,” the brief claims.

The U.S. Supreme Court recognized in its landmark 1963 decision in Brady v. Maryland that the due process clause of the Constitution obligates prosecutors to make potentially exculpatory evidence available to defendants. While most prosecutors make good-faith efforts to comply with this duty, confusion and disagreement regarding the scope of required disclosures often leads to the failure by a prosecutor to provide necessary information, referred to as a “Brady violation.”

In 2012, Senator Lisa Murkowski (R-Alaska) introduced bipartisan legislation that would clarify prosecutors’ disclosure obligations and provide courts with the necessary tools to hold violators accountable. The Constitution Project released a statement from more than 150 criminal justice system experts, including more than 100 former federal prosecutors, supporting discovery reform. The Department of Justice vehemently opposed the legislation, stating that Congress need not act because the agency was addressing these concerns through internal training and other changes, including creation and dissemination of the Blue Book.

Despite the department’s assertion, the friend-of-the-court brief argues “discovery violations in federal prosecutions continue.” The brief also cites Ninth Circuit Chief Judge Alex Kozinski’s recent opinion that “Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.”

Release of the contents of the manual to the public is necessary to “hold DOJ accountable and ensure that DOJ itself is not circumventing the law (Brady) by hiding behind its own manual,” the brief says.

The Innocence Project, an organization dedicated primarily to providing pro bono legal and related investigative services to indigent prisoners whose actual innocence may be established through post-conviction evidence, joined TCP in filing the friend-of-the-court brief in support of NACDL, which was prepared with generous pro bono assistance from Miller & Chevalier.

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