Sunday, September 11, 2016

Government's "protected discovery practices" under fire by the courts

Practitioners in Kansas City know the drill: The government conditions discovery on a promise not to give copies to the defendant, or on an agreement that defense counsel may only view the discovery in the government's office under strict conditions.

These days are coming to an end.

Earlier this summer, Tenth Circuit Judge Holmes, joined by Judge Kelley, issued a concurring opinion in an unpublished case to express "significant concern regarding the ethical or legal propriety" of conditioning discovery on an agreement not to give copies to the defendant.

And last week, Kansas District Court Judge Robinson granted a motion under both Rule 16 and a standard pretrial discovery order to compel the government to give defense counsel copies of videos of controlled buys from the defendant.

In United States v. Perez-Madrigal, defense counsel requested copies of these videos and was told, simply, "no." The government insisted that counsel would have to review the videos in the government's office, without his client present (at least "initially"). After hearing from the parties, Judge Robinson rejected all of the government's justifications (informant safety; evidence safekeeping) for not allowing counsel to have copies, and for excluding the defendant from counsel's initial review of the evidence.

Judge Robinson then went further, pointing out that the government's protected discovery practices "significantly interfere" with the defendant's Sixth Amendment right to prepare a defense; they "undermine[] the fostering of trust between a defendant and his attorney"; and they make it "difficult for counsel to provide effective prepresentation [with respect to plea bargaining], and for the Court to accept a defendant's plea knowing that it was made voluntarily and with knowledge of the factual basis for the plea." Finally, Judge Robinson emphasized that it is "not the responsibility or duty of the USMS" to transport defendants to the government's office to review discovery.

In the end, the Court rejected the government's practice of "applying protective discovery as a default rule to an entire genre of cases." If the government has good cause to restrict discovery in a particular case, it may request a protective order.

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