The Ninth Circuit thinks the DA should just give you the file already.
by: Rjohnson • September 28, 2012 • no comments
In an entertainingly snarky opinion, J Kozinski of the Ninth Circuit held in US v. Leal-Del Carmen that when the government deports a favorable defense witness in bad faith, it amounts to a constitutional violation and leads to dismissal of the indictment.
The opinion is worth reading for state practitioners mostly for its entertainment value, especially because the record suggests petty police dishonesty (whether they had interviewed all the witnesses in a group, or just a few), and the opinion author is skeptical. Because the case is federal, it does not discuss what would happen if the favorable defense witness were deported by federal authorities while prosecution was pending in state court. If I had such a case, I would surely try some creative motion practice, or possibly try to enlist the Federal Public Defender for assistance.
There is one passage in the opinion that a state practitioner might cite in state court. Footnote 4 of the opinion reads, in its entirety:
We were surprised to learn that the Justice Department required defense counsel to make discovery requests rather than voluntarily and promptly turning over discovery materials. Since most criminal defense lawyers are appointed, see Caroline Wolf Harlow, Bureau of Just. Stat., Defense Counsel in Criminal Cases 1 (2000), the cost of preparing discovery requests is generally paid with public funds. See 18 U.S.C. § 3006A(a), (i). It's difficult to understand how the Justice Department justifies imposing this expense on taxpayers and the court, or reconciles it with the government's duty of fairness in criminal cases. See Berger v. United States, 295 U.S. 78, 88 (1935) ("The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.").
That is worth citing, if only for its persuasive value, in one of the stupid discovery disputes that always seems to arise when the prosecution has a computer file that they don't feel like copying or they want to charge $.50/page plus $25 an hour for secretarial time. Part of the problem in discovery disputes is that they come before the judges so rarely; it might help to see another judge scolding the prosecution for petty obstructionist tactics.
