An ‘unzip’ drive: Defense bar pushing new rules for broader access to prosecutors’ files

Weary of case-by-case skirmishing over discovery, the criminal defense bar has seized the initiative to push for broad change to the rules governing access to prosecutors’ files.

Defense lawyers are one step closer to winning wider access to police reports and prosecutors’ files, as new recommendations go before the Virginia State Bar at the end of February. The proposal, as floated last year, put prosecutors on the defensive to preserve the status quo. Under the current system, some local commonwealth’s attorneys have an open door policy, others keep their files zipped tight.

The defense lawyers may have an unexpected ally in Attorney General Ken Cuccinelli, who offered sympathetic comments in a recent interview.

Any recommendations for change approved by the VSB would be forwarded to the Supreme Court of Virginia for final review.

The recommendation that the state share police reports and other materials generated a 90-page stack of comments that lays bare the chronic tension between the state and the criminal defense bar over access to law enforcement files.

Each side claims the high ground, with prosecutors invoking their role as “ministers of justice” and defense lawyers critiquing the overall fairness of the criminal justice system. There appears to be little common ground.

Here’s how the defense bar’s reform effort has developed:

A VSB task force last fall recommended mandatory disclosure of police reports and recordings.

The proposal also would allow discovery of witness statements and law enforcement memos. The state would have to provide “relevant information favorable to the accused as to guilt, punishment, or a preliminary matter, including any material facts that tend to impeach or negatively affect the credibility of the Commonwealth’s witnesses.”

The state could withhold identifying information about witnesses unless a court ordered otherwise.

The accused would have to request a discovery order at least 45 days before trial, rather than 10 days. The defendant also would have to disclose any alibi defense at least 14 days before trial.

The rule changes also would require both sides to provide early notice of planned expert testimony.

Comments directed to the VSB fell along predictable lines, with both staunch support for existing rules and practices from prosecutors matched by a plea for change from the criminal defense bar. At least 26 lawyers expressed support for expansion of criminal discovery requirements.

Prosecutors labeled the proposal a “radical and unnecessary departure from long standing criminal practice” in a letter signed by Lynchburg prosecutor Michael R. Doucette, president of the Virginia Association of Commonwealth’s Attorneys.

The rule amendment fails to understand the “criminal mindset,” Doucette said. Criminal offenders “are more willing than other litigants to prevaricate, obstruct justice and perjure themselves,” he wrote.

The reform proposal “seeks to arm criminal defendants with, among other items, witness identities, statements and police reports. Such provisions would provide information from which a guilty defendant could manufacture or fabricate a defense,” Doucette said. Witnesses also would be less likely to cooperate with police if they knew their identities would be known, he argued.

The rule revision would undermine “the ideal of the prosecutor’s role as a ‘Minister of Justice’ without any good cause,” Doucette wrote, adding, “[T]he prosecutor is the best gatekeeper of investigative work product.

“The prosecutor may and often does root through the files of the government in order to assure the defendant has the information that he is entitled to have for his defense,” Doucette wrote.

Some defense lawyers seized on that language as an acknowledgement of lapses by prosecutors. The statement “clearly evidences that the current system is broken,” wrote Deborah Caldwell-Bono of Roanoke.

Many criminal defense lawyers say the high-minded language about prosecutors’ ethical duties is undercut by accounts of failure to disclose information helpful to defendants. “Every attorney has stories like this, where they later discovered exculpatory evidence,” said Lawrence T. Brooke of Annandale.

Brooke recounted a case in which a detective, apparently without any awareness of wrongdoing, failed to reveal that several witnesses adamantly denied his client was the perpetrator. “People are rotting in jail because of this. It is not a game,” Brooke said.

Virginia Attorney General Ken Cuccinelli did not offer comment on the task force proposal. In a recent interview, however, he offered no comfort to the prosecutors’ position. He said he supports open file policies by commonwealth’s attorneys.

“I tend to believe that there is no arena where the government so outweighs the opponent it’s wrestling than in the criminal justice system,” Cuccinelli said. “I prefer more disclosure to less. I think we’ve got to be able to make our case on the facts even if the other side has them, too. I mean the point here is justice, not convictions.”

High-profile cases flag need for change

The conflict is fueled by recent court condemnations of prosecutorial misconduct in two high-stakes cases. A police officer allegedly cajoled a triggerman to implicate a murder-for-hire defendant in the Justin Wolfe death penalty case. Law enforcement officials allegedly coached witnesses to lie to convict Michael Hash of capital murder. Both convictions were overturned by federal judges in the past 18 months.

The two cases “shout out the need for discovery reform,” in the words of B. Leigh Drewry Jr. of Lynchburg, president of the Virginia Association of Criminal Defense Lawyers.

The VACDL urged the VSB to recommend the changes to the Supreme Court. “The current prevailing atmosphere in the Commonwealth’s criminal justice system values the obtaining of criminal convictions over the due process rights of the citizens,” Drewry said.

“A change in this atmosphere will only be effective if it comes from ‘the top’ down, namely from the Virginia State Bar and the Supreme Court of Virginia,” Drewry wrote.

The Wolfe case may already have wrought change. Northern Virginia Capital Defender Edward J. Ungvarsky said concern over the Wolfe case prompted many Virginia prosecutors to provide “open file” discovery, including discovery of police reports, in all but one of his capital cases.

The result is better for both sides, Ungvarsky said: Arguments “over hiding the ball and Brady are minimized,” he wrote.

Defense lawyers specifically offered praise for the open file policies of commonwealth’s attorneys in Alexandria and Arlington County. Several suggested such policies indicate the VACA position may not reflect the views of all Virginia prosecutors.

Even though she maintains an open file policy, Arlington County Commonwealth’s Attorney Theophani K. Stamos said she is in “complete agreement” with the position of the VACA. She said in an interview she would urge the VSB not to send proposed amendments to the Supreme Court.

Doucette said some of the comments from the defense side seem to miss the mark. No change in Virginia rules will affect the underlying requirement to hand over information helpful to the defense. “The rules on exculpatory evidence remain the same, and that’s constitutional,” he said in an interview.

No consistent practice

Defense lawyers complained their access to police information varies greatly from place to place.

One bone of contention is the policy of Fairfax County law enforcement to withhold police reports from defense lawyers. The head of the Fairfax public defender’s office said all 20 attorneys in the office welcomed the proposed change to allow access to officers’ reports.

The change would benefit both sides, according to Public Defender Todd G. Petit. Production of these reports will finally alleviate the commonwealth’s burden to determine whether or not something in a police report is exculpatory, he wrote.

Other criminal defense lawyers complained about jurisdictions that allowed review of police information, but refused to allow making of copies. In a murder trial, “it took me 8 hours to hand copy all of the police reports and witness statements that would have taken just a few minutes to copy,” said Stephanie G. Cox of Blacksburg.

The “great disparity” between open file jurisdictions and those that give only mandated information results in “similarly situated defendants being treated very differently,” said Esther J. Windmueller of Richmond.

One prosecutor said the expanded rule is so vaguely worded, prosecutors won’t know what they should turn over. “Many times, I believe that specific information is extremely unfavorable to a defendant, but the defense attorney spins that same information” to look favorable in the eyes of the fact finder, wrote Kieran Carter, a Fairfax County assistant commonwealth’s attorney.

The director of the state laboratory said the proposal for written expert disclosures would bog down state scientists with time consuming consultations with one or both parties.

A coalition targeting domestic violence opposed making witness statements and identities available to defendants. “We have grave concerns this rule change will have a chilling effect on victims and witnesses in these cases,” wrote Tonya Mays, chair of the Coalition Against Domestic Violence for the 24th Judicial District.

Faulty process?

Some lawyers took issue with the process that produced the reform proposal.

Neither the Virginia Supreme Court nor the General Assembly sought a change to the current discovery rule, said the VACA. The Suffolk commonwealth’s attorney’s office suggested the VSB stepped outside its regulatory mandate “in promoting an unsolicited rule proposal from a unilaterally self-appointed ‘Task Force’ with a self-serving bias and agenda.”

The Martinsville commonwealth’s attorney’s office said prosecutors were “grossly underrepresented” on the panel, noting the original 19-member task force included only three practicing prosecutors.

Defense lawyers claimed the prosecutors walked away from the project in an “unfortunate about-face.” With three prosecutors at the table, the group agreed to the text of the proposed rule and agreed it “reflected consensus arrived at in a spirit of compromise by all stakeholders,” said Falls Church defense lawyer David Bernhard. Afterwards, Bernhard said, the VACA withdrew from the process.

“By leaving the debate, the VACA marginalized its role as a partner in improving the system of justice,” Bernhard wrote.

Doucette said the three prosecutors pulled out from the task force when other members kept trying to renegotiate a compromise starting from the last compromise. “There was no give and take. There was a lot of taking and not a whole lot of giving,” he said.

The VACDL also was unrepresented at the task force deliberations. The group produced its own version of a reformed discovery rule, but leaders of that group indicated they were willing to support any effort to liberalize discovery.

“Although the proposed rule is not perfect, it represents a great step forward in the long-overdue demise of trial by ambush in criminal prosecutions in the Commonwealth,” wrote VACDL president Drewry.

The proposed rule changes are expected to be considered by the VSB council in February, with the council’s recommendation then going to the Supreme Court.