Prosecutors: Start over on criminal discovery

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Virginia prosecutors are urging the Supreme Court to launch a new study of proposed reforms to court rules governing what information prosecutors are required to share with defense lawyers.

The request for a new task force by the Virginia Association of Commonwealth’s Attorneys is among dozens of comments received by the Supreme Court of Virginia on proposed changes to criminal discovery rules. The amendments would require production of police reports, among other information.

While prosecutors urge more study, an influential state legislator signals that the General Assembly could limit or override any rule change expanding criminal discovery.

By a strict nose count, Virginia lawyers and legal observers seem to be about equally divided on whether the court should require prosecutors to open more of their files to defense lawyers.

Of comments received by the court from individual lawyers and lay persons, 17 favored rules requiring more disclosure by prosecutors while 17 opposed the idea.

Bar groups weigh in

Reviewing comments of statewide bar groups and other organizations, however, an overall push for change emerges.

Five bar groups and the state Indigent Defense Commission favor expanded discovery as proposed by a Virginia State Bar task force.

The proposal for criminal discovery reform gets a thumbs-up from the Virginia Trial Lawyers Association (plaintiffs’ lawyers), the Virginia Association of Defense Attorneys (civil defense lawyers), and the Virginia Women Attorneys Association. Not surprisingly, more open discovery also is favored by the Virginia Association of Criminal Defense Lawyers and the Virginia Indigent Defense Commission, which staffs public defenders’ offices and trains criminal defense lawyers.

Prosecutors want fresh study

The VACA – representing Virginia’s 120 elected commonwealth’s attorneys – said the issue of rule-based criminal discovery still awaits “a full and fair discussion.”

In a letter from VACA president Michael R. Doucette of Lynchburg, the group suggested the court “convene a working group to start afresh in discussing this topic.”

The prosecutors propose a work group made up of an equal number of prosecutors and criminal defense lawyers from large, medium and small jurisdictions, along with representatives of circuit judges and law enforcement agencies.

Doucette said the VACA proposal follows the “basic framework” of his comments to the VSB Council when that panel forwarded a task force recommendation to the court.

The VACA recommendation to “start afresh” renews the debate over whether the discovery issue has been fairly studied already.

Discouraged with the process followed by the VSB task force, prosecutors left that group in 2011 and have expressed opposition to change ever since.

Supporters of expanded discovery say the prosecutors bailed on a comprehensive study effort, while prosecutors contend there has yet to be a fair forum for discussion of the issue.

“We are willing to engage in such a full and fair discussion,” Doucette wrote on behalf of the VACA.

The VSB Council in February rejected Doucette’s call for more study and sent the proposed amendments to the Supreme Court with only three dissenting votes.

The proposed rule changes would tip the balance of fairness in favor of criminal defendants, Doucette argued. When a practice rule becomes favorable to a criminal defendant, it becomes unfair to society, he said.

“Witnesses are far less likely to participate willingly in a prosecution if their identities are sure to be known to a criminal offender,” Doucette wrote.

Assembly holds trump card, Norment says

Meanwhile, one legislator suggested the General Assembly could undermine any expansive reform effort by the court.

Sen. Thomas K. Norment Jr., R-James City County, said that, as chair of the Senate Courts Committee, he has already received inquiries about proposed legislation “limiting and overriding any judiciary enactment of an expanded ‘discovery and inspection.’”

Norment said while some changes are needed to level the playing field, he thinks the proposed amendments go too far. He pointed to incidents of juror and witness intimidation, and warned about one proposed change that would allow access to statements of prospective witnesses.

Change needed, say defenders

Public defenders and criminal defense attorneys said it is time for a measure of reform.

“A change in favor of broader discovery is long overdue,” wrote retired Circuit Judge Alan E. Rosenblatt of Virginia Beach as chairman of the VIDC. “Access to the facts set forth in police reports is fundamental to enabling both sides to arrive at the fair resolution of a criminal trial,” he said.

The “sky will not fall” if commonwealth’s attorneys have to provide copies of police reports, said the VACDL.

“We understand Commonwealth’s Attorneys take the position the current system works well and that, since it is not broken, it does not need to be fixed. However, they espouse that position from the higher end of an unlevel playing field,” wrote VACDL president B. Leigh Drewry.

The VWAA added its support to the proposed amendment, citing the reasoning of the VIDC.

The VADA noted that criminal cases can have an impact on civil litigation, saying “discovery in such cases is essential to the fair and accurate administration of justice.”

The VTLA acknowledged concerns about witness intimidation, but said the proposed changes provide safeguards.

“It is true that witness information will be available sooner in many cases and there may be defendants who attempt to influence a witness in some way. However, open files are not the source of the problem,” wrote VTLA executive director Jack L. Harris.

Remarks from criminal defense lawyers and prosecutors predominated in the stack of rank-and-file comments received by the court.

Many defense lawyers say discovery is far more comprehensive in civil litigation than in criminal cases.

“It is really sad that we seem to value fairness at trial more when parties are fighting over money than when an individual’s life is in the balance,” wrote Raphael E. Ferris of Roanoke.

“Until the rules for discovery are more consistent with those in civil cases, criminal defendants will always be at a disadvantage,” said Fairfax County public defender Todd G. Petit.

Eric Frith, with the public defender’s office in Roanoke, said more early information will help defendants make informed decisions on plea offers. “By putting more cards on the table, and doing so earlier in the process, the amendments should result in more cases being worked out by agreement,” Frith wrote.

Danger to victims and witnesses?

Many of the comments from prosecutors concerned protection of witnesses’ personal information.

“We have a problem in Louisa County with defendants threatening witnesses and obstructing justice about the facts of the offense,” wrote county Commonwealth’s Attorney Rusty E. McGuire.

In some circumstances, the expanded rules could allow defense lawyers to receive copies of “practically the entirety of a police officer’s report,” warned Chesterfield County Commonwealth’s Attorney William W. Davenport.

“There is a clear need to protect the privacy rights of and to ensure the safety of the victim/witness that outweighs the need for the defendant to have such information without any explanation as to how it could be beneficial to him/her,” wrote J. Allan Budny, a Fredericksburg assistant commonwealth’s attorney.

A representative of a family violence program expressed concern that the changes fail to consider safety issues for victims and witnesses, especially in cases involving child and domestic victims.

Colonial Heights Commonwealth’s Attorney William B. Bray said the rules revision would cause hardship on “underfunded prosecutor’s offices and smaller offices such as mine.”

Roanoke Commonwealth’s Attorney Donald S. Caldwell urged consideration of “completely reciprocal discovery,” to allow for “better case assessment and resolution.”

Caldwell warned of “wrong lessons” that might result from more discovery mandates on law enforcement, including authorities generating fewer and fewer written reports.

Noting there were no prosecutors remaining on the task force that ultimately produced the recommended changes, Suffolk Commonwealth’s Attorney C. Phillips Ferguson called the result “the most one-sided, self-serving, biased , and unfair proposal that I have seen forwarded to the Supreme Court in my 39 years as a lawyer.”

The comments from individuals reflect some campaigning on both sides of the issue. Several duplicate letters emerged, one set in favor of enhanced discovery, others opposed.

The director of the state Department of Forensic Science urged caution in enacting expert witness rules that could increase the cost and inconvenience of state lab functions.

Law Prof. Kent Sinclair, chair of the Supreme Court’s Advisory Committee on Rules of Court, said he did not know if the criminal discovery proposal will be on the agenda for the panel when it meets in September.

The Supreme Court generally enacts rule changes only after recommendations from the Judicial Council of Virginia based on recommendations from the Rules Committee.