Rules 16 and 26.2 of the Federal Rules of Criminal Procedure, the Jencks Act (18 U.S.C. §3500), Brady v. Maryland, and Giglio v. United States impose upon all federal prosecutors an obligation to disclose exculpatory and impeachment information.
There are two primary sources that guide the 93 Assistant U.S. Attorneys in the U.S., Puerto Rico, Guam, Virgin Islands, and Mariana Islands about how these obligations must be fulfilled: Section 9-5.001 of the United States Attorneys Manual (USAM) and the Federal Criminal Discovery Blue Book (“Blue Book”).
The USAM is a public record; the Blue Book is not.
In fact, the Blue Book is such a closely guarded secret that the Justice Department (DOJ) has strenuously fought for the past several years in court to prevent criminal defense attorneys from accessing it.
In December 2012, the National Association of Criminal Defense Lawyers (NACDL) filed a Freedom of Information Act (FOIA) request seeking disclosure of the Blue Book with the DOJ. That request was denied by the agency in February 2013. The NACDL appealed the denial, and that appeal was rejected by the DOJ in June 2013.
Having exhausted administrative remedies, the NACDL in February 2014, filed a formal complaint in the United States District Court for the District of Columbia against the Executive Office of the U.S. Justice Department.
This complaint triggered a flurry of legal actions and decisions that culminated on July 19, 2016 when the D.C. Court of Appeals issued a ruling that upheld a lower court order denying the NACDL’s complaint on the legal premise that the Blue Book is privileged under the “attorney work product” rule.
Just what is the Blue Book?
In October 2008, federal prosecutors engaged in the prosecution of former Alaskan U.S. Senator Ted Stevens methodically and deliberately committed some of the worst acts of prosecutorial misconduct in U.S. Justice Department history. The massive misconduct had serious ethical and legal implications for all those involved in that political witch hunt prosecution.
The Blue Book was the DOJ’s response to the legal fiasco of the Sen. Stevens prosecution. It is a manual that guides DOJ prosecutors “in the practice of discovery in criminal prosecutions.” As the D.C. Court of Appeals put it:
“[The Blue Book] contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.”
When it created the Blue Book, the DOJ never intended for it to be seen either by criminal defense attorneys or the general public. It is a “top secret” kind of work manual designed instruct prosecutors not only how to fulfill their discovery obligations but, we suspect, to teach them how to “legally” avoid honoring those obligations as well.
In the FOIA proceedings, Susan Gerson, the Assistant Director of the FOIA/Privacy Act Staff of the Executive Office for U.S. Attorneys, outlined the following purposes of the Blue Book to justify its non-disclosure as they were outlined in the Court of Appeals decision:
For these reasons, and others, the DOJ argued in the district court and before the court of appeals that the Blue Book should enjoy non-disclosure status under the well-established attorney work product privilege. Agreeing with the DOJ, the D.C. Circuit said:
“Courts have long recognized that materials prepared by one’s attorney in anticipation of litigation are generally privileged from discovery by one’s adversary. The attorney work product privilege applies in both civil and criminal cases. The privilege aims primarily to protect ‘the integrity of the adversary trial process itself.’ It does so by ‘providing a working attorney with a ‘’zone of privacy’’ within which to think, plan, weigh facts and evidence, and candidly evaluate a client’s case, and prepare legal theories.’ Without the privilege, ‘much of what is now put down in writing would remain unwritten’ because ‘an attorney’s thoughts, heretofore inviolate, would not be his own.’ Protecting attorney work product from disclosure prevents attorneys from litigating ‘on wits borrowed from the adversary.’”
We respectfully disagree with the court of appeals.
Even after the Ted Stevens scandal, scores of DOJ prosecutors have engaged in misconduct.
According to a March 2014 reports by Project on Government Oversight (POGO), “an internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.”
POGO noted that “as a general practice, the Justice Department does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. The result: The Department, its lawyers, and the internal watchdog office itself are insulated from meaningful scrutiny and accountability.”
The D.C. Circuit’s decision will perpetuate the shroud of secrecy the DOJ has clothed itself with.
With the court of appeals’ blessing, the DOJ does not want to disclose the Blue Book not to protect prosecutors’ work product but to keep criminal defense attorneys from understanding when and how its prosecutors fail to fulfill their discovery-related obligations.
What types of misconduct did the DOJ’s own Office of Professional Responsibility (OPR) find its post-Ted Stevens investigation? They are listed below:
The OPR’s investigation revealed that prosecutorial misconduct is systemic in the DOJ, and that the wrongdoing spanned two political administrations. This leads us to believe that the Blue Book exists not to offer a professional and ethical guide for DOJ prosecutors in discovery-related issues but as a manual to teach them how to manipulate the process and not get caught, as they did in the Ted Stevens case.
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