by Matt Clarke
Attorneys for the Office of the Clark County (Nevada) Public Defender say prosecutors routinely violate state and federal laws governing the sharing of information known as “discovery.” They claim the situation is so grave that they have started tracking instances of prosecutorial discovery abuse. Sometimes the information is accidentally withheld, according to public defender David Westbrook, but often evidentiary documents are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them].”
The public defenders documented at least 28 cases in which prosecutors turned over discovery, such as recordings of jail phone calls, surveillance videos, police reports, body cam recordings, witness information, DNA and other forensic test results, medical reports, and other types of evidence fewer than 30 days before trial. Sometimes they received a large document dump just before trial. In four cases, the late discovery disclosure included exculpatory evidence. Some of the cases had discovery less than a day before trial. Six had discovery being provided only after the trial had already begun.
State law requires prosecutors to turn over witness statements no less than five days in advance of the defendant’s preliminary hearing, long before a trial is set. Both sides are required to disclose summaries of the testimony expert witnesses are expected to give at least 21 days before trial. Medical reports, forensic test results, physical evidence, and previously undisclosed defendant and witness statements must be disclosed at least 30 days in advance of trial if such a disclosure is requested by the opposing side.
“The response that we’ve encountered consistently is that we need to show that there’s a pattern or more than anecdotal evidence,” said public defender Robert O’Brien. “We usually would bring up the most egregious violations we could find and, generally, our district courts have refused to sanction the district attorney for it.”
To show the ubiquitous nature of the discovery abuse, public defenders began documenting them.
“I have never had a trial when there hasn’t been some kind of discovery violation,” said Westbrook. In one particularly egregious example, prosecutor Mary Kay Holthus ruled against turning over information about a confidential informant’s tip, criticizing Westbrook for not having procured the information himself and saying, “I’m not his lackey.”
When caught withholding exculpatory evidence, prosecutors often try to blame police, as happened in a case during which Westbrook only found out about the existence of other suspects when a detective revealed their existence during trial testimony.
“When this kind of thing happens, you get a lot of finger-pointing and buck-passing,” said Westbrook. “The DA blames the detective for not telling her about the evidence or the defendant for not somehow, magically, getting the information himself. This system of plausible deniability allows both the DA and the police to duck a finding of ‘bad faith,’ which is about the only way to get a case dismissed [for discovery abuse].”
Late prosecutorial discovery disclosure is a nationwide problem that wreaks havoc on defendants’ cases, according to University of Texas School of Law criminal procedure and civil rights professor Jennifer Laurin. “We depend on the effective assistance of counsel so that a lawyer can scrutinize the other side’s evidence. Discovery in advance of trial is part of what enables that to happen,” said Laurin, explaining that disclosure just before or during trial was too late because, by then, defense strategies are set and attorneys don’t have sufficient time to review the evidence and adjust their plans. This can lead to the conviction of innocent defendants denied a viable defense by late discovery disclosures.
The turning over of all evidence required by law in a criminal case is a fundamental element of ensuring a fair trial. Prosecutors who knowingly violate this principle place winning and personal accolades above their sworn duty to ensure the fair administration of justice and doing their utmost to ensure that the correct person is punished, not simply the most convenient person.
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