Bernard Ammerman
The people’s representatives in the United States’s system of justice should be held to the standards that underscore our beliefs in fairness and equity under the law. As prosecuting attorneys, we work under a mandate that justice be carried out fairly and impartially. This mandate has an inherent two-directional compass—it includes both the accused and the accuser. Thus, as much as counsels, both defense and prosecuting, might tend to lean one way or the other, prosecutors have the higher duty of ensuring an environment of impartiality toward and for all involved. U.S. law, although an adversary system, places a high degree of value on the rights of the accused. The accused is not guilty until proven otherwise. Therefore, all evidence and information relative to a case must be disclosed to opposing parties—without prior analysis of such and without regard for how that potentially exculpatory evidence might negate or otherwise ameliorate our adversary’s guilt.
The Board of Disciplinary Appeals’ opinion in Schultz is that Rule 3.09(d) goes above and beyond Brady in that no materiality or intent is required to establish a violation of withholding evidence from opposing parties. Rule 3.09(d) requires a prosecutor in a criminal case to:
• make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and
• in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by the tribunal’s protective order.
The gist of the BODA’s opinion in the Schultz case is that a failure to disclose—for whatever reason—is a failure to comply with Rule 3.04(a); it’s also an unlawful obstruction of another party’s access to evidence under that rule. Rule 3.04(a) requires that a lawyer shall not:
• unlawfully obstruct another party’s access to evidence;
• in anticipation of a dispute unlawfully alter, destroy, or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or
• counsel or assist another person to do any such act.
All of that is good. And fair. And ethical. And in accord with our beliefs and our modus operandi. But there is a “but” here: What happens when a trusted co-counsel, investigator, or someone in the office does not live up to our ethical expectations? One cannot always impose moral rectitude on others for whom we are held responsible. The argument is that a person in charge (in this case, the lead prosecutor) should know what is going on at all times. He should be omniscient, in other words—but that is not a human trait. The limitations that make us human can carry serious consequences and equally serious ramifications for lead prosecutors because a failure—of anyone on the State’s side—to disclose potentially exculpatory information to the opposing team is a failure on the lead prosecutor’s part. It puts your bar license on the line.
Let’s examine the realities of daily routines. Not a day goes by when preparing for trial that a subtle difference does not come up from the victim’s account, especially with child sex crimes, from that which is detailed in a police report or child advocacy center’s video. What is a prosecutor to do when there is a slight nuance? Schultz argues that it seems an “unworkable burden” on a prosecutor to distinguish between what is to be divulged and what is irrelevant to a case; therefore, the burden on the individual prosecutor does seem unreasonable and beyond human capabilities.
But wait. Let’s examine Rule 3.09(d) again. As it is, this Rule actually relieves the burden that could otherwise weigh on a prosecutor’s mind. Is this or that bit of information of any consequence to the defense—should it be on the “must disclose” list? Is it black, white, or any of those hundreds of gray shades in between? Rule 3.09(d) answers all those questions. It takes out all the gray areas—on all potentially exculpatory factors—having to do with a case. In fact, it does even more: Black and white areas are also erased. The model for all prosecutors is that there should be no thought processes, no questions, no analyses, and no personal opinions on the matter. The law is simplicity itself, in its most extreme form: Disclose. End of discussion.
But is it also the end of conversation? The opinion on the Schultz case might have settled the issue of failure to disclose—it is “unlawful.” But an equally important question for prosecutors remains unresolved: How are we to deal with the “unworkable burden” of delving into the unconscious minds of team members to ensure 100-percent compliance with the law? (“Omniscience” again comes to mind.) Unfortunately that characteristic doesn’t exist among mere mortals.