Between pondering how the courthouse bathrooms were trashed within 10 minutes of the place opening, and hoping that the cooler temps mean we’ll see less than 80 people shot in the city this weekend, I managed to come across a great post on Simple Justice. The post was Mr. Greefield’s ruminations on the pervasive practice of prosecutors disclosing evidence on the eve of trial. By “eve of trial” I mean years after they were ordered to disclose it.
If you’re unfamiliar, this happens all the time. It happens with such frequency that it’s not even surprising… to the judges. By-and-large, judges may act frustrated with the practice, but nothing ever really happens about it. Greenfield’s post, titled “When the Judge Says ‘Meh'” sums it up better than I ever could:
This would be an excellent place to point out the irony that the prosecution puts a person on trial for violating the law, while it simultaneously violates the law, but that only plays to the naïve. Reality is that we, the players in the system, both know this and live with this all the time. We have for as long as I’ve practiced law.
The prosecution holds a special place in the system, a combination of low expectations of competence and efficacy, and facile excuses for its neglect and failures. They are the systems saviors, and while any defendant or defense lawyer would be led out of the courtroom in cuffs if we did a fraction of what the prosecution does regularly, they get a free pass.
You can spend years getting ready for a trial, develop a great theory, work towards gathering and presenting evidence and at the last second a prosecutor turns over something new (to you, of course, not them) that you’re neither expecting nor ready for.
To quote Mr. Greenfield, the judge says “Meh.” It never seems to matter.
In the past year, I’ve twice had cases set for trial and, within days of the trial date the prosecutor turned over police reports. Obviously that’s not new.
What is new is that in both of those cases the police reports had not even been written until a year after the offense. In one of the cases, the prosecutor talked to the cop and told him to write a report. Of course, the report was directed at defeating the motion to suppress arrest that was headed for an evidentiary hearing. Nothing shady about that, right?
In the other case, the prosecutor didn’t even know the cops had info they “hadn’t gotten around” to writing up in a report.
So, you’re about to go to trial, the prosecutor was ordered to get you any and all evidence he intends to use at trial over a year ago, all the decisions you and your client have made to this point are based on the evidence that you had been given, and now you are getting police reports that were written only because your client is contesting the charges against him. What happens now?
You’re outraged. You’re shocked. You’re asking for the “new” evidence to get barred. You’re asking for a continuance.
The judge, though? What’s the judge say? Mr. Greenfield nailed it.
Just how the system is supposed to work. If it isn’t, then why does it?