Crime

Criminally Yours: The Black Hole Of Discovery

The decision to plead guilty is often made in the dark, based on fear and a shortage of information. Why does this happen?

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You have to love being the underdog to be a criminal defense attorney. Not only is the prosecutor against you, but you’re often fighting an uphill battle against the judge and sometimes even your own client, especially if you’re court appointed.

Even the law disfavors us.

Take discovery for example. Plain and simple, at least in New York State, we have no right to discovery (i.e., the evidence against our client), or at least any form of it that gives us detailed information, until the hearings and trial start.

In civil practice there are depositions, subpoenas for records, and ample time for preparation and investigation. In criminal practice we get what’s called a Voluntary Disclosure Form (VDF), basically five sheets of papers in boilerplate format with a series of checks that tell you the merest basics, among them: whether your client make a statement to police; whether he was identified by a witness, and what property police recovered from him on his arrest. It also lists the names and shields of police officers involved in the arrest, but try to get a cop to talk to you to prep for trial — no way, no how. He’s the prosecutor’s witness, not ours.

It’s common for the prosecutor to even withhold the name of the victim. They claim they do that for safety reasons (sometimes justified, most times not), making it almost impossible for us to prepare for cross-examination in any meaningful way.

And who gets the blame? Us. Our clients get mad at us for not providing them with the grand jury minutes and the police reports until the day of trial. But guess what, that’s only when we get them, too. Prosecutors don’t even have to let us know if their star witness has left town, doesn’t really want to testify, or has died. Boy, that would be a good thing to know before advising a client to plead guilty.

I call it plea or trial by ambush. Once again, the members of the prosecution hold all the cards and hold them very close to their vest until the trial starts. That gives them a lot of power.

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Their quip to us often is, “Well, your client knows what happened. Ask him.”

This facile analysis turns the burden of proof on its head. First, it presumes guilt, rather than innocence. Next, it presumes the defendant should plead guilty without knowing the strength of the case against him. But it’s the government’s burden to prove the case, not ours to plead our client guilty.

And here’s an even trickier reality — many states don’t even require the prosecutor to provide exculpatory information during the plea bargaining process (i.e., pre-trial).

Information that suggests our client is actually innocent, Brady material, can be withheld until trial begins. This material is crucial for defense counsel and defendants to weigh the pros and cons of taking a plea or going to trial. Brady material includes facts such as a witness picking out someone else from a lineup, DNA on the weapon matching a different person, or a statement by another individual that he committed the crime.

However, courts have disagreed on whether this information must be provided to defense counsel during the plea-bargaining phase.

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Last week, a decision came down from — of all places — the West Virginia Supreme Court, ruling that a defendant could withdraw his plea to robbery and rape because prosecutors withheld exculpatory DNA evidence. The court ruled it was a violation of the defendant’s due process rights to withhold such evidence during the course of plea bargaining.

It makes sense. Sometimes people plead guilty to a crime not because they committed it, but because they’re afraid of the stiffer penalty they’ll get if they lose trial. It’s axiomatic that when a person goes to trial and loses he gets more time in jail than if he just pleaded guilty. In federal court, his sentencing guideline numbers go up for failing to accept responsibility. In state court, the higher post-trial numbers just keep the well-greased plea machine working better.

But when the defendant doesn’t know how strong or weak the case against him is, this very crucial decision — to plead guilty –- one that will affect the rest of his life, is often made in the dark, based on fear and a shortage of information.

Yes, sometimes people who are guilty go to trial, but that’s their right — to make the government prove its case. It’s more important that the information known to the prosecution be shared with the defense so every defendant can make that choice voluntarily in a truly informed way and not just out of fear.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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