Acknowledging Failure at the Department of Justice
Today, the Department of Justice announced its appointment of Andrew Goldsmith as the new national coordinator for its criminal discovery initiatives. According to the press release, DOJ created the position to “improve its criminal discovery and case management policies and procedures.” His responsibilities include creating an online directory of resources on discovery issues available to all prosecutors at their desktop, producing a handbook on discovery and case management, implementing training for paralegal and law enforcement agents, among other things. A few paragraphs into the announcement comes an important, and revealing, note about a recent review of DOJ practices and policies: “That review determined that incidents of discovery failures were rare in comparison to the number of cases prosecuted. However, the Department has instituted a number of steps intended to further ensure the Department complies with its discovery obligations.”
Those oblique sentences seemingly refer to the cases against the Blackwater guards and former Alaska Senator Ted Stevens that were dismissed or dropped out due to discovery mistakes by federal prosecutors. While discovery failures might have been rare, they nevertheless packed a punch. For instance, in the corruption trial of former Senator Stevens, the judge chastised federal prosecutors for letting a witness leave town. Federal prosecutors got in trouble for submitting erroneous evidence and were reprimanded for failing to turn over key witness statements. An FBI agent complained about the prosecution team’s alleged misconduct. Attorney General Eric Holder asked the judge to drop the case after learning that prosecutors failed to turn over notes that contradicted testimony from their key witnesses. A federal judge recently dismissed charges against five Blackwater Worldwide security guards accused of killing 14 Iraqi citizens in a shooting in a ruling that sharply criticized the tactics of DOJ prosecutors in handing the case. The judge found that prosecutors and agent had improperly used statements that the guards provided to the State Department in the hours and days after the shooting.
The appointment of a National Coordinator for Criminal Discovery Initiatives sends an important message. The DOJ has seemingly acknowledged its failures, despite suggesting their rarity. It also expressed its commitment to excellence, though for some this may come a little to late. This reminds me of the important work that my former colleague and now Michigan Law professor Sonja Starr is doing regarding prosecutorial misconduct, including her superb piece Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Georgetown L.J. 1509 (2009).