A new look at discovery sanctions
The case against Demetrius Darmond and Iris Oliver seemed pretty solid. The cops had interdicted a Fed Ex shipment at the local facility, a box addressed to "Tasha Mack" at the address Darmond and Oliver lived at on Huntmere Rd.; after obtaining a search warrant, the police found a package wrapped in happy birthday paper and an envelope containing marijuana. Four days later, another interdiction led to the discovery of a similar box, also containing marijuana, this one addressed to "Sonya Byrd" at the house on Huntmere. The packages were delivered, Darmond and Oliver accepted delivery, and were subsequently charged with drug trafficking.
During trial, it came out that there weren't just two packages. Five others had been interdicted at the same time, all of them very similar to the ones Darmond and Oliver were being tried for -- all were the same box size, came from the same area, and contained very similar packaging, and the same handwriting. The judge declared a mistrial and dismissed the case with prejudice, and last week, in State v. Darmond, the 8th District affirmed, with a decision that could have a major impact on discovery violations in the future cases.
The trial judge's reasoning for the dismissal was simple. The packages were obviously related. When the detective who investigated the case testified at trial, though, she didn't have any information concerning the other five packages. The defense claimed "surprise," and the judge agreed, finding that if all the information were known, it was possible that someone else had hatched the scheme for the delivery of the packages, without Darmond's and Oliver's knowledge. That's not far-fetched; there have been cases where the plan is to send the packages to various addresses, and then have a confederate pick up the package before the homeowner does. (That was exactly the scheme that briefly ensnared the mayor of a small Maryland town in an ugly SWAT raid a couple years back, as I recounted here.) Although the information wasn't conclusively exculpatory -- it might not have been exculpatory at all -- the failure to disclose it clearly precluded the defense from pursuing that theory.
Although the State argued that the grant of a mistrial was error, its fire was really directed at the dismissal with prejudice, and that's what the appellate panel concentrated on: was the ultimate sanction appropriate? The State relied heavily on Lakewood v. Papadelis, the 1987 Ohio Supreme Court decision which had held that, in deciding the sanction for a discovery violation, a judge "must impose the least severe sanction that is consistent with the purpose of the rules of discovery." Here, the State argued, a lesser sanction than dismissal with prejudice was appropriate, especially given that the violation was inadvertent: the prosecutor was just as surprised by the disclosure during trial as the defense.
A lot of people, though, read Papedelis as always requiring the least severe sanction, and that's not what it holds: the sanction must be that which is "consistent with the purpose of the rules of discovery." Of significance here is that the purpose of the rules of discovery has changed since Papadelis was decided. Last year, we adopted open discovery, and the very first subsection of the new rule contains a statement of purpose:
to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.
To be sure, there's a lot of fluff language in that, but it's still a far cry from the discovery rules when Papadelis came down, which generally promoted trial by ambush. The court in Darmond specifically cites the "rights of the defendant" language in the new rule, and that's not something that it could have done two years ago.
Even without that, though, it's a stretch to read Papadelis as always mandating the least severe sanction; as the court notes, the result of such an interpretation would be that the most severe sanction could never be imposed, because there would always be a lesser one available. Most interesting here is that the court distinguishes Papadelis on the basis that it involved sanctions against the defense: there, it was defense witnesses who were precluded from testifying because their names weren't provided to the prosecution. This implicates a defendant's 6th Amendment right to present a defense, a claim that isn't available to the prosecution; thus, "the holding in Lakewood is not directly applicable in cases where sanctions are imposed upon the prosecution." Finally, the fact that the prosecutor wasn't aware of the violation is of no consequence, the court decides; "when potentially exculpatory evidence is at issue, the prosecutor may not hide behind the shield of innocence, claiming that the police failed to advise him of such evidence."
But this is where I start to have problems with the court's opinion. The above language is a correct statement of the law, but it applies to the question of the State's obligation to disclose exculpatory evidence, and the courts have consistently held that the prosecution is implied to have knowledge of any information known by the police. It could hardly be otherwise; a contrary rule would have the effect of creating a "don't ask, don't tell" policy for prosecutors and police, with the result of allowing otherwise innocent people to be convicted simply because prosecutors didn't ask about exculpatory evidence and police officers didn't volunteer it.
What we're talking about here, though, is the appropriate sanction for failing t0 disclose what might not have even been exculpatory evidence. The judge was certainly within his rights to declare a mistrial. This wasn't a problem that could be solved simply by granting a short continuance so that the defense could investigate the new information. Here, the "new information" wasn't immediately available; even the detective said she had no idea what had happened with cases pertaining to the other five packages, or even if there were any cases pertaining to them. Conducting a full-scale investigation in the middle of trial was a non-starter. (Or maybe not; this was a bench trial, and it's certainly possible that the judge could've recessed it for a few weeks to allow everybody to find out what had happened in the other cases, an option that certainly wouldn't have been available in a jury trial.)
But did he have to dismiss the indictment with prejudice? The appellate panel relies heavily upon its decision last year in State v. Jones (which I discussed here), upholding a judge's ruling excluding the State from presenting evidence at trial because the State had failed to disclose it. There, though, the argument could be made that the judge simply exercised his discretion in penalizing the State for its sloth in failing to make disclosure of evidence that had been repeatedly sought. Here, given everyone's agreement that the discovery violation had been inadvertent, it's not as clear that the ultimate sanction was warranted; the problem could have been remedied simply by allowing the parties to investigate what happened with the other packages and determine how it impacted the case, if at all.
This isn't to say that Darmond was wrongly decided; after all, the standard of review is abuse of discretion, and I'm not about to get upset with a pro-defense ruling, which doesn't come close to balancing out all the times defendants have been on the losing end of that rubric. The more important lesson of Darmond isn't its conclusion on the ultimate outcome, but its clear holding that, first, the lesser sanction is not always the inevitable one under Papadelis, and second, that the more extreme sanctions are generally going to be reserved for the prosecution.