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Looking at discovery sanctions

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Sometimes, it's tough to figure out how a court's going to rule after oral argument.  Sometimes not.  I had an argument down in the 5th District a few months back, where one of the judges openly told the defense counsel that he thought her argument was frivolous, and the other two judges said nothing to indicate their disagreement with that assessment.  Not hard to figure out how that case is going to go.

After watching the Supreme Court argument in State v. Darmond last week, it's pretty clear that the court believes the trial judge went too far in dismissing the indictment with prejudice because of the State's discovery violation.  Beyond that, though, it's anybody's guess as to what's going to happen.

Just the facts, ma'am.  I explained the facts in my review of the 8th District's decision upholding the dismissal.  The short version is that Darmond was charged with drug trafficking, based on the cops' indictment of two FedEx packages containing a large quantity of Cheech and Chong's preferred herb.  Five other packages had been intercepted at the same time, with similar packaging and the same handwriting on the address, coming from the same area.  The first time that the prosecutor or defense counsel found out about that was during the testimony at trial by the chief detective.  The judge declared a mistrial and dismissed the case with prejudice.  The 8th District affirmed.

The issues.  Back in 1987, in Lakewood v. Papadelis, the Supreme Court held that the trial judge erroneously excluded defense witnesses from testifying because the defense hadn't given the prosecutor a witness list, as the discovery rules required.  The court held that when reviewing a discovery violation, the judge "must impose the least severe sanction that is consistent with the purpose of the rules of discovery."  Does that apply to the prosecution, too, and if it did, was dismissal of the indictment with prejudice the appropriate sanction?

The problem for the prosecution.  The State's entire argument hinged on the notion that the judge should've imposed a lesser sanction, such as a continuance so that the defense (and the prosecution, for that matter) could review the material.  While that might have been a problem in a jury trial, this was a bench trial.

But if you're going to argue that the judge should've done something else, it helps if you've told the judge what that "something else" might be.  As Chief Justice O'Connor, Justice Pfeifer, and new Justice O'Neill pointed out, the prosecutor here never asked for a continuance or any lesser sanction.  The judge's decision is reviewed for abuse of discretion, and it's hard to argue that he acted unreasonably when you didn't propose an alternative.

The problems for the defense.  Facts are so important in an appeal, and the defense had some bad ones.  First, everybody agreed that this was the result of sloth, not malice, on the State's part.  Nobody was claiming that the prosecutor intentionally hid anything.  Three years after Papadelis, the Supreme Court held in State v. Parker that a non-intentional violation of the discovery rules by the State didn't warrant exclusion of the evidence.  There were some favorable facts in Darmond - the case had been around for a while, and the State had in fact dismissed it once for "more investigation" - but that still goes further in showing neglect than intent.  Darmond's attorney made a valiant effort to bring the new discovery rules into play, especially CrimR 16(A)'s requirement that both parties exercise "due diligence" in discovery, and spin that into a willfulness argument.  But just like the prosecutor hadn't offered any alternatives to the judge, the defense had never argued in the courts below that the prosecution had acted willfully, and O'Connor's pointed questioning made it clear that the court wasn't going to accept that argument now.

The other problem was that the evidence was only potentially exculpatory:  nobody knew what the police reports on the other five cases contained.  All of the justices agreed that if there was a real Brady violation -- that clearly exculpatory evidence hadn't been turned over -- it might be a different story.  But Parker had also held that a sanction shouldn't be imposed unless the defendant could show that the undisclosed information was prejudicial to his ability to mount a defense, and O'Neill indicated he had a clear problem with dismissal when the defense was missing on two of the three requirements.

Where do the new discovery rules fit into this?  New Crim.R 16(A), adopted as part of the "open discovery" changes in 2010, specifies that the duties "apply to the defense and the prosecution equally, and are intended to be reciprocal."  The prosecutor argued this meant the two parties had the same obligations, and the failure to meet those obligations had to be handled equally.  This argument isn't without problems.  As Justice Lanzinger pointed out, while the prosecution has the duty to turn over exculpatory evidence, the defense has no duty to turn over inculpatory evidence, and then there's the difference in the burden of proof, and the fact that a defendant has a constitutional right to present a defense, and the State has no corresponding constitutional right to present its case.  But several justices, including Justice O'Donnell, at least countenanced this possibility.

So what's going to happen?  This is one of those cases which could mean a lot or a little, depending upon how broadly the court wants its opinion to be.  If it treats the case narrowly, it will find that the judge didn't make a determination of whether the evidence was willfully withheld, and whether it was exculpatory, and remand it to him for that purpose.  (Oddly enough, that's all the State is asking for.)  It could rule the way the State might have argued:  that absent a finding of willfulness, dismissal with prejudice of an indictment is not permissible, and send it back for retrial.

Or it could write broadly, and hold that the ultimate sanction of dismissal or exclusion is prohibited unless there was no other remedy available, or even say some bad stuff about the how Rule 16 sets up an equality of obligations, despite the distinctions that Lanzinger pointed out. 

A decision along those lines is what worries me.  To a certain extent, it'll help the defense:  if the State can get away with being negligent, you better believe that the defense will, too.  But if you're going to say that the lesser sanction should be imposed, well, there's always a lesser sanction.  If you don't penalize lack of diligence, you're not going to get diligence. 

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