Despite the Department of Justice’s new ‘open discovery rules’ and ‘ethics re Brady seminars’ many federal prosecutors continue to give inadequate discovery in violation of the prevailing Brady rules. In an attempt to address the ‘epidemic of Brady violations’ a new bill proposed in Congress by the Center for Prosecutorial Integrity would add muscle to the Brady rules by “…requiring prosecutors to implement an Open-File policy” for the following evidence:

In the future Perry Mason will be given timely discovery of the federal prosecutor's entire file.
Prosecutor, give Mason the damn discovery!

1. All witness statements would be subject to discovery.
2. All forensic test results would be made available to the defense.
3. All other evidence gathered by the prosecution that exists within the case file of the prosecutor.

It’s clear that Brady violations are the leading type of prosecutorial misconduct perpetrated by the Government while prosecuting federal criminal cases.

Clearly prosecutors have an obligation to do their best to seek justice rather than merely to seek convictions yet too often prosecutors have tunnel vision that rejects evidence of innocence. Yet too often prosecutors view any evidence inconsistent with guilt as unreliable. But this is not a game. This is the lives, reputations and future of those who face the entire power of the federal government. Shouldn’t they have access to all of the evidence, not just the evidence which prosecutors say is Brady material? As long as prosecutors decide which evidence is Brady material, there’ll be incentive for prosecutors to obscure the actual value of evidence for the defense.  

For fair and just outcomes in federal criminal cases in the Middle District of Florida in Tampa and thru out the United States it’s essential that all evidence must be given to defense lawyers. Why would prosecutors want anything less if they are interested in providing justice instead of mere convictions? 

The only way to insure that all evidence is made available to the defense is to have a complete Open-file system as the proposed bill would mandate. Then everything within the prosecutor’s possession goes straight to the defense. Then let an American jury find a just verdict having seen all the evidence the lawyers provide. 


Under American law prosecutors have a unique responsibility to not only enforce the law but to ensure that justice is done. Yet time after time even when confronted with exonerating DNA evidence overzealous  prosecutors fight post conviction relief. 

In a book by two psychologists called Mistakes Were Made (but not by me!): why we justify foolish beliefs, bad decisions and hurtful acts, the authors detail how and why prosecutors insist on guilt even when they find overwhelming evidence of innocence. Deceptive blinders, tunnel vision and self justification create a situation where a prosecutor believing himself to be good couldn’t possibly be the kind of person who sends the wrong man to prison and ignores all evidence that contradicts that assessment. 

Law professors also delved into the problem in an essay called The Multiple Dimensions of Tunnel Vision in Criminal Cases noting that over 170 people convicted of heinous crimes have been proven innocent by DNA evidence since 1990, but that hundreds more have been exonerated over that time period with other evidence establishing that the criminal justice system fails to accurately determine guilt. Even in preliminary stages of criminal cases rather than merely accumulating only the evidence required to convict, prosecutors should also be looking at contradictory evidence of innocence. 

The American Bar Association sets forth the obligations for any prosecutor who learns of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.” The prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

The requirements for prosecutors are clear. Seek justice promptly especially if the initial conviction was in error. The solution to the psychological problem of prosecutor’s tunnel vision and of not wanting to admit mistakes is to punish the overzealous prosecutors. Those prosecutors who fail in their obligations to seek justice promptly should not be fired, but should also be stripped of their law licenses.

Too often prosecutors acting in bad faith betray the criminal justice system by misusing their authority by bullying innocent defendants into changing pleas with threats and additional criminal charges or by ignoring important evidence of innocence for those already falsely convicted. 


This blog recently noted that the Florida Bar is set to release an ethics opinion that will re-define some appeal waiver provisions in plea agreements as unethical, something every Defendant and most Criminal Defense Lawyers in Clearwater should applaud. Now a Federal Judge has refused to accept a plea waiver that limits a Defendant’s right to appeal unless the specific facts of a case warrant a waiver provision being included.
Here are excerpts from the Judge’s opinion:

Marat needed a fair plea bargain with a St. Petersburg Criminal Defense Lawyer in Largo, Clearwater and Tampa Bay Florida
Fair  Plea Bargains Not a Bath

The pervasive waiver of individual rights has fundamentally altered the function of the courts. The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins. 

A defendant’s “guilt” is, more often than not, preordained by the grand jury’s indictment. To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence.
A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution. Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny. 

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment…
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

As much as anything it’s clear that the Judge is discouraged by the disproportionate power of prosecutors in a system that has become unhinged, where the a defendant’s guilt is “preordained by the grand jury’s indictment,” and where  “…the push is to relegate us to approving or disapproving proposed plead bargains….” Florida Judges should take this Federal Judge’s opinion to heart by taking power into their own hands away from overzealous prosecutors and shaking the system by delivering fair and just sentences in every case before them. At least one Clearwater Criminal Defense Attorney thinks it’s Judges not prosecutors who should be sentencing defendants.