Mimesis Law
23 June 2017

Appellate Court OKs Decision To Keep The Feds’ “Blue Book” Secret

July 21, 2016 (Fault Lines) — The D.C. Court of Appeals declared that the federal government will not have to disclose the contents of a guide that determines when its prosecutors should disclose evidence to the accused. The Department of Justice’s “Blue Book” stays in-house, at least for the time being.  As reported by Josh Gerstein from Under the Radar:

A federal appeals court has declared that the Justice Department need not make public a guide to when prosecutors should disclose evidence to defendants in criminal cases, but two of the three judges deciding the case took the unusual step of indicating that they believe the manual should be public.

The U.S. Court of Appeals for the D.C. Circuit ruled unanimously Tuesday that the manual — created in the wake of the Justice Department acknowledging failures in the prosecution of the late Sen. Ted Stevens (R-Alaska) — is exempt from disclosure under the Freedom of Information Act because the guide qualifies as privileged attorney-work product.

All Reasonable minds can agree that the disastrous prosecution of the late Senator Stevens was replete with prosecutorial misconduct that involved the deliberate concealment of exculpatory evidence from the defense, which culminated when the presiding federal judge went the extra mile in excoriating Stevens’ prosecutors the day the case was finally dismissed, saying:

In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case.

U.S. District Judge Emmet G. Sullivan even appointed an independent counsel to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section.

In the Stevens case, the government withheld exculpatory information that it was obligated to disclose to the defense as per the U.S. Supreme Court decision of Brady v. Maryland and its progeny.  The government’s shenanigans came to light because the defense attorneys caught wind of a whistleblower complaint filed by an FBI agent involved in the Stevens case, who alleged to have “witnessed or learned of numerous violations of policy, rules and procedures as well as criminal violations” during the investigation of Stevens.

Following the Stevens fiasco, and after it admitted some shortcomings during the case, the Department of Justice told the world that it had drafted an internal document called the “Federal Criminal Discovery Blue Book,” which the Department uses to guide assistant U.S. Attorneys in the practice of discovery in criminal prosecutions.  Then the National Association of Criminal Defense Lawyers, or NACDL, took a respite from tilting at windmills and asked the DOJ for a copy of the guide pursuant to the Freedom of Information Act, or FOIA.

After the NACDL was told to take a hike, it filed a complaint in federal court to compel the disclosure.  In upholding the court’s granting of summary judgment in favor of the DOJ, the U.S. Court of Appeals for the District of Columbia held that the Blue Book fell within attorney work-privilege and was thus exempt from disclosure under FOIA.  From the Court’s Decision:

Taking into account the nature, content, and function of the Blue Book as described in DOJ’s affidavits, we believe it “can fairly be said to have been prepared . . . because of the prospect of litigation.” Deloitte, 610 F.3d at 137 (quoting Sealed Case, 146 F.3d at 884). Our in camera review of the Blue Book confirms that the affidavits accurately describe the Book and its contents. The Book therefore qualifies for the work-product privilege.

The Book does not merely pertain to the subject of litigation in the abstract. Instead it addresses how attorneys on one side of an adversarial dispute—federal prosecutors— should conduct litigation. It describes how to respond to the other side’s arguments, which cases to cite, and what material to turn over and when to do so, among numerous other practical and strategic considerations. The Blue Book, for instance, “describes the types of claims defense counsel have raised and could raise regarding different discovery issues, or the tactics they could employ in litigation . . . and the arguments prosecutors can make to respond to these claims.” Gerson Decl. ¶ 21 (J.A. 85).

The NACDL argued that the Blue Book fell outside the work-product privilege because it had a non-adversarial function, to wit: the training and education of the DOJ’s vaunted prosecutors.  It also argued that its disclosure was fair game because it was not drafted with a specific litigation in mind, but ultimately the Court sided with the federales, who fought tooth and nail to keep the book under wraps.

It is always the government’s go-to approach, the “trust us” one, that makes us cynics get all cynical and ask, “What have you got to hide?” It speaks volumes when the concurring circuit judges noted that they didn’t believe this was the correct outcome, but that they were bound to uphold the district court’s decision because of the relevant precedent.  It’s not part of the Court’s holding, but it bears repeating, folks:

It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice.

For now, we won’t know what’s inside the Blue Book.  We won’t know whether it contains a general guidance on how to do “justice” (whatever that means), or whether it contains a list of some super-duper prosecutorial stratagems that would outwit even Clarence Darrow on his best day.  What we do know is that the government chose to fight to keep the Blue Book secret, even when its drafting was prompted by the exposure of one of the worst prosecutorial scandals in recent years.

9 Comments on this post.

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  • Raccoon Strait
    21 July 2016 at 10:19 am - Reply

    While I find the attitude of both the DOJ and the Court disgusting (did they determine if the advise given by the book violated the rules to reveal exculpatory evidence? and if not, why not?), it seems to me that the entire contents of the book will be revealed by the behavior of the DOJ over time, revealing that attorney work product. So the DOJ won something that might very well be illegal (who’s gonna prosecute them?) but something that will reveal itself through use and careful compilation of those behaviors.

    Secret laws, secret courts, secret rules. It is supposed to be a government of the people, by the people and if the people know, nothing is secret.

    • Mario Machado
      21 July 2016 at 11:06 am - Reply

      Court did not determine whether the book’s contents or advice violated Brady. The question before it was whether the Blue Book was attorney work-product and thus exempt from disclosure. Court said yes, so book stays secret.

  • Mark W. Bennett
    21 July 2016 at 1:56 pm - Reply

    Ahhh, also establishes that the 63 law professors who filed an amicus brief are not always right. They may have one Bluebook memorized but will need to guess at this one.

    • shg
      21 July 2016 at 2:53 pm - Reply

      Wait. Is it possible the court declined to disclose the right Blue Book? I, for one, could live without ever seeing the other Blue Book.

      • Mario Machado
        21 July 2016 at 3:32 pm - Reply

        Maybe the court went temporarily color blind and meant to keep secret the other Blue Book’s insufferable cousin from law school, the Red Book.

      • Greg Prickett
        21 July 2016 at 3:56 pm - Reply
        • Mario Machado
          21 July 2016 at 4:22 pm - Reply

          Well done, Greg. I’m no Blue Book votary, but weren’t you supposed to put within parentheses the date you last visited the SJ link?

          Although I think people should be required to indicate the first time they visited the link instead. That would make the requirement extra pointless and burdensome. Classic Blue Book.

          • Greg Prickett
            21 July 2016 at 7:11 pm -

            Not according to rule 18.1 (p. 164, 19th ed.). You do put a last visited on an online-only source, but not on dynamic webpages, such as blogs (or in this case, blawgs).

  • Appeals Court Says DOJ Can Keep Its Evidence-Production Guidelines To Itself | Curtis Ryals Reports
    22 July 2016 at 10:54 pm - Reply

    […] The DC Appeals Court has allowed the DOJ to retain another aspect of its “trial by ambush” strategy, as reported by Mario Machado of Fault Lines. […]