Mimesis Law
15 August 2020

Prosecutors Can’t Rewrite The Law…For Now

November 17, 2016 (Fault Lines) — A few months ago, I posted about a case in St. Louis, where the prosecutor was zealously guarding hiding the privacy contact information of witnesses, in order to protect them from defendants make it harder for the defense to talk to them, thus ensuring that justice is done it’s easier to obtain a conviction. The Missouri Court of Appeals slapped them down, holding that the prosecutor, Jennifer Joyce, has to obey the law regardless of whether she agrees with it. For most people, this should be obvious, but apparently she thought that principle didn’t apply to her, because reasons.

The case turned on Missouri Rule of Criminal Procedure 25.03 which states:

(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request:

(1) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements[.]

Pretty clear, right? But the standard practice in Joyce’s office was to provide only the names of witnesses, without addresses, phone numbers, dates of birth, and the like. According to the opinion:

The Circuit Attorney has a long standing practice, dating back some ten years, of deleting this information from police reports, even deleting the last known addresses, before providing the reports to defense counsel. The Circuit Attorney established this practice based on her own conclusion that Rule 25.03 was unconstitutional in light of an amendment to the Missouri Constitution adopted in 1992. That amendment provides that crime victims have a right to “reasonable protection” from the defendant. (Emphasis added.)

Jennifer Joyce is a graduate of the St. Louis University School of Law, a fine institution of higher learning, and has been an attorney for over 20 years. Apparently she never learned that in America (of which Missouri is a part), prosecutors are not entitled to declare laws unconstitutional. She argued in the alternative that protective orders should be granted pursuant to Rule 25.11, which allows

The court may at any time, on motion and for good cause shown, order:

  1. Specified disclosures be denied, regulated, restricted, or deferred, or make such other order as it deems appropriate, provided that all material to which a party is entitled must be disclosed in time to permit counsel to make beneficial use thereof[.]

Meaning, the court can issue protective order if there’s a good reason, such as a specific threat made against a specific witness. What was her good reason?

In arguing that good cause existed for her motions, she alleged generally that victims and witnesses were subject to threats, intimidation, potential identity theft, and other cybercrimes.

However, the Circuit Attorney never adduced any specific evidence that any victim or witness in any of the cases had been subject to threats, intimidation, or any untoward consequence.

In other words, Joyce decided that she didn’t have to comply with the law because something bad might happen. It didn’t, but it could have! Imagine a similar argument from the defense:

“Judge, I want you to throw out the otherwise admissible DNA evidence because it’s possible the lab tech pulled an Annie Dookhan. I don’t actually have any evidence of that, but you never know.”

The Court of Appeals wasn’t amused, pointing out that

Indeed, other than a listing of the involved charges in the case, the identical motions are completely devoid of any facts whatsoever. The Circuit Attorney’s argument at the hearing was likewise lacking in substance.

Did Senator Sanders just go to the hospital? Because that was a sick burn.

It wasn’t a complete victory for the defense, as the Court limited the scope of disclosure to names and addresses…no phone numbers, Social Security numbers, and dates of birth. The reason was straightforward, that the rule only mentioned names and addresses, and if the Supreme Court wanted the other stuff included, they would have put it in the rule.

At least in the case of the Missouri Public Defender’s Office, name and address is sometimes more than enough. During my time with MSPD, I once asked our investigator, Pete, to find a witness, but all I had was his first name and the place where he lived…three years prior. Pete tracked him down in two days. It’s also worth noting that other prosecutors’ offices (like the one in my county) routinely provided unredacted reports, with at least phone numbers and DOBs, and we didn’t have a systemic witness tampering problem. Joyce’s intransigence has nothing to do with protecting anything, except maybe her conviction stats.

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