Tuesday, June 22, 2010

Discovery and Despair

Hyperbole and a Half captures the way the brain feels after a long day dealing with (sometimes) steamroller of government. Using I2 the clever analyst can make a cartel out of any cell phone data. Fun(!)

In January, 2010, Attorney General Eric Holder released the Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery. Recently in the Ninth Circuit in United States v. Stever Stever sought to present a defense on the ground that the marijuana growing operation found on an isolated corner of his mother’s 400-acre property was the work of one of the Mexican drug trafficking organizations . . . that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. The Ninth Circuit considered whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever’s rights under Brady v. Maryland, . . . and Stever’s Sixth Amendment right to make a defense.” Id. at *1. The Court held that the discovery violations presented Stever from investigating, and thereby precluding a whole line of defense.
This is an issue of policy given that there is talk to amend Rule 16's Discovery Obligation. The Judicial Conference Advisory Committee on the Rules of Criminal Procedure, chaired by Judge Tallman of the Ninth Circuit, is debating a change to Rule 16, which governs discovery. Thus far DOJ as rejected the amendment. Discovery is important to a sense of fair justice. It is a good time to be arguing the government's discovery obligations aggressively and putting together defense investigation that covers the data analysis.

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