Full disclosure: as criminal defense lawyers, we would certainly appreciate getting our hands on the so-called "Blue Book"; a practice manual rumored to circulate among federal prosecutors. One of the primary topics allegedly covered in the manual is a prosecutor's duty to disclose exculpatory evidence.

Our criminal justice system is designed to prevent, to the largest degree possible, the possibility that an accused person is convicted of a crime they did not commit. One of the tenets that furthers this principle is that prosecutors have a solemn duty to disclose exculpatory evidence to the defense lawyer representing the accused.

A few years ago, as this Blogger was heading to trial with a client accused of a sexual assault, the assistant prosecutor turned over reports from the alleged victim's high school that she had, on at least two other occasions, made similar allegations involving fellow students that were proven false. Here's the catch: the assistant prosecutor was leaving her job to practice criminal defense and did not send me the evidence until a week before she left her job.

We were acquitted in that case but I've often wondered whether I would have received the evidence if the assistant prosecutor did not leave her post a month prior to the trial. Although our use of the evidence was limited by the trial court judge, it still had a favorable impact on the development of our defense.

In an interesting recent case, the National Association of Criminal Defense Lawyers sued the Justice Department using the Freedom of Information Act to obtain a copy of the federal criminal discovery blue book. The genesis of the case arose from the reversed conviction of former U.S. Senator from Alaska Ted Stevens, where prosecutors elected not to turn over materials necessary for his defense.

According to the D.C. Circuit Court of Appeals, the book contains, "information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants." The USDOJ refused to disclose the book, asserting it was exempt from FOIA as attorney-client work-product; both the district court and the Ninth Circuit agreed.

So the blue book will not see the light of day unless an Assistant United States Attorney leaks one to the press or to the criminal defense bar. Not a likely scenario.

Nevertheless, we can presume the blue book deals with exculpatory evidence and how to handle it from a prosecutorial point-of-view. As criminal defense lawyers, we would like to believe that such evidence is routinely disclosed so that innocent folks are not convicted and the path toward the truth is respected in each case.

The cynical among us say that's way too much to ask.

Post #551

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Disgraced Former Judge
& Prosecutor Ken Anderson

We saw this in the 313 a few years back in the Judge Waterstone case; a prosecutor getting jail time for failing to disclose exculpatory evidence that could set an innocent accused individual free.  This post profiles a case, the worst we've ever seen here at the Law Blogger, that comes from Texas.

Here in Michigan, as in Texas and all other states, prosecuting attorneys have a duty to disclose evidence that is exculpatory -that is, favorable- to the accused.  Failure to disclose exculpatory evidence subjects the prosecutor to contempt of court for which a violator can be jailed.

Michael Morton was accused, tried and jury-convicted of killing his wife Christine back in 1987.  Ken Anderson was the prosecutor assigned to the case.  After convicting Morton, Anderson rode a "tough-on-crime" wave onto the county circuit court bench where he has been serving as a judge until resigning in disgrace just last September.

The source of his disgrace was that justice was finally served-up in Morton's re-opened murder case.  DNA blood evidence from another individual proved Morton did not murder his wife; the blood was from a local drifter who was later convicted of murdering another woman in Texas two years after Christine Morton's death.

In the process of re-opening Morton's case, it was learned that Anderson possessed two pieces of critical exculpatory evidence: Morton's 3-year old son saw the murderer and told his grandparents that it was not his dad but rather, a "monster"; neighbors' statements described seeing a drifter near the Morton residence in the days leading up to Christine's murder.

Unfortunately for Morton, he did a full quarter in the joint before being released in 2011.  The drifter was eventually convicted of Christine Morton's murder and now sits on Texas' Death Row awaiting execution.

As part of a global agreement settling all matters against him, the disgraced judge and former prosecutor was disbarred as a lawyer, and will do [only] 10-days in the county jail for contempt of court; he will not have a criminal conviction on his record.

The civil lawsuit against Anderson brought by the State Bar of Texas will be dismissed.  As part of the resolution, Anderson will not be charged with the more serious criminal charges of tampering with evidence [carrying a 10-year maximum prison term] due to statute of limitations constraints in bringing such a case.

If you were to ask us here at the Law Blogger, as between these two men, we believe Anderson got a far better deal.  He should be tasting prison food for at least a nickel; he got lucky and he knows it.

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