Holding prosecutors to notice and discovery requirements should always be a Defender’s top priority

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It seems obvious that prosecutors, who are held to the highest standards of behavior by the State Bar, should be held to their word, and required to fulfill their promises to a Defendant and his or her lawyer.  As we’ve learned, this doesn’t always happen, and therefore an aggressive, proactive approach to discovery and notice requirements should be relentlessly pursued from day number one, in every case.

This issue is forefront on my mind after my latest jury trial, where my client was charged with one count of felony grand theft, and three counts of insurance fraud.  Additionally, my client had suffered two prior convictions that qualify as “serious or violent crimes” under California’s Three-Strikes sentencing scheme.

This particular case involved over 3000 pages of documents, interview transcripts, and reports from the Department of Insurance “investigators.”  About two months prior to beginning trial, all parties were aware we were not going to settle, and that the matter would proceed to trial.  In preparation, of course, we repeatedly combed through each and every document in the file, and extracted over 100 pieces of exculpatory information from the various interviews, insurance paperwork, and reports.

The prosecutor continued to maintain that he would call all 20 of his witnesses, many of whom were out-of-state, during every pretrial discussion.  However, despite my calling him every single day for 10 days prior to the commencement of jury selection, he failed to provide a witness list until the morning of trial, when he handed me a handwritten witness list on a piece of notebook paper.  This witness list contained 19 of the 20 potential witnesses.

As to each witness, we had prepared exhibits — the critical tidbits of exculpatory data — and were prepared to proceed with our defense.    Every day I complained to the Judge that I was given no notice as to what witness would appear on any given day, despite essentially hounding the prosecutor regarding his order of presenting evidence (I even called him on his cell at 7am during various points in the trial, with no shame whatsoever).  The judge told me, at one point, “You will know whose next when the witness is on the stand, right?”

After calling 5 of his witnesses, the prosecutor rested his case.  Meanwhile, all of his other 14 witnesses, whom we needed to establish helpful facts for the defense, were out-of-state, and beyond the subpoena power of my office.  The Judge, who’s only interest was in moving the case along at the highest rate of speed imaginable, told me that “the prosecutor is under no obligation to call all of his witnesses.”  There was no way to introduce our helpful defense facts. We had no way to get these witnesses into court.  There was nothing we could do. We were stuck with the prosecutor’s half-baked, yet highly damaging, case.

This is what we call “trial by ambush,” and it is horrific and terribly unfair.  These witnesses were under subpoena by the State, yet the Judge refused to enforce the subpoenas for the defense, despite having the power to do so; the Judge’s only interest was getting the trial over with as quickly as possible.

We were denied a mistrial, my client was convicted of two of the four counts, and the prosecutor suffered no consequence for his tactics.

The point of this story is that it is of incredible importance that one’s lawyer be extremely aggressive about ensuring that the prosecutor adhere to his or her obligations to provide all discovery materials, as well as a witness list, within 30 days of filing a case against someone.  This is the new rule of my practice, even if the Penal Code is not quite so stringent.  Formal requests for witness lists and materials should be made at the soonest available date after filing the required “informal notice.”  Never, ever rely on prosecutors to do what they say will do (which is not to say that there aren’t ethical prosecutors out there). There are almost always golden nuggets of information in the reports, notes, logs, recordings, photos and files of prosecution witnesses –even on the simplest misdemeanor; they can be used for disposition purposes as well as trial, of course.

The good news is that, even after this cluster f**k of a trial, my client will likely receive less time than was being offered to him in a plea bargain.

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