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Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"

I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.

Codifying the Brady Standard to Help the Prosecutors Understand

Posted By Carl Gunn on Jun 26, 2012 12:57pm PDT

BLOG BULLET

Think about legislative and rule proposals as well.

NOW THE BLOG:

Oh, the wonderful Internet and thank God the days of vellum, papyrus, and stone tablets are long gone. I went out to search the Internet for additional support for the Brady standard discussed in my post last week, and it reminded me of legislative and other proposals to codify a standard like the one Judge Pregerson applied in the Sudikoff opinion that I discussed last week. So I thought I’d share some of those in this week’s post before moving on to another, related topic next week.

The bottom line is that Judge Pregerson isn’t alone in his view of the rule, or at least what the rule ought to be. There are various pending proposals out there that would codify his view in either a statute or the rules of criminal procedure. Attached here is a link to a discussion draft of a possible amendment to Rule 16 of the Federal Rules of Criminal Procedure -- along with a modified version proposed by defense attorneys -- which was being considered last year and attached here is a link to a bill that’s been introduced by Senator Murkowski of Alaska. You might not think of Senator Murkowski as the foremost advocate for criminal defendants’ rights, but I guess that can change when a fellow senator from your state (remember the prosecution of Senator Stevens) has been the victim of prosecutorial shenanigans in the area.

I’m also attaching some letters of support for the Murkowski bill from both the American Bar Association and the Constitution Project, here and here. The Constitution Project letter was written about a week before she introduced the bill, so it's not framed as a letter of support, but it supports the same concept.

In any event, for those of you who have political instincts and contacts in addition to legal ones, you might think about talking to political people in addition to lawyers and judges. Or maybe threaten our prosecutors with legislation if they persist in not understanding their obligation.

More next week.

Categories: Criminal Defense

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Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.

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