You're quite right. There is widespread recognition among Colorado attorneys that discovery in criminal cases has been a serious problem.
I mentioned before that Colorado is moving to address the problem through proposed changes in the Code of Professional Responsibility. If charges are re-filed, the prosecutors will have a very specific ethical standard. This process is not without controversy, however. Here's an article on the subject:
Justices uneasy over disclosure deal between Colorado prosecutors, defense attorneys
By MICHAEL KARLIK
[email protected]
Colorado Politics, Feb 10, 2022 Updated Feb 17, 2022
SUPREME-COURT-10262021-KS-132
A group of prosecutors and defense attorneys recently reached an accord over the responsibility of district attorneys to provide timely information favorable to criminal defendants or face professional sanctions.
But members of the Colorado Supreme Court, at a hearing this week on the proposed rule change, expressed doubts about the new standard for holding prosecutors accountable for disclosing information. Some justices also reacted to the threat of possible legislation targeting prosecutors' conduct if the court did not act first.
"I am really troubled that this court is being asked to do something that is significantly different than what any other jurisdiction does because of a deal that we aren't party to and, somehow, that if we don't do this, worse things are gonna happen," said Justice Melissa Hart. "I'm not loving this feeling."
Under U.S. Supreme Court precedent in the 1963 decision of
Brady v. Maryland, it is a violation of a defendant's constitutional rights for the government to withhold information that is material to determining guilt or punishment. In the eyes of defense attorneys, some prosecutors are still derelict in their duty when it comes to the discovery of evidence favorable to the criminally accused.
"A lot of the time, it's hard to tell the difference between when a prosecutor is actually telling me in good faith, 'Hey, I can't find this,' or when they have been sitting on their hands," Deputy State Public Defender Ben Longnecker told the justices. "A prosecutor has so much power to change a person's life for the worst."
Under the proposed change to Colorado Rule of Professional Conduct 3.8(d), prosecutors in criminal cases would have an obligation to disclose in a timely manner any information that they know, or should know, would affect a defendant's critical decisions in a case. In particular, district attorneys may not postpone the disclosure of exculpatory information until they can get the defendant to negotiate a guilty plea.
Lucienne Ohanian, a member of the public defender's office who served on the subcommittee that drafted the proposal, explained last year to the Supreme Court's committee on the rules of professional conduct that some prosecutors will indicate they have favorable information to the defense. However, they will offer a plea deal only if the defendant agrees that the prosecution does not have to disclose that information.
Ohanian described to the justices the significant hurdle in initiating misconduct proceedings against prosecutors who fail to disclose relevant information.
"What happens in courthouses when there is the occasional bad-acting prosecutor is they have the power to dismiss the case before they ever have to see a mad trial judge about what happened," she said.
Finally, prosecutors would also be charged under the revisions with making "diligent efforts to obtain information," even if other agencies, like a police department, have it in their possession. If they cannot obtain that information, the prosecutors would have to alert the defense.
The justices heard that the existing rule makes it almost impossible for unethical prosecutors to face sanctions, and that the modifications were intended to preempt legislation aimed at prosecutors. The proposal is also a response to a state Supreme Court decision from 2002 that laid out the standard for holding prosecutors professionally accountable when they fail to disclose information casting doubt on a defendant's guilt. In that case, a hearing board decided a prosecutor violated Rule 3.8(d) in two separate criminal matters she handled.
In one instance, the prosecutor knew the victim recanted her story of abuse, but waited until after a court hearing to tell the defense. She dismissed the charges in exchange for the defense attorney agreeing not to file sanctions against her. Similarly, her office dismissed charges against a second defendant after the prosecutor waited until after a key court hearing to disclose that the victim denied making a prior allegation.
The Supreme Court decided the unnamed prosecutor did not act with the intent to gain an advantage in the cases, and clarified that disclosure is only required "if evidence is material to the outcome of the trial."
Daniel P. Rubinstein, the district attorney of Mesa County who worked on the modifications to Rule 3.8(d), indicated that such focus on the outcome of a criminal case was inadequate and unhelpful to prosecutors.
"We need to make a decision: Do we have to chase something down? Do we have to look for something? And to have us in that moment say, 'Three or four or five years from now, can we say that doing that or not doing that would have affected the outcome of the case?' — does not give us any guidance," he told the justices on Tuesday.
At the same time, the court's members saw defects with the proposal's obligation for prosecutors to disclose information that affects a defendant's "critical decisions."
"I don't know how a prosecutor is supposed to know what a defendant thinks a critical decision is in a case," said Justice Richard L. Gabriel.
"Why not just say the decision to plead guilty?" added Justice William W. Hood III. "It seems like what it's really trying to get after is the decision to plead guilty."
The Supreme Court received comments from prosecutors and defense attorneys alike taking issue with various aspects of the rule change. Robert M. Russel of the Denver District Attorney's Office indicated he did not want the rule to "subcontract" criminal investigations to prosecutors, and that the rule should not impose obligations on prosecutors after a conviction.
In contrast, the Colorado Criminal Defense Bar wanted to require prosecutors to not only disclose to the defense when police agencies do not provide relevant information, but to alert judges as well. On the whole, commenters supported the rule in principle.
"Asking accused individuals — many of whom lack higher education and who suffer from mental illness or drug addiction — to make such weighty decisions without full information about favorable information necessary to defend their cases is coercive, unfair, cruel, and unjust. It should also be unethical," Gail K. Johnson, a civil and criminal defense lawyer in Boulder, wrote to the court.
Newly-confirmed U.S. Attorney Cole Finegan also weighed in, sending a letter to oppose the rule as written. At the hearing, Finegan's predecessor, former Acting U.S. Attorney Matthew T. Kirsch, favored keeping the current rule and, if anything, add a provision protecting prosecutors from discipline if they act in good faith.
Justice Carlos A. Samour Jr. wondered why the federal prosecutor's office in Colorado was speaking out against the rule change when the state's prosecutors had not raised similar concerns.
Kirsch responded that the district attorneys may have felt "constrained" in speaking out because they did not want to rock the compromise with defense lawyers.
"With all due respect to all of my fellow prosecutors, drafting ethics rules is not what we do every day and it might not be what we're particularly good at," he added.
Members of the Supreme Court appeared to lean toward sending the changes back to the subcommittee to address the concerns raised. While Hart was vocal about Colorado potentially being out of step with how other states treat prosecutors' disclosures, some justices were more receptive to the compromise reached.
"Here we have DAs and defense attorneys in the criminal arena, who don't often agree on things, coming to us and saying, 'Hey, we worked a lot on this and we came up with this compromise and we're asking you to accept it.' Shouldn't that carry some weight?" Samour wondered. "They're both willing to live with it."
