Protect Californians from Getting Nifonged: The Case for Open File Discovery Kenan Gultekin1 I. Introduction Prosecutors possess the power to punish criminals, but they also have the ability to abuse this authority and injure the innocent. Recent events in North Carolina have made clear the dangers of prosecutorial misconduct. Durham County District Attorney Mike Nifong was disbarred for failing to disclose exculpatory evidence to the defendants, a group of Duke University lacrosse players.2 Nifong withheld results of DNA testing that found on the rape accuser the presence of DNA from at least four males who were not the defendants.3 California is not immune from prosecutorial misconduct. The California Commission on the Fair Administration of Justice held a hearing at Loyola Law 1 The author would like to thank Professor Levenson for her invaluable assistance in writing this Note. 2 Duff Wilson, Prosecutor in Duke Case Disbarred by Ethics Panel, The New York Times, Jun. 17, 2007, at A1. 3 See infra pp.40-45. - 1 - School in the summer of 2007.4 The Commission concluded that “professionally inappropriate behavior by prosecutors or defense lawyers is not widely prevalent.”5 The Commission did find misconduct significant enough to recommend changes in the reporting of attorney misconduct.6 4 Henry Weinstein, Lawyers Clash over Prosecutorial Misconduct: Some Tell a State Panel that Occurrences are Common but Discipline is Rare. Others Say Current Rules Guard Against Excesses., Los Angeles Times, Jul. 12, 2007, at B2. 5 California Commission on the Fair Administration of Justice, Report and Recommendations on Professional Responsibility and Accountability of Prosecutors and Defense Lawyers, Oct. 18, 2007, at 1, available at http://www.ccfaj.org/documents/reports/prosecutorial/offici al/OFFICIAL%20REPORT%20ON%20REPORTING%20MISCONDUCT.pdf. 6 Id. at 1-2. Specifically, the Commission recommends: a California Court Rule that reiterates the California Business and Professions Code’s requirement that judges report attorney misconduct to the State Bar; modification of the California Code of Judicial Ethics, so that judges report attorney misconduct in criminal proceedings to the State Bar and to the attorney’s supervisor; and the - 2 - The Commission determined that the lack of accountability for misconduct inhibits the effectiveness of the criminal justice system.7 Professor Cookie Ridolfi of Santa Clara University found that prosecutorial misconduct occurred in 443 cases out of the 2130 state cases over the last ten years in which misconduct claims were raised.8 Failing to disclose exculpatory evidence and making improper arguments were the two most common forms of misconduct.9 A review of 727 jury trial appeals in Santa Clara County identified 261 cases involving questionable behavior by the prosecutor.10 In one case that resembles Nifong’s prosecution of the Duke lacrosse players, District Attorney inclusion of complaints of attorney misconduct in the State Bar’s annual reports. Id. at 24-29. 7 Id. at 1-2. 8 Id. at 3. 9 Id. 10 Fredric N. Tulsky, The Santa Clara County Criminal Justice System Failed Miguel Sermeno, San Jose Mercury News, Jan. 22, 2006, at A1. - 3 - Benjamin Field withheld a medical examination that showed no evidence of sexual assault.11 Mike Nifong’s prosecution, however, is a rarity.12 “Because it is so difficult to discover, much prosecutorial misconduct goes unchallenged, suggesting that the problem is much more widespread than the many reported cases of prosecutorial misconduct would indicate.”13 Professor Laurie L. Levenson of Loyola Law School reported that within the California District Attorneys Offices there is 11 Id. Fredric N. Tulsky, Prosecutors, San Jose Mercury News, Jan. 23, 2006, at A1. 12 David Feige, One-Off Offing: Why You Won’t See a Disbarment Like Mike Nifong’s Again, Slate, Jun. 18, 2007, http://www.slate.com/id/2168680; Emily Bazelon, Prosecutor Protector: The Ethics Charges Against District Attorney Mike Nifong Are a Rarity, Slate, Feb. 7, 2007, http://www.slate.com/id/2159261. 13 Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor, 126 (Oxford University Press 2007). Davis also points to the Supreme Court’s deference to prosecutors, its valuing criminal convictions over punishing prosecutors, and the fact that the defense seeks reversal of a conviction as its remedy. Id. at 158. - 4 - “a complete lack of transparency of internal discipline procedures.” 14 Professor Levenson also found that “many offices lack formal procedures for tracking and investigating complaints, with no uniform policy.”15 While both the United States Constitution16 and California discovery rules17 require the prosecutor to disclose exculpatory information, this Note argues that an open file system like that used in North Carolina18 better protects a defendant’s right to due process. An expansive discovery system creates an atmosphere of transparency in criminal procedure. There is a presumption that the defendant is entitled to complete access to the prosecutor’s files. Open file discovery reduces the discretion the prosecutor has in deciding which evidence to disclose to the defendant. By reducing this discretion, which is the source of much prosecutorial misconduct,19 open 14 California Commission on the Fair Administration of Justice, supra note # at 10. 15 Id. 16 See infra Part IV. 17 See infra Part VI.A. 18 See infra Part V.A. 19 See infra pp. 17-21. - 5 - file discovery makes it more likely that the prosecutor will comply with her constitutional obligations. Using Nifong as a case study, this Note will compare North Carolina’s open file discovery to the more limited reciprocal discovery system in California. Part II of this Note introduces the factual background by recounting the events that led to the accusation of rape against the Duke lacrosse players. Part III explores how prosecutorial misconduct occurs and the motivations for misconduct. Part IV explains the constitutional requirements of prosecutors regarding discovery. Part V analyzes the North Carolina discovery statute and examines how the defense team used the North Carolina discovery rules to prove Nifong’s misconduct. Part VI analyzes the California discovery statute and hypothesizes what would have happened if the defense had been operating under California rules. Part VII concludes that open file discovery provides a necessary check on the power of the government. Victims’ rights movements have created systems of criminal procedure that are prejudiced against the defendant.20 Some believe that judicial scrutiny of the 20 See Christopher A. Bracey, Book Review: Truth and Legitimacy in the American Criminal Process, 90 J. Crim. L. - 6 - criminal process is no longer necessary because minorities now have sufficient political power to protect themselves.21 As this Note will show, everyone needs protection from the discretion of the police and the prosecution. The Duke lacrosse players who were charged with rape are not minorities-they are white-but they were still the victims of prosecutorial misconduct. We need to protect the rights of criminal defendants not because of their race or social class, but because of the power of the state to prosecute. The potential to & Criminology 691, 691 (2000) (“A new perspective on the criminal process, premised on the belief that the social and political conditions that necessitated liberal reform of the criminal process no longer exist, . is quickly gaining currency in both the theoretical halls of academe and the pragmatic realm of municipal governments. This new perspective threatens to render serious talk about the need to protect the rights of the accused politically and culturally passé. If the reforms of the 1960s and 1970s constituted a revolution in criminal procedure, the current climate reflects a powerful and sustained counter- insurgency.”). 21 Id. at 692. - 7 - abuse this power is great, and the consequences can be devastating. Few areas of state activity pose as significant a threat as the police power. Imprisonment is the ultimate restriction of liberty. The United States Constitution structures the government in a way that limits its power.22 It is significant that four of the ten Bill of Rights pertain to criminal justice.23 As citizens, we need the power of government to regulate a complex society, but checks and balances on this power exist because the government itself poses a threat to 22 See e.g., William D. Araiza et al., Constitutional Law: Cases, History, and Dialogues 462 (3d ed. 2006) (“In [the Framers’] view, a consequence of too much accumulation of power was the loss of liberty of the citizens being governed.”). 23 U.S. Const. amends. IV (prohibiting unreasonable searches and seizures), V (requiring due process and prohibiting self-incrimination and double jeopardy), VI (requiring a speedy trial, information regarding the charges, the ability to confront opposing witnesses and obtain one’s own witnesses, and assistance of counsel), and VIII (prohibiting excessive bail and cruel and unusual punishment). - 8 - citizens.24 The prosecutor is no exception.25 We need the prosecutor to pursue convictions of criminals, but the possibility of abusing this power means that the prosecutor poses a threat to us as well. As citizens, we must demand protection from the state. The United States Supreme Court has determined that due process requires a prosecutor to disclose exculpatory evidence.26 The constitutional guarantees of fair criminal discovery, however, are vague. The fundamental constitutional right of due process demands clear guidelines. Criminal defendants require the statutory 24 Cf. Margaret L. Paris, Faults, Fallacies, and the Future of Our Criminal Justice System: Trust, Lies, and Interrogation, 3 Va. J. Soc. Pol’y & L. 3, 61-62 (1995) (“The absence of rules constraining interrogators’ lies contributes to an atmosphere in which lies and tricks are expected fare from government actors. It is no wonder that the assurance ‘I’m from the government-I’m here to help you,’ has become a joke.