On Oct. 17, The Post told the story of Dwight Grandson, who spent six years in prison after being convicted of murder in the District in a trial marred by the prosecutor’s failure to share evidence that cast doubt on the government’s case. Grandson is now free after being found not guilty this month in a new trial. But unless prosecutors change their practice or the District reforms the discovery rules, unfair trials will continue to occur.
The District can adopt a proven solution to the problem of evidence violations by prosecutors: open-file discovery. Under this system, defense lawyers are granted greater access to the information in the government’s case file — not just what prosecutors decide must be turned over. The practice, embraced by the American Bar Association and many jurisdictions, helps to prevent wrongful convictions, as well as expensive retrials like Grandson’s, because it eliminates the possibility that a prosecutor will fail to recognize exculpatory evidence or fail to turn over such evidence in time for the defense to investigate the evidence and present it to the jury. Open-file discovery is already in use in Maryland, where it has been recognized as a better way to conduct prosecutions by Maryland Attorney General Douglas Gansler, a former prosecutor in the U.S. Attorney’s Office for the District.
Most readers are probably unaware that in the District, prosecutors do not have to reveal the identity of witnesses who will testify against a defendant until a trial begins. Furthermore, a witness’s previous statements about the crime are not given to the defense counsel until moments before he or she must begin cross-examination. These statements often contain information that contradicts the witness’s testimony, but the defense has little time to determine how best to incorporate it into the cross-examination, let alone to investigate which version is the truth and why the story has changed.
In open-file discovery, witness statements and police reports are made available to the defense early on. This is obviously much fairer, but the system is praised not just because it promotes fair trials. Prosecutors and defense attorneys in open-file discovery jurisdictions also point to savings in time and money. Cases are more likely to be resolved early by plea agreements because defense lawyers can advise their clients more accurately; early access to evidence gives them a far clearer sense of how their clients will fare at trial. Lawyers and judges also spend less time litigating discovery issues, as well as discussing sanctions for late or inadequate disclosures. Likewise, cases that proceed to trial are less likely to be delayed to allow late disclosures to be investigated. And North Carolina’s attorney general has said that open-file discovery can decrease the likelihood that a conviction will be reversed on appeal.
Those opposed to open-file discovery argue that it can lead to additional witness-safety concerns or witness intimidation, but that hasn’t happened in the jurisdictions that use it. In studies by some of the states and cities with open-file discovery (Florida, San Diego, Philadelphia, Detroit and Newark), no causal link between the practice and witness intimidation has been found. Notably, none of the jurisdictions with more open discovery practices has switched back to a more restrictive practice. Instead, these jurisdictions rely on allowing prosecutors to seek judicial intervention or protective orders on those rare occasions where discovery disclosures might jeopardize a witness’s safety.
If a prosecutor can turn to the court to address a witness-safety concern, one has to wonder what the real counterargument to open-file discovery can be. In a system founded on the presumption of innocence but which pits the resources of the United States against the individual, evidence that supports the prosecution ought to be able to withstand pretrial scrutiny by defense attorneys. And evidence that supports the defense must be given to defense lawyers in time for the defense to investigate the evidence. Justice deserves no less.
The writer is the director of the D.C. Public Defender Service.