Earlier this month, the U.S. Court of Appeals for the D.C. Circuit (CADC) ruled that the U.S. Department of Justice Federal Criminal Discovery Blue Book for prosecutions were exempt from Freedom of Information Act (FOIA) requests. The National Association of Criminal Defense Lawyers (NACDL) filed the suit to make the book public, and for good reason.
For background, criminal discovery is the process by which a prosecutor’s office turns over evidence to the defense team that is relevant to the criminal case before trial. Particularly, evidence that might be helpful or exculpatory to a criminal defendant must be turned over under Brady v. Maryland (1963) and subsequent cases. For example, if investigators independently found an eyewitness that supports a defendant’s alibi, or discovers that a witness or police officer has a history of dishonesty, that information must be turned over to the defense counsel in the furtherance of justice. Such evidence is known as “Brady material.” 
The origin of NACDL’s case dates back to the bungled prosecution of the late Sen. Ted Stevens (R‑AK). A federal judge threw out Stevens’ 2008 conviction for corruption because the DOJ hid evidence from the defense team, including contradictory statements by a star witness that were crucial to proving Stevens’ alleged criminal intent. Furthermore, the judge ordered an independent inquiry into the handling of the case that resulted in a damning 514-page report that faulted the DOJ for its mismanagement and “egregious misconduct” in the case.
The prosecution and conviction ended the career of a long-serving United States Senator. If the DOJ could do that to him, they may do (and probably have done) that to people much less powerful. Consequently, Congress held hearings to consider whether or not to pass new legislation to ensure discovery would be properly handled within the Department of Justice. But as NACDL wrote in their 2014 complaint:
DOJ asserted that federal legislation was unnecessary to prevent future discovery abuses because it had instituted various internal reforms. During the hearings, DOJ asserted it had implemented “rigorous enhanced training” to ensure that “prosecutors and agents [have] a full appreciation of their responsibilities” under federal law. As part of this effort, DOJ stated that it had created a “Federal Criminal Discovery Bluebook” that “comprehensively covers the law, policy, and practice of prosecutors’ disclosure obligations” under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. According to DOJ, the Blue Book was “distributed to prosecutors nationwide in 2011” and “is now electronically available on the desktop of every federal prosecutor and paralegal.” [internal citations omitted]
In short, the Blue Book should assure everyone that DOJ prosecutors will play by the rules…but everyone will just have to take the DOJ at their word on that because the Blue Book is off-limits to the public.
Although the CADC agreed with the lower court ruling and the DOJ’s interpretation of current precedent, Senior Judge David Sentelle wrote a concurrence to the opinion, joined by Senior Judge Harry Edwards, that read: 
It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. 
In short, I join the judgment of the majority, not because I want to, but because I have to.

Such a concurrence signals that the guiding precedent in Schiller should be re-examined and such information vital to the public interest should be made public. “Just trust us” is not a reasonable guarantee of governmental and prosecutorial accountability.


The NACDL released a statement that they will file for an en banc hearing at CADC. You can read the opinion and concurrence here. Judge Sentelle delivered the B. Kenneth Simon Lecture on Constitutional Thought at Cato on Constitution Day 2013 that you can read here.