July 30, 2015
Following the widely criticized prosecution of the late Alaska Senator Ted Stevens, the Department of Justice (“DOJ”), understandably, took steps to learn from the mistakes made in that case by drafting and distributing a prosecution playbook, known as the “Federal Criminal Discovery Blue Book.” The Blue Book addresses the government’s obligations to turn over information to defense counsel, as required by Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny.

In February 2014, the National Association of Criminal Defense Lawyers (“NACDL”) sued DOJ in federal court, claiming DOJ improperly refused to disclose the Blue Book pursuant to the NACDL’s Freedom of Information Act requests. DOJ argued that the Blue Book constituted attorney work product and was therefore exempt from disclosure. In a December 2014 Order, U.S. District Court Judge Colleen Kollar-Kotelly, of the U.S. District Court for the District of Columbia, agreed with the government.

The NACDL appealed that decision to the U.S. Court of Appeals for the D.C. Circuit, where, last week, it filed its opening brief. The NACDL has since gained support from numerous third parties, including the American Civil Liberties Union, The Constitution and Innocence Projects, and various law professors from across the country. According to the NACDL and its amici, the case involves the public’s ability to hold prosecutors accountable for their conduct. The Blue Book’s disclosure, they argue, is necessary to further that vital interest.

Senator Stevens’ conviction on public corruption charges for allegedly filing false financial disclosure forms was thrown out in 2009, after it was revealed that prosecutors had withheld significant exculpatory evidence from the defense, in violation of their constitutional disclosure obligations.

A copy of the NACDL’s opening brief can be found here. The government’s opening brief in the D.C. Circuit is due in August.