United States v. Castro

          R. Steven Whalen U.S. Magistrate Judge

         OPINION AND ORDER RE DEFENDANTS' PRETRIAL MITIGATION DISCOVERY REQUESTS RELEVANT TO SUBMISSIONS TO THE GOVERNMENT ON WHETHER TO SEEK THE DEATH PENALTY (1) RULINGS, (2) REQUIRING THE PARTIES TO MEET AND CONFER ON THE CLASSIFICATION/REDACTION ISSUES PRIOR TO JANUARY 22, 2020 AND THEREAFTER SUBMIT A FILING LISTING THE RESOLVED/UNRESOLVED ISSUES BY JANUARY 29, 2020, AND (3) SETTING A HEARING ON DISCOVERY ISSUES ON FEBRUARY 5, 2020 AT 10:00 AM.

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         BACKGROUND

         The Court recognizes the tension between Fed. R. Crim. P. 16(a)(2):

Information Not Subject to Disclosure; 18 U.S.C. § 3592: Mitigating and Aggravating Factors to be Considered in Determining Whether a Sentence of Death is Justified; and Fed. R. Crim. P. 16(d): Regulating Discovery. The Court, after examining those provisions, sets forth the following rulings:

Given the parties' Stipulation Regarding Discovery Classifications (ECF No. 58), in advance of a discovery hearing, the parties shall classify all discovery materials previously provided, and also classify the discovery materials the Court orders the Government to provide in this Order.

         The Court adopts the following language from United States District Judge Ellen Huvelle's opinion in the death-penalty-eligible prosecution in United States v. Karake, 281 F.Supp.2d 302, 306 (D.D.C. 2003):

Given the charges that defendants confront, the Government shall be mindful that Rule 16 establishes “the minimum amount of discovery to which the parties are entitled. It is not intended to limit the Judge's discretion to order broader discovery in appropriate cases.” Advisory Committee Note to Fed.R.Crim.P. 16, and disputes should be resolved in the defendant's favor, for “the language and the spirit of the Rule are designed to provide to a criminal defendant, in the interests of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case. Similarly, the government should error on the side of disclosure when interpreting its Brady/Giglio obligations given the need for the utmost reliability in capital proceedings. Finally, it is expected that the government will continue to disclose all Brady information promptly.

(citations omitted).

         Footnote 3 on page 306 added:

Since a trial date has yet to be set, and no final decision has been made regarding whether the government intends to seek the death penalty, the government will not be required, at this time, to identify its witnesses or to produce Giglio information. The Court does not, however, agree with the government's position that, under 18 U.S.C. § 3432, it can refuse to disclose its witnesses “until very close to trial.”

(citations omitted).

         Judge Huvelle concluded, in fn. 3, “since this issue can be addressed more fully at a later date, defendants' request for a witness list and Giglio information will be denied without prejudice to being ...