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United States v. Slone

United States District Court, Sixth Circuit

October 29, 2013

EUGENE SLONE, Defendant.


AMUL R. THAPAR, District Judge.

Defendant Eugene Slone moves the Court to order immediate disclosure of virtually all the government's evidence in this case. He argues the Constitution requires such wideranging discovery because it is necessary to his participation in the Death Penalty Protocol- the Department of Justice's internal process for deciding whether to seek the death penalty. Slone also maintains that the Court's inherent powers permit it to order such intrusive disclosure. The Constitution, however, only guarantees Slone the discovery necessary to a fair trial. Since the DOJ's Protocol is a purely executive process having nothing to do with trial, the Court may not rely on either the Constitution or its inherent powers to order the immediate discovery Slone seeks.


The United States accuses defendant Eugene Slone of murdering two federal informants, a capital offense. See R. 382 at 1. Before the government decides to seek the death penalty, however, Slone will have the chance to present mitigating evidence to the Department of Justice ("DOJ") pursuant to its internal Death Penalty Protocol ("DPP"). Id. at 2. Slone now moves for immediate, court-ordered discovery of effectively all evidence relevant to the government's decision whether to pursue a death sentence. See R. 352. He specifically seeks: 1) all exculpatory and impeachment evidence ( Brady and Giglio material); 2) all evidence regarding aggravating and mitigating factors; and 3) all evidence pertaining to the strength of the government's case against Slone. Id. at 1. Slone argues that due process and the right to effective assistance of counsel compel such comprehensive disclosure because "[w]ithout it, the defense will be unable to demonstrate weaknesses in the Government's case and its witnesses to the U.S. Attorney or to the [DOJ Capital Case Unit]." Id. at 5. Even if the Constitution does not require disclosure at this stage, however, Slone also maintains that "[t]his Court has the inherent authority to order discovery beyond the bounds of the discovery rules." Id. at 11.

The government, for its part, has already agreed to disclose a great deal. Indeed, in response to a prior discovery motion, the prosecution consented to a court-monitored procedure proposed by Slone for handling subsequent Brady requests. See R. 357 at 5. The government pledged to promptly disclose or provide to the Court for in camera review any evidence that arguably qualifies as Brady material. Id. But for reasons beyond the Court, Slone does not seem interested in utilizing his own process. See R. 361 (motion for release of blood splatter evidence). Regardless, the government has to date complied with all of Slone's discovery requests with only one consistent exception: the prosecution refuses to disclose Jencks Act material and any evidence potentially identifying its witnesses. R. 358 at 2-4. In response to Slone's most recent discovery motion, the government also objects on work product grounds to immediate disclosure of aggravating and mitigating factors relevant to its decision whether to seek the death penalty. Id. at 1-2. After hearing argument, the Court now denies Slone's motion.


Neither the Constitution nor this Court's inherent authority justifies granting Slone effectively complete access to the prosecution's case file. Relying in part on Brady v. Maryland, 373 U.S. 83 (1963), several district courts have ordered discovery at the death penalty authorization stage. See, e.g., United States v. Delatorre, 438 F.Supp.2d 892, 900-01 (N.D. Ill. 2006) (citing cases). More skeptical courts-including two in this circuit-have refused to order such early discovery, doubting their authority to interfere with DOJ's death penalty authorization process. See, e.g., United States v. Haynes, 242 F.Supp.2d 540, 541 (W.D. Tenn. 2003) (holding that the government's refusal to disclose materials supporting its death penalty recommendation "is a matter of prosecutorial discretion unreviewable by this Court"); United States v. Shakir, 113 F.Supp.2d 1182, 1190 (M.D. Tenn. 2000) (holding that to order pre-authorization disclosure "would exceed the Court's jurisdiction" and "would violate the constitutionally mandated separation of powers"). This Court has already noted the Executive's prosecutorial discretion to manage the DPP. See R. 382. In light of that prerogative, the Court cannot order the discovery Slone seeks since due process does not mandate disclosure well over a year ahead of trial.

I. Brady Does Not Require Disclosure at the Death Penalty Authorization Stage

Because Brady disclosure is a trial right, Slone is not entitled to discovery at this early stage. Rooted in due process, Brady only requires disclosure of favorable evidence "material either to guilt or to punishment" in order to avoid "an unfair trial to the accused." 373 U.S. at 87-88; see also United States v. Ruiz, 536 U.S. 622, 628 (2002) (explaining that Brady arises from the Constitution's "basic fair trial' guarantee"). Given that foundation, the right to disclosure is limited to the final adjudication of a defendant's "life" or "liberty." U.S. Const. Amend. V. The Constitution thus only requires the government to disclose favorable evidence regarding guilt or sentencing "in time for its effective use at trial. " See United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994) (emphasis added).

And since Brady is anchored to trial, defendants have no general right to pretrial disclosure of all useful evidence that would merely aid their preparation. See Ruiz, 536 U.S. at 628. Such an expansive right would amount to a constitutionally mandated open file policy, but the Due Process Clause does not go so far. See United States v. Bagley, 473 U.S. 667, 675 (1985). To be sure, nothing in the Constitution prevents the prosecution from disclosing more than Brady requires. For example, Federal Rule of Criminal Procedure 16 actually requires the government to disclose covered materials "upon a defendant's request"-in other words, immediately. See Fed. R. Crim. P. 16. And in capital cases like Slone's, the prosecution must disclose its witnesses "at least three days before commencement of trial." See 18 U.S.C. § 3432. But Slone does not invoke either Rule 16 or § 3432, and neither applies to the discovery motion now under consideration. And, regardless of what the Constitution permits, Slone's presentation to the DOJ Capital Case Unit is ultimately irrelevant to Brady.

Measured by Slone's right to a fair trial, the prosecution's refusal to immediately disclose the evidence Slone seeks would only violate Brady if any further delay could make a difference to his trial's result. See United States v. Spry, 238 F.Appx. 142, 147-48 (6th Cir. 2007). Delayed disclosure of Brady evidence does not automatically violate the Constitution. See Norris v. Schotten, 146 F.3d 314, 334 (6th Cir. 1998). Even disclosure at or shortly before trial creates no problems in most cases because the defense remains able to use the disclosed favorable evidence effectively. See, e.g., United States v. Crayton, 357 F.3d 560, 569 (6th Cir. 2004) (finding that the defendant suffered no prejudice due to the government's failure to provide impeachment material until shortly before witness's testimony). Only when delay makes the effective use of evidence at trial impossible does it threaten a fair trial. Thus, the government violates its Brady obligations when timing becomes material-in other words, when delay would prejudice Slone. See Joseph v. Coyle, 469 F.3d 441, 471 n. 21 (6th Cir. 2006). But despite Brady 's focus on effective use, prejudice in this context is judged by the delay's effect on a trial's accuracy, not by its impact on the defendant's ability to prepare. See United States v. Agurs, 427 U.S. 97, 113 & n. 20 (1976). So, delay is material, and thus a violation of Brady, only if "there is a reasonable probability that, had the evidence been disclosed to the defense" at the time in question, the outcome of Slone's trial would be different. Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting Bagley, 473 U.S. at 682). The time in question, of course, is now.

Slone has not attempted to show such prejudice. He does not even suggest that the government's current refusal to disclose will have any impact on the reliability of his trial. And with good reason: The Court has not even set the trial date. Since trial in this case is well over a year away (perhaps two), there is no reasonable chance that the government's refusal to disclose Brady evidence so far in advance could have any appreciable impact on a jury's verdict. Depending on the nature of the evidence, as already noted, even withholding disclosure until trial is underway is not necessarily material. See Crayton, 357 F.3d at 569. At this stage in Slone's case any effect on a jury is exceedingly unlikely.

True, this is a capital case presenting special concerns, but none of those concerns require disclosure so early. See Murray v. Giarratano, 492 U.S. 1, 8-9 (1989) (plurality) ("The finality of the death penalty requires a greater degree of reliability when it is imposed." (internal quotation marks omitted)). The heightened complexity and need for reliability associated with a capital trial no doubt will require disclosure of certain Brady material earlier than due process would otherwise require in a non-capital case. But that said, Slone has not offered any reason to suspect that the prosecution's failure to disclose potential Brady material yet even slightly compromises his ability to effectively use that evidence at trial. And besides, the prosecution has so far erred on the side of immediate disclosure beyond what the Constitution requires. See R. 357 at 5. The government's refusal to disclose Jencks Act material, its witnesses, and its death penalty analysis are the only limited exceptions. This cooperation strongly suggests that once further delay would impede Slone's effective defense at trial, ...

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