Public defenders say discovery violations an everyday occurrence

Highly publicized discovery violations in Freddie Gray case highlight grievances

By Heather Cobun
BridgeTower Media Newswires
BALTIMORE, MD — As Baltimore City Circuit Judge Barry Williams meted out sanctions for highly publicized discovery violations by prosecutors in the Freddie Gray cases, public defenders in the city were quick to point out that the violations were not rare missteps.

But interviews with public defenders in Maryland’s largest jurisdictions show similar problems across the state.

In Prince George’s County, district court attorneys receive discovery from prosecutors a few days before their client’s court date – if they get it at all. In Montgomery County, defense attorneys have to stay on top of prosecutors and follow up when seeking documents. In Anne Arundel County, not receiving a police report until a day or two before trial happens enough to be noticed.

“In many cases, we have state’s attorneys violating our clients’ rights to discovery,” said Samantha Sandler, circuit court supervisor for the Montgomery County Office of the Public Defender. “It’s definitely a problem. We shouldn’t be blindsided because the law allows us to have everything.”

Prosecutors in these jurisdictions, sometimes through spokespeople, either explained or downplayed the grievances of the public defenders, although some acknowledged where improvements could be made.

“It’s a huge challenge for the large jurisdictions just purely because of the volume,” said Montgomery County State’s Attorney John McCarthy.

Withholding evidence

Most public defenders said they believe there are attorneys who either unintentionally withhold evidence their clients are entitled to or deliberately interpret discovery rules narrowly.

Maryland Public Defender Paul DeWolfe said withholding exculpatory evidence has historically been an issue in the Baltimore city.

“One of the issues with discovery is whether the prosecutors hold back Brady material,” he said, referring to the Supreme Court case that held suppressing evidence favorable to the defendant violates their rights.

Natalie Finegar, the deputy public defender in Baltimore, said evidence can be obviously exculpatory or require some follow-up investigation by the state to determine if it needs to be disclosed, and it's the prosecutor's obligation to do those follow-ups. If they believe evidence is missing from discovery, defense attorneys reach out and attempt to be cordial with the state but are willing to litigate a potential violation.

"We have had instances where we really feel like someone is hiding something,” Finegar said.

Difficulties getting discovery in Montgomery County can also depend on which prosecutor represents the state, according to Sandler.

“I think that there are certain state’s attorneys...who are very good with discovery and try to get every single thing for you as soon as possible and i think there’s other state’s attorneys who don’t,” she said. “There are state’s attorneys who just want to win and they don’t think about whether maybe this person isn’t guilty.”

In Prince George’s County, public defenders are given as little discovery as possible in district court and as much as possible in circuit court, according to Llamilet Gutierrez, an assistant public defender.

“We’re caught between a rock and a hard place because... I’m not going to beg the state to give me information that’s going to convict my client when they’re supposed to give it to me anyway,” she said.

William Davis, the district public defender in Anne Arundel County, said defense attorneys don’t know what they don’t have and prosecutors are in charge of deciding what is exculpatory and needs to be disclosed. Attorneys learn how to ask for documents they might be missing and usually get the information, he said.

“I’m not going to say it never happens, but I haven’t seen any systematic issues where they’re deliberately withholding information,” Davis said.

Prosecutors’ perspective

Prosecutors in these jurisdictions, sometimes through spokespeople, either explained or downplayed the grievances of the public defenders though some acknowledged where improvements could be made.

Baltimore City Chief Deputy State’s Attorney Michael Schatzow, the lead prosecutor in the Gray cases, said delays are often because prosecutors do not have the requested discovery, which is coming from a lab, the police or another third party.

“It’s not a condemnation of any agency or system or any aspect of government, this is what happens,” he said.

Schatzow said he believes instances where discovery doesn’t go out on a timely basis despite being in the prosecution’s possession are “regrettable” and “very rare.”

Baltimore County State’s Attorney Scott D. Shellenberger said he stresses the importance of proper discovery disclosures in his office, especially potentially exculpatory evidence, because it’s better to turn everything over than be overturned on appeal years later and forced to retry the case.

“You want to do it right the first time,” he said. “We try really hard to do that here.”

With so many people and agencies involved in investigating and prosecuting a case, however, it’s inevitable that sometimes information is not disclosed to the state and therefore doesn’t get to the defense.

“As long as you have different agencies reporting to you, you’re always going to have problems getting every piece of paper that you need,” Shellenberger said. “It’s easy to order the police report, but there are times when you’ll be talking to the detective and he’ll say something and you’ll say, ‘Where’s that piece of paper?’ and he’ll pull it out.”

District Public Defender for Baltimore County Donald Zaremba said he does not believe there are systemic issues in the county but agreed there are times when police or other agencies reporting to prosecutors disclose something late.

“That’s going to happen in thousands of cases,” he said.

McCarthy, the top prosecutor in Montgomery County, said the challenge of dealing with multiple agencies on any given case can lead to delays in getting discovery and makes it challenging to change policies.

“It’s not just going to one other source and saying ‘let's get our act together,’ it’s going to nine or ten different agencies,” he said.

McCarthy said his office had a study group a few years ago to address how things operated in district court and revamped the approach to discovery.

“I think we improved our delivery services on district court matters immensely but in order to do it, you can’t sit in a room by yourself,” he said.

John Erzen, spokesman for the Prince George’s County State’s Attorney’s Office, said it’s helpful when defense attorneys raise concerns because it allows prosecutors to review their practices and those of the agencies they work with.

Delays in district court discovery do happen, Erzen acknowledged, but said the office is trying to streamline its processes, especially when working with other agencies.

“We are aware of issues that exist in district court and are continuing to address those and make sure things are moving at a better pace,” he said.

Heather Epkins, spokeswoman for the Anne Arundel County State’s Attorney’s Office, said her office holds regular meetings with the local Office of the Public Defender but said her office is not aware of any outstanding issues.

Variety of sanctions

Compounding the problem for public defenders is the punishment for discovery violations varies by jurisdiction.

Sanctions in district court are rare in Anne Arundel County, according to Davis, though circuit court judges have gotten better about prohibiting the state from using evidence it discloses late or fashioning other remedies for the defendant.

Gutierrez said district court judges in Prince George’s also do not sanction discovery violations, possibly because there is no appellate court to review evidentiary rulings. An appeal to circuit court is de novo.

Meaningful reform also is hard when attorneys are fighting on a case-by-case basis because that's their job, said Finegar, the Baltimore city public defender. Judges have a "really mighty sword" to combat violations and can even dismiss a case if the conduct is egregious.

“The system is setup to punish the state and then the state is supposed to respond to that," she said.