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Federal Defender's Name, Reputation, Sanctions Cleared

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By William Peacock, Esq. on November 13, 2013 2:00 PM

After reading the Sixth Circuit's lengthy reversal of sanctions orders by District Court Judge John Adams, you seriously have to wonder: what's got his knickers in a twist?

As the court noted, "this case began with a government attorney's unauthorized filing of a motion for sanctions." The overzealous district attorney, after an email argument over a mutual mistake about redacted information in the discovery files, asked for sanctions due to alleged abuses of the discovery process. He later reversed course, and asked for the matter to be dropped, as his supervisors never approved the request for sanctions. In fact, all throughout the multiple sanctions hearings and the appeal, the government has opposed sanctions.

But despite the government's stance, Judge Adams ordered sanctions and a public reprimand against Federal Defender Debra Migdal. A year and a half later, the Sixth Circuit hopes that its order will "remove[] any taint of public censure on her reputation."

Rule 16, 17(c)

Rule 16 is simple: the defendant's attorney asks the prosecutor for everything in his possession that is related to the case, including inculpatory evidence that will be used at trial, and exculpatory evidence. Rule 17 is the handy compulsory process rule, which allows defendants to subpoena witnesses and documents from third parties.

Oddly enough, despite these rules being around for decades, there is still much confusion over how the two rules interact. Judge Adams was miffed that Migdal didn't request certain items, such as a Border Patrol cruiser's recording of her client's traffic stop, under Rule 16 before making Rule 17 requests. He subscribes to the "government-as-gatekeeper" rule.

He's wrong. Not only does the text of the rules say nothing of this gatekeeper role, but "the government does not possess or control all of the materials potentially relevant to a defendant's case, and is not obligated to acquire materials possessed or controlled by others."

Plus, imagine the gamesmanship and delays that would ensue if every request had to run through the prosecutor's office, then through the judge's chambers.

Standardized Forms

Oddly enough, there is no form for Rule 17(c) document-only requests. Instead, federal defenders use the form for subpoenaing witnesses to testify, and make some indication or change to the form to indicate that only documents are required.

Migdal, as many others in her office do, ordered the documents to be produced at the courtroom a few days before the actual hearing. This was done in order to get the documents early enough to prepare for the hearing and to prevent delays.

Judge Adams saw this as a "fabrication" of a hearing date, even though the same court's prior holdings conflicted on whether this procedure was proper. Proper or not isn't the question though, is it?

Good Faith ('Everyone Does It' Is a Defense)

"Judge Adams's inclination to side with one judge's view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge's reading of the controlling rule."

Conflicting case law. And she acted in accordance with widespread practice in her office. Plus, an informal survey of federal defenders' offices showed that nine out of 15 followed similar procedures as Migdal employed.

In other words, this not a case of bad faith abuse of discovery; this is a problem with unclear procedures and inadequate forms. And a district court can only use its "inherent authority" power to issue sanctions when bad faith is apparent.

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