Government to Judge: It Sucks To Be The Defense

It's not yet known whether there was a smoking gun in the jury room, but whatever is known, it's not by the United States Attorney's office in the District of Vermont.  And it's just killing them. Bummer.

From The Barre Montpelier Times Argus (that's a name, right?):

Prosecutors are asking a federal judge to order the turnover of defense interviews with jurors who sat on the death penalty case against convicted murderer Donald Fell.

Judge William Sessions, who presided over the 2006 trial in the killing of Terry King of North Clarendon, decided in May to further consider a wide range of complaints contained in Fell’s latest appeal.

The defense made an ex parte application to interview the jurors in Fell's case, and it was apparently sufficient to get William Sessions to sign off.

In a seven-page filing, prosecutors say defense attorneys have ignored their requests to turn over the interviews in advance of an August hearing on the appeals.

In the prosecutors’ motion, Assistant U.S. Attorney William Darrow wrote that the government was not made aware of the defense motion nor was it given the opportunity to respond to the request.

Prosecutors didn’t know about the interviews until months after they were completed, he wrote, because the judge ordered that both the motion and his decision be sealed.

Can't you hear the screaming in the hallways of the office: Dammit, Darrow, get that judge to force those bastards to turn over their interviews. I don't care how you do it, just do it!  You can't see me, but I'm grinning from ear to ear just thinking about it.

In lawyerly fashion, provided your idea of lawyerly is to write insipid nonsense that only a lawyer from the government can get away with, Darrow explained to Judge Sessions:

“At this juncture, the government is completely in the dark about the facts and circumstances that led (defense lawyers) to request authorization to interview the jurors in this case and to the court’s subsequent order granting authorization (to the defense) to do so,” the motion said. “The government has no information with which to gauge the extent of the court’s authorization to (the defense.)”

Completely in the dark?  Can you imagine?  Outrageous! Impossible! However can the government prepare to address "the court's authorization to (the defense.)"  Notice that last little kicker, that it's not the propriety of the jurors' conduct that concerns the government, but Judge Session's "authorization" allowing the defense to collect evidence to be used on behalf of the defendant. How dare an Article III judge do something that allows the defense to challenge the government. They're the government! Doesn't the judge realize that?

But they're in the dark, you say?  Yeah, how about that. Imagine what it would be like for the government to not have access to all information, inside and out, prosecution and defense.  It makes them almost like, well, the defense.

And they can't stand it. They are pulling their hair out, infuriated at the idea that they are expected to prepare for a hearing without having complete and total access to whatever the defense has.

U.S. Attorney Tristram Coffin said Tuesday it’s not uncommon for motions and decisions to be kept secret from either the prosecution or defense through the sealing of records.

But with the hearing in August closing in, Darrow wrote that his ability to prepare an argument about the alleged juror misconduct has been hamstrung after repeated requests to Fell’s New York attorneys have gone unanswered.

“The government simply cannot do its job blind,” he wrote.

Neither can the defense, pal, and yet that's how we do our job in every case, as you refuse to provide basic information about the allegations because the Rule 16 doesn't make you and, as you so love to argue, it would be terribly unfair to the government to be compelled to disclose what it contends is the truth before trial so it can't sandbag the defense.

Sucks, doesn't it?

This is what it's like to represent the defendant in a federal criminal prosecution. Suck it up.

H/T Alex Bunin, who I suspect is also grinning ear to ear about this one, but won't be truly happy about it until Judge Sessions grants Fell a new trial. 





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