By Shana-Tara O’Toole | Due Process Institute | President
Today Due Process Institute filed an amicus brief at the U.S. Supreme Court (SCOTUS) in support of granting certiorari in Woodard v. United States. We filed in this case because we believe that SCOTUS should strike down requirements in the Tenth Circuit and other appellate courts that place undue burdens on defendants to show their due process rights have been violated by prosecutorial pre-indictment delay. We are especially honored that former Deputy Solicitor General Michael Dreeben and his team at O’Melveny & Meyers LLP are representing us pro bono in this matter.
The brief argues, among other issues, that the Court should protect defendants’ rights against lengthy and unnecessary pre-indictment delays. If the unconstitutional delay Mr. Woodard suffered had occurred in another jurisdiction, he would be a free man today. But because the Tenth Circuit is a jurisdiction that requires a defendant to show that the prosecutor intended to harm him with such a lengthy pre-indictment delay the lower courts have denied Mr. Woodard relief. Neither history nor practical considerations, however, justify imposing such a burden on a defendant whose due process rights have been violated.
From our brief: The focus on prejudice to the defendant and objective reasons for delay, rather than the subjective intent of the prosecution to undermine the defense case, comports with the purpose of the due process guarantee. That guarantee derives from Magna Carta . . . which required the State to “not deny or defer to any man either justice or right.” . . . Whether a defendant has a fair and reasonable opportunity to prepare his defense turns in part on what evidence is available to him. And the longer a prosecution is delayed, regardless of the reason for that delay, the more difficult it will be for a defendant to locate and present the necessary evidence.”
This problem is not confined to just the Tenth Circuit, as several state courts of last resort have similar requirements. But remedies for serious due process violations should not be determined by happenstance of appellate jurisdiction or depend on a defendant gaining the rare access to information that sufficiently supports an allegation of prosecutorial malice. We ask the Court to remove these impermissible hurdles to relief for due process violations.
Bigger Picture
Amicus briefs allow organizations like ours to bring specific legal issues to the justices’ attention in cases before them, but it is not usually the appropriate medium for broader philosophical and systemic critiques of our criminal legal system. As such, I wanted to take this opportunity to explain why this issue is so important in the bigger picture of criminal adjudication and how it fits in with our broader aims at Due Process Institute.
This case basically boils down to prosecutorial power and the judiciary’s (un)willingness to rein it in. As in our last “Why We Filed” post, the case at issue focuses on a procedural delay, which to most people probably doesn’t sound that bad in the grand scheme of things. In this particular case, there is no corrupt prosecutor withholding evidence he knows exonerates the defendant, nor is the prosecutor knowingly suborning perjury to get a conviction. In a media culture with the mantra “if it bleeds, it leads,” abuse of criminal procedure sounds like a minor inconvenience. But that’s part of the reason why procedural abuses are such a rampant problem: process is often banal and can be commonplace, and thus abuses tolerated in courtrooms are basically ignored in the court of public opinion and have gone unaddressed. The consequences of procedural delays, however, can be dire for those accused of crimes.
The Power of Procedure
Prosecutors, who are disproportionately represented in the judiciary, enjoy substantial deference or, at least, the benefit of the doubt in most of their decision making. Because they hold so much power in the criminal adjudication process—such as which charges to file, whether to recommend pretrial detention, and even to unilaterally set the terms of a plea bargain—the ability to manipulate procedure to the detriment of the accused is a more serious threat to justice that it may seem.
The ability to delay proceedings like indictments and trials harm arrestees and defendants in many different ways. Delays can threaten the quality or availability of evidence such as cell phone data or witness testimony. In addition, if the arrestee is in pretrial detention, every day away from his home and job is a psychological and economic stressor. Given that most of the people caught up in the criminal justice system are in the lowest socio-economic strata to begin with, those stresses can be so great to induce even an innocent person to do whatever it takes to get them home as soon as possible.
In the immediate case, Mr. Woodard claims that the delay to indict him stemmed at least in part from the government seeking his cooperation in another matter. Sometimes, particularly in drug cases, such cooperation may include working as an informant to trap individuals authorities believe are “bigger fish.” As The New Yorker’s Sarah Stillman and others have documented over the years, such cooperation can have tragic consequences if those operations go wrong. Hanging the threat of prosecution over an individual indefinitely can thus be extortive and is fundamentally unjust.
Exceptions Become the Rule
Whatever the ultimate reasons for the delays in Mr. Woodard’s case, it should be impermissible for prosecutors to continuously draw out proceedings to get more of what they want. Judges must stop tolerating unnecessary delays, which most defense lawyers would say are now commonplace. The sheer size of our criminal legal apparatuses has systematized injustices to the point they have become standard practice. In such a system, prosecutors need not be evil or corrupt to deny justice to defendants; they only need a legal regime that treats exceptions as a way of doing business.
The restoration and strengthening of due process protections is the core mission of Due Process Institute. The seemingly innocuous exceptions to laws governing prosecutions and the rights of the accused can inflict profound damage not only to individuals, but to the cause of justice itself. The Due Process Clause and its guarantees of a procedurally fair trial protect us from government abuses. Whether or not the abuses were intended to be malicious should be of no consequence if we are to ensure the integrity of the criminal adjudicatory process. For those reasons, we hope SCOTUS takes Mr. Woodard’s case and removes the barriers to due process in the Tenth Circuit and elsewhere throughout the country.
Again, we thank Michael Dreeben, Kendall Turner, and their team at O’Melveny & Meyers LLP for so ably representing us on this brief, which you can read in full here.