There is very little potential motive for a prosecutor to purposely withhold giving the discovery to a defense attorney. Unlike whiskey and wine, our cases do not get better with age. A defendant’s case, on the other hand, often gets better with delays. Sometimes complaining witnesses, officers, and even deputy prosecutors have less zeal to prosecute a defendant after memory has faded and the initial shock of the crime has worn off. Witnesses move away. Officers retire or take jobs in other states. Memories fade. Delays cause backlogs in already overburdened caseloads of deputy prosecutors and make their jobs more difficult. A typical prosecutor in this state has hundreds of cases going on at any one time. It simply does not make any sense for a prosecutor to purposely delay the discovery process.

Many criminal defense attorneys in Sandpoint and Coeur d’Alene would attest that oftentimes my office will provide discovery early for them if they provide a reason why it is needed early, such as a separate Administrative License Suspension (“ALS”) hearing or a civil collateral matter such as a divorce. We provide these things not based on a Criminal Rule and the fourteen-day limit, but because these attorneys are colleagues, and we have no desire to make their job more difficult.[ii] The result is a relationship which works well in the court system. On the other hand, if local attorneys here were filing motions to compel and requests for sanctions, it is entirely possible that the collegial atmosphere would dissipate and the practical result would be all our jobs – for prosecutors, defense attorneys, judges, and court personnel –would be more difficult.

The Bigger Picture

The job of being a prosecutor has become more difficult.

If a defense attorney makes a mistake, it may amount to ineffective assistance of counsel and, perhaps ironically, prosecutors are charged with defending the effectiveness of such assistance in post-conviction proceedings. If a prosecutor is unsuccessful in that defense, the court may order a re-trial. If a prosecutor makes a mistake, it may amount to misconduct and the court may order a re-trial. I agree with the author’s conclusion in the March-April 2023 Discovery Delayed is Justice Denied article that prosecutors still have a tremendous amount of power in the criminal justice system. Prosecutors should fully embrace the responsibility that comes with that power. But, as the President of the Prosecutor’s Association, I believe it is important that we continue to recruit and employ excellent deputy prosecutors throughout this wonderful state.

Prosecutors are under attack from members of the public and media in ways that other attorneys and, quite frankly, judges, are not.  It seems to me that attorneys should not contribute more to this with questionable claims of prosecutorial misconduct but rather should work within the confines of the paradigm that has worked so well for so long.