I'm sure noted Criminal Justice Act lawyer Bruce McIntyre didn't have a heart attack just because the government withheld 3500 material in his tax case until the eve of trial (as is their practice and as the law permits). And I know for a fact the prosecutor who was opposing Bruce in that case is a principled guy who would have given up the 3500 material earlier if ordered to do so, and that probably would have been his preference anyway. But I nearly spit out my coffee last night at the Eastern District Memorial Service for Bruce when CJA lawyer Susan Kellman spoke, looking dead-on at our prosecutor friends and asking, in front of judges, God, and everyone: "Would it kill 'ya to turn over the 3500 material a little earlier?" Like a stern mom admonishing her children, Susan challenged the room to elevate life balance over silly tradition. So it got me thinking. When did discovery in criminal litigation become such a clogged artery? Why do civil defendants get to depose and interrogate to their heart's delight while criminal defendants have to guess at the identities of victims and witness, even in cases lacking even the slightest hint of violence or danger?
And why did CJA lawyer Tony Ricco, who summed up on a trial in the hours before delivering his speech at Bruce's Memorial, confess to having felt so awkward, like a bad schoolboy, when he had to seek a couple of hours off his trial to attend his dear friend and colleague's funeral? What's up with that?
Has everyone in this criminal justice system forgotten that we make better advocates if we get more sleep and have more time for our families? Maybe we Clawsters should start demanding that the silly parts of this system get unsillified. If stuff can get done in more efficient ways, well, let's demand that it get done that way.
So, in my next trial case I'm invoking the Bruce McIntyre Memorial Rule: 3500 Reasonably In Advance of Trial. Prosecutors should have to give one reason why we shouldn't get 3500 material at least a week in advance. And that reason better be something more than just "that's how it's done." Life's too bloody short.
