Wednesday, December 14, 2011

On posting the Cellmark report

I will soon post the Cellmark report, which a friend has gotten for me from the publicly available files of the U.S. Supreme Court.

Before doing so, though, I want to note an issue that I had to resolve before posting the report. After I announced my intention on this blog to post it, I was given pause by a call from the Illinois State’s Attorney’s Office, mentioning Illinois criminal discovery rules. I had been aware of the rules, but did not believe they posed a problem, because the report is publicly available. But the attorney – who was pleasant and professional, and explicitly not threatening – put another slant on the matter by suggesting that I needed to take the issue particularly seriously because I am an attorney on the case. It is not clear that I am really an attorney on the case, but I understand that perhaps I could be treated as such, given that I consulted with petitioner’s counsel in preparation of the case. And so I did indeed take the issue seriously, and sought advice from a partner at one of the best-regarded firms in Chicago. I resolved that if this attorney advised me that state law precluded me from posting the report, or even if he thought it was a close call, I would not do so. But it is not a close call.

The State’s Attorney mentioned Illinois Supreme Court Rule 415(c) and the comment to it. The Rule reads:
Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.
And here is the Comment:
Comment: Paragraph (c). If the materials to be provided were to become, in effect, matters of public availability once they had been turned over to counsel for the limited purposes which pretrial disclosures are designed to serve, the administration of criminal justice would likely be prejudiced. Accordingly, this paragraph establishes a mandatory requirement in every case that the material which an attorney receives shall remain in his exclusive custody. While he will undoubtedly have to show it to, or at least discuss it with, others, he is not permitted to furnish them with copies or let them take it from his office. It should be noted that this paragraph also applies to the State. Nothing in this paragraph should be interpreted to prevent counsel from having tests performed by experts on materials furnished by opposing counsel or from having experts examine reports received from opposing counsel. Tangible objects, such as guns, knives, clothing, not subject to duplication but furnished for purposes of testing, etc., should be returned to the furnishing party when such testing or inspection is completed. If not returned routinely the last phrase permits the court to so order, in addition to any other terms and conditions provided.
After due consideration, the attorney with whom I consulted and I simply do not believe that the Rule prevents me, even if I am considered an attorney on the case, from doing what anybody off the street (First Street, N.W., Washington, D.C., that is) can do – going to the office of the Supreme Court clerk and copying the report from the file of the case and then publishing it. The materials already have become “matters of public availability.” The report was not publicly available until the Court, over the objection of the State’s Attorney, decided that it should be lodged with the Court. But the Court did so decide, and now the report is public. And what I am posting is the actual report I received from the files of the United State Supreme Court.

I have taken my professional responsibility seriously in this matter, and I believe I am free to post the report.

One other point: In my prior post announcing my intention to post the report I suggested that the State’s Attorney’s Office resisted the proposal to lodge because seeing the report undermines points that have been made on their side of the case. The assistant who spoke to me insisted that the reasons cited in their letter of opposition were the real reasons. (That letter, by the way, did not mention confidentiality, nor did it suggest as an alternative possibility that if the report were to be lodged it should be done under seal.) So I want to emphasize that I did not intend to make any suggestion of impropriety. I do believe that it was against the litigation interest of the State’s Attorney for the Supreme Court to see the report, and I also believe it was obvious that the Court should see it. I do not believe that it is coincidental that petitioner’s counsel – also highly responsible and very aware of and conscientious about the strictures of Illinois discovery law – proposed lodging the report and the State’s Attorney opposed it.


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