On April 28, 2009, Judge Malloy issued his order denying the motion to dismiss the indictment for prosecutorial misconduct. You can view the order here Judge Molloy’s order. There is one passage I found particularly interesting. Judge Malloy states:
The size of the case, and the resulting disclosure obligation, is a condition of the government’s choosing. The constitution and the law do not yield when the government casts a wide net in the charging decision. The government resists the Defendants’ effort to tie the most recent discovery violation to the government’s earlier transgressions in this area, but the Court is not entirely willing to view the most recent episode in isolation. The government’s own argument blaming the scope of its disclosure duties conjures up the failures of the past. The history of this case suggests that the failure to disclose documents related to Locke is merely the latest manifestation of a systemic problem, i.e., that the Department of Justice charged a case larger than the one it prepared to prosecute.
Order, at 7 (emphasis added). Is anyone practicing criminal law surprised that the government would overcharge a case? Do you think the light bulb ever goes off at the USDOJ and they say “hey, wait a minute – can we prove all that?” Is anyone really overseeing the process? Are the days of the government winning by just indicting over?
Only time will tell.
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