June 11 Session #9: A PSR Challenge

Since we’re already talking about the subject, the defense dives right into AE141, its motion on the Prudential Search Requests (PSR) process employed by prosecutors.  Al-Nashiri’s newest defense counsel, Capt. Daphne Jackson, doubts the PSR mechanism---or at least suspects that it’s being applied according to an improper legal standard.  Thus her request (which prosecutors rejected) to get a look at PSRs issued in Al-Nashiri’s case, any government responses, and a list of those contacted for PSR information.

Two principles underlie this motion, says Jackson.  The first is “garbage in, garbage out.”  What “garbage” does she have in mind?  The defense’s written motion suggests slackness on the prosecution’s part: the government fails to ascertain whether PSR responses are indeed relevant to defense requests.  Moreover, Jackson argues, it is not even clear what the government is looking for when they issue a PSR.  Thus Jackson desires to compare her own discovery requests with the search requests generated by prosecutors and then blasted throughout the government’s computer ether.  What if the government’s inquiries are significantly narrower than discovery requests crafted by Jackson and her colleagues?

So much for principle one.  Number two is mitigation, and nearly anything potentially mitigating should find its way into the defense’s hands.  The court quickly jumps in.  How is the absence of evidence a mitigating factor, Pohl wants to know. We are aware of facts out there that are mitigating to our client, Jackson responds.  And in light of them, we just want to see how the prosecution’s process works---it should be completely transparent. The standard by which the government is denying our PSR requests, she claims, doesn’t jibe with the more discovery-friendly standard laid down by commission rules and mitigation case law---which the prosecution interprets, wrongly, in exceedingly narrow fashion.  Among other things, the defense shouldn’t have to show that discovery is “necessary,” as prosecutors say.

Lockhart responds by emphasizing her starting premise----the government’s continuing obligation of discovery. Perhaps the defense is confused as to what the government requires of a defense discovery request. If the government, in applying the materiality standard, deems the evidence not material, then it will deny the defense's request. But if the defense disagrees and still believes that it is entitled to some particular document, then there’s a procedure for that: the the defense has only to justify its interest, and explain why it needs the item in question.  And speaking of justification, the prosecution very much has applied the proper standard in reviewing the defense’s discovery requests. The defense wants to be sure that the government’s PSRs are properly framed, Judge Pohl interrupts, and you, Lockhart, say that they are so.  Well if that is true, why shouldn’t you have to provide the PSRs to the defense?  The comparison seems harmless, he suggests.  Lockhart shifts to describing the contents of a PSR, and is interrupted by Judge Pohl.   Again he wonders aloud: would Lockhart like to testify as to the PSRs’ contents? Lockhart essentially balks, explaining that she here seeks only to rebut the defense’s claim that the government's prudential search net is too narrowly drawn. They don’t get to call that into question, according to Lockhart.  Bottom line: “The defense doesn’t get to check the government’s work.”

Jackson rises in reply, and cites an attachment to the defense motion.  Therein, the government refers to its ongoing obligation to turn over information shown to be relevant, material and necessary.  That’s wrong, and too cramped, in her view.  But as for whether the apparently wrong standard indeed is observed, well, the government, according to Jackson, says “trust us.”  That’s not enough.  We supply discovery requests to the prosecutors, she argues.  At the same time, Jackson says, we depend on prosecutors to use those requests in making searches of target agencies.  But we still don’t know how discovery requests compare to PSRs; we still don’t have confirmation that discovery-grabbing requests indeed have reached the relevant stakeholders.  At a minimum, a tally of who has received what, PSR-wise, would give the defense some comfort.  Jackson closes.