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State v. Diprete5/1/1998
State v. Myers, 115 R.I. 583, 588, 350 A.2d 611, 613-14 (1976). We have long noted that procedural prejudice is inflicted upon a defendant when his or her defense counsel must proceed to trial unprepared because of the state's noncompliance with its Rule 16 obligations. State v. Brisson, 619 A.2d 1099, 1103 (R.I. 1993). In State v. DeAngelis, 658 A.2d 7 (R.I. 1995), we noted that the "'inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Id. at 12.
The trial Justice additionally noted that the defendants had been substantively prejudiced by the state's repeated and continuous refusal to comply with the trial court's discovery orders. The state's misconduct ultimately necessitated a lengthy thirty-two day hearing during which defense counsel were required to establish the exact nature and scope of the state's wrongdoing in order to protect their clients' right to a fair trial. During the course of that expensive and protracted hearing on remedial sanctions, defense counsel were required to satisfy the trial Justice of the materiality and relevance of the pretrial information that had been withheld by the state. In order to meet that burden, defense counsel were forced to reveal to the state's prosecutors virtually their entire trial strategy. Further, the prosecution gained the unfair advantage of previewing firsthand defense counsel's planned cross-examination of the state's witnesses. The majority places the blame for this prejudice at the feet of defense counsel, saying it resulted from defense counsels' "voluntary" action in seeking remedial sanctions in the first instance. Under that theory a defendant's attorney, believing that the state is withholding material exculpatory evidence, would have to choose between filing a motion to compel and requesting remedial sanctions or proceeding to trial woefully unprepared. No competent attorney would ever accept such a Hobson's choice, and there is no rule of criminal procedure that requires such a choice, despite the majority's unsupported statement that pretrial strategy is not beyond disclosure. See Super.R.Crim.P. 16(d). A criminal defense attorney's mental impressions as to how evidence relates to issues and defenses constitute opinion work product and are especially protected from disclosure by the work product privilege. United States v. Horn, 811 F.Supp. 739, 746 (D.N.H. 1992). In this case, I believe that the hearing on remedial sanctions, necessitated by the actions of the prosecution, permitted the state to intrude upon this privileged area and, therefore, significantly prejudiced the defendants.
Indeed I find it unusual that the majority would in effect seek to punish defense counsel for enforcing an order of the state's trial court. That, however, is precisely what the majority does when it blames defense counsel for the prejudice that resulted from the prosecution's illegal and unethical actions. Would the majority fault the unfortunate victim in a medical malpractice case for having elected to seek medical treatment or a bank for electing to have funds available on its premises that the robber could then steal?
What I believe the learned trial Justice found most disturbing and damaging of all, however, was the very real possibility that even as of the date of his decision, the defendants may not then have yet received all of the exculpatory materials that had been requested and to which they were entitled. The trial Justice actually found that defense counsel at that late time could still not be assured that the prosecution had laid all its cards on the table and was not persuaded by the state's protestations to the contrary because those same protestations had in the past, witho
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