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State v. Diprete5/1/1998
effect of a published versus unpublished order entered by this Court in disposing of an appellate proceeding before us.
The majority in its footnote response additionally states that in Rawlinson the "sole question before us at that time was whether the initial information had been dismissed with prejudice." That is not quite accurate. In fact, the sole question in that appeal was described by Rawlinson's appellate counsel as "this case raises the viability of dismissal as a discovery sanction." Indeed, the state in its Rawlinson prebriefing statement also recognized case dismissal as a discovery sanction as the centerpiece of Rawlinson's appeal.
The state's position at that time, however, regarding the authority of a trial Justice to dismiss a criminal prosecution, pretrial, as an appropriate Rule 16 discovery violation sanction, was completely contrary to the state's position in this case. I quote in pertinent part from the state's prebriefing statement in Rawlinson.
"In this case the defendant claims that a Superior Court Justice lacks the discretion to order non-prejudicial dismissal as a sanction for the State's failure to comply with discovery. The State submits that Rule 16 confers extremely broad discretion on the Justice and that the Judge in this case properly exercised that discretion.
"Absent a demonstrated abuse of discretion, this court on appeal will not overturn the ruling of the trial Justice. Verlaque, supra.
"The State agrees with the defendant's contention that there is little precedent with regard to the issue presented by this case. Nevertheless, an examination of the case law does reveal that a court has the discretionary power to order dismissal with or without prejudice, depending on the circumstances of the particular case. The United States Court of Appeals for the Fifth Circuit has held that, absent a showing of prejudice by the defendant, a with-prejudice dismissal is outside the power of the court. United States v. Campagnuolo, 592 F.2d 852, 865 (5th Cir. 1979).
"In a more recent case from the District of Maryland, the court found numerous acts of misconduct by the government and its agents. United States v. Omni International Corp., 634 F. Supp. 1414 (D. Md. 1986). The Omni case is a virtual catalogue of prosecutorial misconduct. The District Court found that during the preparation of the case, the prosecution and its agents had altered documents, given false testimony, and displayed an alarming lack of candor during colloquies with the court. On such a record, the court reasoned, dismissal of the indictment was an appropriate sanction for the government's abusive behavior. Because of the serious violations of the defendants' rights, the court reasoned that they should not be brought to trial on the tainted charges against them.
"In the instant case, defendant contends that dismissal for a discovery violation must always be with prejudice. Defendant thus seeks to limit the discretion conferred in Rule 16(i) by eliminating non-prejudicial dismissal as an available discovery sanction. In this case, however, the trial Justice declined to impose a sanction of dismissal with prejudice upon the State. In light of the extremely broad range or remedies available under Rule 16, the State suggests that defendant's position is unrealistic. Defendant theorizes that the State suffers nothing with a non-prejudicial dismissal, and that the sanction is therefore of little force. Defendant's position misses the mark for two reasons. First, discovery is not a game; it is a procedure for assuring an accurate and fair result at trial. McParlin, supra. The point of a sanction, therefore, is not to inflict injury on t
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