the relationship and supervisory role here is far more distant and indirect than in Kyles, where a local prosecutor is dependent upon local police with whom he or she works regularly and in close proximity.
Adopting the lexicon of Justice Souter in Kyles, the situation as it exists under Jennings is like a ship captain anxious about tacking too close to the wind, but who must rely entirely on landbound compatriots to tell him the windspeed and directionals. Without ship's compass, radar or other instruments, the vessel is not seaworthy. If the information from shore proves insufficient, the mythical captain may suffer no more than the indignity of a rude dip in the water; a criminal defendant, on the other hand, has a great deal more at stake.
The government's argument that a rule requiring the AUSA personally to review personnel files would be unduly burdensome also must fail. There can be no question that such a rule would, in fact, be quite burdensome in cases as large and complex as the instant case. However, as an initial matter, there always will be some burden on the prosecutor, even under the Jennings approach. As the Court in Kyles put it, "the prosecution cannot be subject to any disclosure requirement without at some point having the responsibility to determine when it must act." Kyles, 115 S. Ct. at 1568. A thorough reading of Kyles should leave no doubt about where the burden of providing Brady, Bagley,6 and Giglio,
material lies, and that it is non-delegable. "The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles, 115 S. Ct. at 1567 (emphasis supplied). In the face of Justice Souter's unequivocal statements, it is difficult to see how Jennings holds up.
Of course, when the individual prosecutor ultimately is held responsible for turning over exculpatory material, it will always be the case that at some point that prosecutor will be burdened with reviewing materials and making a judgment call on what is and is not necessary to turn over. Id. Thus, the question is not whether the prosecution should be burdened -- under our constitution it bears that burden in order to vindicate fundamental due process rights. The question instead is whether protecting those rights warrants placing that duty solely on the person who is ultimately responsible and who is most intimately familiar with the facts of the case, or whether it can be delegated to others not even under his or her control. Contrary to Jennings, this court reads Kyles as holding that our constitution places the burden squarely on the prosecutor, not on agency clerks, functionaries and non-prosecuting attorneys who may have no trial experience, who have no knowledge of the facts and intricacies of the particular case, and who are three thousand miles away.
Furthermore, though the government protests that the burden of such a rule would be too great, it is the government, not the defendants, who choose what cases to bring and decide the breadth of the indictment and scope of the investigation. Having indicted a complex and burdensome case, they cannot be heard to complain that their own responsibilities are too burdensome. Further, the defendants cannot be forced to sacrifice their due process rights simply because it would be overly burdensome for the government to ensure them. When deciding the nature and the extent of charges to be brought, prosecutors must add to their calculations the attendant burden on themselves, and must include the fact that individual prosecutors (and their staffs) will be required to perform the Henthorn review.
For the foregoing reasons, the court concludes that Kyles effectively overrules Jennings. Accordingly, the court hereby GRANTS defendants' request that the AUSA (and his office) be required personally to review the personnel files of agents testifying at preliminary hearings or at trial and for whom the defendants request such material.
IT IS SO ORDERED.
Dated: AUG 18 1995
MARILYN HALL PATEL
United States District Judge