Much of the decision-making is centered around whether and when to reveal NLS’s – “nasty little suprises” – to the prosecutor. Bennett characterizes NLS’s as “a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.”
A lawyer I used to work with was on his way to a felony jury trial, and was listening to a tape of an undercover drug buy that had been provided by the prosecution as a part of discovery. The day prior, the investigating officer had testified that he absolutely did not do something illegal (which the defendant had alleged he had done). This lawyer just happened to turn the tape over to side B while on his way to the courthouse, which was supposed to be blank. In the middle of side B, there was some audio. As he listened, he realized that the officer had committed the illegal act, and that unbeknownst to him, the microphone was on and recording. It seemed that likely the prosecutor and the officer were unaware that this was captured on the tape.
So upon arriving at the courthouse, he went to the prosecutor and said, if you want to continue with this trial, I have something that will end the career of this officer. He said, you only other choice is to immediately dismiss the case with prejudice. The prosecutor dismissed the case with prejudice. Did the prosecutor know about the missing audio on side B? Did he technically provide the exculpatory evidence all -the-while hoping it would not be discovered in the middle of side B? I don’t think so. If he or the officer knew about it and wanted it to remain unfound, they probably would just have erased it.
Anyways, it is interesting to see Bennett describe his mental process with regards to dealing with prosecutors – the good, the bad and the young. Much of what he describes I have observed in my own experience.
– John H. Bryan, West Virginia Attorney.