In the past two months, four highly experienced federal judges from districts around the country have issued a series of scathing opinions finding that federal prosecutors engaged in repeated, egregious violations of statutory and constitutional discovery obligations. In each case, the judges imposed severe sanctions against the government ranging from sizeable monetary penalties, to harsh curative instructions to the jury and, in one case, to the initiation of criminal contempt proceedings against the six prosecutors. In addition, earlier this month the Department of Justice filed motions in two cases pending before the United States Court of Appeals for the Ninth Circuit confessing violations of its Brady obligations in the prosecution of those cases and requesting that the cases be remanded to the district court and that the defendants be released from custody on personal recognizance. Even for those who have become somewhat jaded over the years by disputes with the government over discovery requirements and by the frustrated efforts to broaden the statutory discovery obligations under Fed. R. Crim. P. Rule 16, these recent cases constitute shocking examples of prosecutorial arrogance, willful misconduct, and inexcusable negligence affecting the fundamental constitutional rights of the defendants. In the wake of these decisions, it is important to ask why such fundamental violations are occurring now, even in very high-profile cases staffed by senior federal prosecutors. It is also imperative to consider what steps defense counsel can take in the short term to protect defendants from the substantial legal risks created by this pattern of unethical conduct.
Serious Violations
United States v. Stevens (D.D.C.). At the close of the trial of United States Senator Ted Stevens (R. Alaska) for alleged false statement violations related to Stevens' financial disclosure forms, District Court Judge Emmet Sullivan denied the defense motion for a new trial that was premised in part on the government's failure to comply with its statutory and constitutional discovery obligations. Despite these violations, Judge Sullivan denied the defense motion for a mistrial and permitted the case to go to the jury. On October 27, 2008, the jury convicted Stevens on all counts. Less than two weeks later, Stevens lost his bid for re-election to the United States Senate by fewer than 4,000 votes.
Following the trial, an FBI agent filed a complaint with the Office of Professional Responsibility (OPR) of the Department of Justice alleging that the prosecutors: 1) schemed to relocate a government witness, who had been subpoenaed by both sides, to avoid having the witness testify at trial; 2) intentionally redacted exculpatory information from a document provided to the defense; and 3) deliberately concealed other exculpatory information from the defense, including Giglio evidence relevant to the credibility of the government's star witness. When the prosecution team failed to comply with an order requiring production of documents regarding the agent's complaint, Judge Sullivan found the prosecution team and their supervisor to be in contempt. Attorney General Holder then removed the original prosecutors from the case, and, shortly thereafter, the government filed a motion confessing error in connection with the discovery violations and asking the court to dismiss the indictment with prejudice. The motion to dismiss with prejudice was granted. The following day, Judge Sullivan entered an order appointing independent counsel to investigate and prosecute criminal contempt proceedings against the five members of the prosecution trial team and their supervisor, the Chief of the Public Integrity Section.
United States v. Kohring and United States v. Kott (9th Cir.). On June 4, 2009, the Department of Justice filed consented motions in two cases on appeal seeking the remand of the cases to the district court and requesting the immediate release of the appellants on personal recognizance. As a basis for the motions, the government represented that it had uncovered information that should have been, but was not, disclosed to the appellants prior to trial. The Kohring and Kott cases were prosecuted by the same prosecution team that handled the Stevens prosecution.
United States v. Jones (D. Mass.). Chief Judge Mark Wolf determined during a suppression hearing that the prosecutor had failed to disclose her notes from an interview with the government's lead law enforcement witness that contained multiple prior inconsistent statements of the witness. The court declined to dismiss the case, but, in an extraordinary memorandum and order, it chronicled the "enduring problems" federal prosecutors in the District of Massachusetts have had over the years in discharging their obligation to disclose exculpatory evidence to criminal defendants. The court credited the explanation offered by the government that the failure to disclose the prosecutor's notes in this case was a "mistake," rather than an intentional effort to conceal exculpatory evidence, and decided to defer a final decision on sanctions for six months.
Chief Judge Wolf concluded, though, that both the deliberate and the inadvertent violations of Brady discovery obligations were having "a powerful impact on individuals entitled to Due Process and a cancerous effect on the administration of justice." Based on these findings, Chief Judge Wolf ordered that an educational program concerning discovery in criminal cases would be held in the fall of 2009 involving judges, the Federal Public Defender, and the U.S. Attorney's Office. The court's order makes clear that it expects the U.S. Attorney to require every Assistant U.S. Attorney who handles criminal cases in the District of Massachusetts to attend the training program.
United States v. W.R. Grace (D. Mt.). In a major environmental criminal prosecution of a mine operator and five senior company executives for violations of the knowing endangerment provisions of the Clean Air Act and a criminal conspiracy spanning 26 years, Chief Judge Donald Molloy repeatedly criticized the prosecutors for failing to honor their statutory and constitutional discovery obligations. At trial, following the testimony of the government's star witness, the court suspended the witness' testimony after it came to light that the prosecutors had failed to disclose critical Brady and Giglio evidence to the defense, including the witness' email exchanges with the case agent that reflected the witness's strong bias against the defense and the full record of the witness's immunity negotiations with the prosecutors. Chief Judge Molloy issued an order in which he concluded that this latest discovery violation was not the result of "bad faith," but was part of a pattern of "poor planning and incompetence" by the prosecution team. The court recalled the witness and permitted defense counsel to cross-examine the witness on his meetings with the government, his bias against the defendants, and his immunity status with the government. The court also prohibited the government from conducting any re-direct examination, struck the witness's testimony with respect to one individual defendant, and gave a strongly worded cautionary instruction to the jury explaining that the sanction was imposed because of the government's "inexcusable dereliction of duty" in suppressing or withholding evidence pertinent to the witness' credibility.
At the conclusion of the trial, the jury returned not guilty verdicts as to each defendant on all counts.
United States v. Shaygan (S.D. Fla.). In ruling on a Hyde Amendment motion following the physician-defendant's acquittal on 141 counts in a "pill mill" prosecution, District Judge Alan Gold granted full monetary relief to the defendant and ordered the United States to pay attorney's fees and litigation expenses in excess of $600,000. The court also made a series of factual findings that the two trial prosecutors and their supervisor had acted in bad faith by filing a punitive superseding indictment, initiating a collateral investigation of witness tampering based on unfounded allegations, and suppressing impeachment information about the roles of key government witnesses in the collateral investigation. Judge Gold concluded that "[t]hese were conscious and deliberate wrongs that arose from the prosecutors' moral obliquity and egregious departures from the ethical standards to which prosecutors are held." A public reprimand was issued against the three Assistant U.S. Attorneys responsible for these violations. The court also made a referral to the disciplinary committee of the prosecutors' bar organizations, directed the U.S. Attorney's Office to implement procedures to enhance supervision of collateral investigations, and reserved a decision on additional sanctions against the trial prosecutors pending completion of OPR's investigation.
Causes of Violations
These serious breaches of constitutional, statutory, and ethical duties were not the work of rogue prosecutors or the innocent mistakes of inexperienced newcomers to the Department of Justice. In most of these cases is appears that, despite many years of experience and training, the line prosecutors appeared to have a fundamental lack of understanding regarding their obligation to search for and to produce exculpatory information to the defense. It is even more alarming to note that, in many of the cases mentioned, the prosecutors' front line supervisors also were directly involved in the pattern of conduct that led to the violations and they too failed to detect or correct the violations. This failure of supervisory oversight is starkly illustrated by the fact that a review of the discovery records in the Stevens, Kohring, and Kott cases over the past few weeks by the new management team at the Department of Justice has readily uncovered serious discovery violations by the prosecution team that handled all three cases and has required the government to confess error after guilty verdicts were obtained in each case, two of the defendants were incarcerated, and the third was defeated in a close re-election bid.
High-profile cases and those involving a broad scope of charges, such as the Stevens and Grace cases, create additional pressures on prosecutors that both can lead to failures to honor basic discovery obligations and also magnify the impact of those errors. These conditions can arise when such a case is brought quickly to trial, such as Stevens, or when, as in the Grace case, the shear scope of the prosecution appears to overwhelm the ability of the trial prosecutors to effectively manage their discovery responsibilities.
Recommended Protective Measures
In response to these risks, defense counsel should be more proactive in seeking to uncover and gain access to exculpatory information. Counsel should routinely request the court to enter customized discovery orders with specific checklists of discovery items tailored to the facts and anticipated witnesses of the case.
Counsel also should consider requesting the court to require a personal certification from the prosecutor verifying that he/she has performed the requisite searches, reviewed the material identified, and produced all required information.
The cases also highlight the importance of renewing discovery demands with specificity at all key stages of the prosecution. The renewal of a discovery demand for exculpatory evidence and impeachment information is perhaps most important immediately following the direct testimony of a key government witness either at a pre-trial hearing or at trial. Those are the junctures at which the evidentiary significance of the witness's testimony is crystallized and the need for full compliance with the government's discovery obligations is sharply highlighted.
Finally, as illustrated in several of the cases mentioned, in camera review of potentially discoverable material concerning key government witnesses can play a critical role in uncovering discoverable material. Counsel should carefully consider the frequency and timing of such requests, but the cases confirm that the objective perspective of the court is sometimes needed to ensure compliance with even fundamental discovery requirements.
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