“The Ethical Swamp: Learning From The Experience Of Our Colleagues...” Robin R. Taylor, AUSA, EDCA Sean B. Hoar, AUSA, OR

Our job – to do the right thing “Your job as Assistant U.S. Attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision you make, to do the right thing.” –Attorney General Eric Holder

Navigating the dangerous waters of disclosure and discovery obligations Navigating the dangerous waters of disclosure and discovery obligations Rules/statutes: F.R.Crim.P. 16, 26.2, 18 U.S.C.A. § 3500 Cases: Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 504 U.S. 150 (1972); United States v. Henthorn, 931 F.2d 29 (9 th Cir. 1991) Examples: –United States v. Stevens –United States v. Chapman, 524 F.3d 1073 (9 th Cir. 2008) –United States v. Jernigan, 492 F.3d 1050 (9 th Cir. 2007) (en banc) –United States v. Price, -- F.3d --, 2009 WL (9 th Cir. 2009) –United States v. Chang Da Liu, 538 F.3d 1078 (9 th Cir. 2008) –United States v. Jones, 2009 WL (D. Mass. 2009) Report of USDOJ Criminal Discovery and Case Management Working Group

F.R.Crim.P. 16 Rule 16 imposes a continuing duty to disclose five types of information: –(1) the defendant’s relevant oral and written statements –(2) the defendant’s criminal record –(3) documents and tangible objects material to the preparation of the defense within the government’s possession, custody or control that it intends to introduce in its case-in-chief –(4) results and reports of tests or examinations, and –(5) the qualifications of expert witnesses and summaries of anticipated testimony

F.R.Crim.P and 18 U.S.C (The Jencks Act) Rule 26.2 and 18 U.S.C govern the manner in which witness statements must be disclosed and mandates sanctions if such statements are not disclosed –The sanctions include striking of testimony and/or mistrial if the offender is government

Brady/Giglio Brady v. Maryland, 373 U.S. 83 (1963) –all exculpatory evidence, material to guilt or punishment, must be produced Giglio v. United States, 405 U.S. 150 (1972), and United States v. Henthorn, 931 F.2d 29 (9 th Cir. 1991) –impeachment evidence of government witnesses, including law enforcement personnel, must be produced

DOJ Policy USAM (C)(1) –Obligates AUSAs to disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense –This must be disclosed regardless of whether AUSA believes information will make the difference between conviction and acquittal of the defendant for a charged crime

DOJ Policy USAM (C)(1) –Obligates AUSAs to disclose information that either casts a substantial doubt upon the accuracy of any evidence –including but not limited to witness testimony –the AUSA intends to rely on to prove an element of any crime charged or might have a significant bearing on the admissibility of prosecution evidence –This must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant

U.S. v. Stevens October 27, 2008: guilty verdicts December 5, 2008: D memo for new trial which alleged that the government –knowingly presented false evidence –concealed and manufactured information –withheld critical evidence and sprung it on the defense at trial –presented false testimony of critical witness (Mr. Allen)

U.S. v. Stevens January 14, 2009: FBI Agent Chad Joy’s “whistleblower” complaint is filed which alleged –variety of inappropriate actions by case agent Mary Beth Kepner including that she redacted Brady/Jencks material –that DOJ trial attorney Nick Marsh intentionally obstructed witness availability for trial

U.S. v. Stevens January 16, 2009 –Government opposes new trial February 13, 2009 –Four prosecutors held in contempt April 1, 2009 –Motion of United States to set aside verdicts and dismiss indictment with prejudice April 7, 2009 –Convictions dismissed

U.S. v. Chapman January 23, 2006 (one day prior to trial) –AUSA announced case agent would testify although he was not on witness list and no Jencks material had been disclosed February 3 & 6, 2006 –AUSA repeatedly elicits testimony from witnesses about prior convictions that have not been disclosed

U.S. v. Chapman February 7, 2006 –D attorney shows court 650 pages that have just been discovered, including conviction records for witnesses that have already testified –AUSA claims but cannot show information previously disclosed –Court declares mistrial

U.S. v. Jernigan D convicted of bank robbery. While in custody awaiting trial, two more banks are robbed by D who matched D’s description. AUSA failed to relay this info to D. –Evidence against D circumstantial –Since case turned entirely on eye witness testimony, presence of similar looking robber would “substantially reduce or destroy the value of eyewitness testimony.” –Conviction reversed

U.S. v. Price D convicted of being felon in possession of firearm. –Evidence against D circumstantial –Best evidence was from eye witness whose full criminal history was not disclosed to D –Court held that AUSA failed in his duty to learn of any favorable evidence known to others acting on behalf of the government, including police –Denial of new trial reversed and remanded

U.S. v. Chang Da Liu D Zheng and Liu found guilty of sex trafficking crimes. Two witnesses testified they were no longer working as prostitutes. AUSA learned this was false and disclosed info to defense. –No prosecutorial misconduct because AUSA disclosed false testimony and defense was able to use it as impeachment evidence

U.S. v. Jones D charged with being felon in possession of firearm and filed motion to suppress alleging no reasonable suspicion to justify search. Boston PD Officer Cooley falsely testified at suppression hearing that he had justification to stop Jones. –Cooley told AUSA multiple times he did not recognize Jones (i.e. no justification) –AUSA failed to disclose information –Sanctions pending...

Discovery best practices Primary principle –AUSA is responsible for overseeing the discovery gathering process –While certain aspects of process may be delegated, AUSA is ultimately responsible for final determination of what is produced –If mistake is made, AUSA will be held accountable...

Discovery best practices General principles –Begin organizing discovery early Bates stamp and maintain discovery log –View discovery obligations broadly –Provide witness interviews prior to trial both testifying and non-testifying witnesses allow defense adequate time to investigate –Avoid using to communicate substantive case information but if you do, save it, store it and disclose it

Discovery best practices Brady/Giglio discovery –Disclose evidence favorable to D that is material either to guilt or punishment –AUSA must actively seek all exculpatory and impeachment material from everyone on the “prosecution team” All agents, LEOs, task force members, their agencies, and any other entity that may have relevant information

Discovery best practices Brady/Giglio discovery –What to review Investigative agency’s entire investigative file Confidential informant, witness files All evidence gathered during investigation Documents and evidence gathered by civil enforcement agencies Substantive s Potential Giglio material for all witnesses Witness interviews, including rough notes (of AUSA and agents...) Evidence obtained by victim/witness personnel

Discovery best practices Brady/Giglio discovery –When to produce it? Promptly. –How to produce it? Redact personal, identifying info Redact names of child victims and witnesses Consider whether need for protective order exists Consult with supervisor if questions exist Remember that child pornography cannot be copied or duplicated, but may only be made available for inspection

Our job – to do the right thing “Your job as Assistant U.S. Attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision you make, to do the right thing.” –Attorney General Eric Holder.