2022 Investigative Summary 10

INVESTIGATION OF ALLEGED FAILURE TO COMPLY WITH DISCOVERY OBLIGATIONS AND FAILURE TO CORRECT MISLEADING TESTIMONY

An Assistant U.S. Attorney (AUSA) informed OPR about a court order declaring a mistrial because the government failed to timely disclose plea and cooperation agreements for a cooperating trial witness and failed to correct the witness’s testimony regarding benefits the witness expected to receive for the witness’s testimony. 

OPR concluded that the AUSA violated his discovery obligations when he failed to disclose to the defense the plea and cooperation agreements.  However, OPR concluded that under the highly unique circumstances of the case, the AUSA demonstrated poor judgment but did not engage in professional misconduct when failing to timely disclose the agreements and when failing to correct the witness’s testimony.  Rather, OPR’s investigation determined that the AUSA’s failures resulted from his significant misunderstanding of the applicable law and policies due to his litigation inexperience and lack of adequate assistance from an experienced AUSA, who served as co‑counsel on the case.

OPR further concluded that the experienced co-counsel in the case did not adequately assist the AUSA in accordance with USAO management’s expectations and did not adequately prepare for the trial, but that the co-counsel’s obligations as a second-chair attorney were not sufficiently clear and unambiguous to support a misconduct finding based on standards applied to supervisors.  OPR concluded that the co-counsel exercised poor judgment when failing to adequately assist the AUSA in accordance with USAO management’s expectations. 

One of the AUSAs resigned from the Department for reasons unrelated to OPR’s investigation.