2013 Investigative Summary 14

Investigation of Alleged Failure to Disclose Impeachment and Jencks Act 
materials; Violation of Obligation to Supervise Attorneys

Before trial in an ongoing criminal case, a DOJ supervising attorney initiated a collateral investigation and directed two cooperating government witnesses to surreptitiously record their telephone conversations with possible witnesses. Although the investigation failed to materialize into criminal charges, the investigation came to light during the cross-examination of one of the cooperating witnesses at trial in the underlying criminal case.

The district court found that a supervising attorney did not have sufficient grounds to initiate the collateral investigation and did not properly supervise the investigation once it was underway. The district court also found that the supervising attorney and two DOJ line attorneys violated their obligations under Giglio and the Jencks Act when they failed to disclose to the defense materials relating to the collateral investigation, including a recording.

OPR conducted an investigation and concluded that although there were sufficient grounds to initiate the collateral investigation, the supervising attorney exercised poor judgment by initiating the investigation under the circumstances and that she acted in reckless disregard of her obligations by failing to notify senior DOJ supervising attorneys that she had initiated the investigation, and by failing to fulfill her disclosure obligations under Giglio and the Jencks Act. OPR concluded that the line attorneys acted in reckless disregard of their obligation under the Jencks Act by failing to disclose the recording and that the line attorneys exercised poor judgment in failing to locate and disclose investigative reports relating to the collateral investigation.

OPR referred its misconduct findings to the PMRU, which concluded that the supervising attorney did not engage in professional misconduct. The PMRU found that the supervising attorney was not supervising the case when the disclosure violations occurred. The PMRU credited the supervising attorney’s assertion that she believed that she had notified a senior supervising attorney of the collateral investigation, but concluded that the supervising attorney exercised poor judgment because she failed to fully inform the senior supervising attorney of the collateral investigation.

The PMRU also concluded that the failure of the two line prosecutors to disclose the recording did not constitute professional misconduct. The PMRU found that the two line attorneys were walled off from the collateral investigation and that although they knew the recording existed, they were unaware that it contained discoverable material. The PMRU concluded, however, that the two line attorneys exercised poor judgment by not obtaining additional information about the recording from either the supervising attorney or the filter team attorney assigned to the collateral investigation.

The PMRU referred its poor judgment findings against the supervising and line attorneys to the component to address in a management context.