2013 Investigative Summary 3

Investigation of Alleged Failure to Disclose Exculpatory Evidence

A district court criticized a DOJ attorney for failing to disclose to the defense prior to trial a statement of a co-defendant which purported to exculpate the lead defendant in a drug prosecution. The court declared a mistrial when the government belatedly disclosed the statement to the defense after the trial had commenced. The DOJ attorney self-reported the court’s criticism to OPR, and OPR conducted an investigation into the untimely disclosure of the statement.

During a period of protracted pretrial litigation, law enforcement agents briefly interviewed the co-defendant (then an uncharged target) when he appeared at their offices pursuant to a subpoena to provide handwriting exemplars and fingerprints. During the interview, the co-defendant said that the lead defendant was not present at a location where a large quantity of drugs was found, a statement which the agents knew to be false. The interview was quickly terminated, and one of the agents wrote a one-page memorandum summarizing the interview. The agent contemporaneously told the DOJ attorney what the co-defendant said, but did not provide the interview memorandum to the DOJ attorney. Subsequently, the DOJ attorney forgot about the co-defendant’s statement and did not disclose it to the defense.

At trial, after the first day of testimony, the DOJ attorney discovered the memorandum of the co-defendant’s interview in the agent’s file, and she immediately provided it to the defense. The district court, however, declared a mistrial the following day based on the DOJ attorney’s failure to provide the information in a timely manner.

Based upon its investigation, OPR concluded that the DOJ attorney did not violate Brady principles, the Federal Rules of Criminal Procedure, or state bar rules by her late disclosure of the statement, which she disclosed immediately upon finding it and in time for the defense to make effective use of it at trial.

OPR concluded, however, that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligations under multiple DOJ discovery policies regarding the pretrial review of investigative agency files -- policies designed to avoid the discovery lapse that led to the mistrial. OPR referred its findings to the PRMU, which upheld OPR’s findings and conclusions and directed that a formal letter of reprimand be issued to the DOJ attorney.