2016 Investigative Summary 1

Investigation of Alleged Misleading the Court; Failure to Comply with Discovery; Brady/Jencks Violation; Failure to Comply with Court Order;
Failure to Comply with DOJ Policy, Rules, Regulations; Failure to Keep Client Informed

A DOJ Attorney reported to OPR that in a drug conspiracy case involving multiple defendants, the court issued an order dismissing the indictment with prejudice based on a Brady/Giglio violation, a discovery violation, and a finding of prosecutorial misconduct. OPR initiated an inquiry, which it later converted to an investigation. OPR obtained and analyzed pleadings, pertinent documents, and e-mails. OPR requested and reviewed a written response from the DOJ Attorney, conducted witness interviews, and interviewed the DOJ Attorney. Based on those interviews, OPR gathered additional documents and requested and received a supplemental written response from the DOJ Attorney. 

Before obtaining the indictment, the DOJ Attorney learned, but did not disclose to the defense, that one of the defendants, who had agreed to cooperate and testify, was acting on behalf of the targets of another ongoing, covert investigation, and that the cooperating co-defendant had
been promised a favorable sentence recommendation in exchange for his cooperation in the ongoing investigation. In the midst of trial, during cross-examination of the cooperating co-defendant, the DOJ Attorney disclosed, for the first time, reports of interviews containing exculpatory information. In addition, the court found that the reports also contained Giglio information that could have been used by the defense to impeach the cooperating co-defendant.

When confronted with the failure to disclose this information, the DOJ Attorney falsely represented to the court that the prosecutor handling the ongoing investigation had asked him not to disclose the co-defendant's cooperation in the ongoing investigation because it would jeopardize the investigation. In dismissing the case with prejudice, the court took into consideration the DOJ attorney's repeated failure to comply with court orders to disclose confidential informant information, laboratory reports, and expert witness materials. Because of these numerous failures, the court had granted multiple extensions to comply with court-ordered deadlines, and it had repeatedly postponed the trial, causing an impermissible delay of the proceedings that could not be cured by a further continuance to permit the defense to investigate the Brady/Giglio information that was withheld from the defense until the midst of trial.

OPR concluded that the DOJ Attorney:

(1) committed intentional professional misconduct in violation of his Brady/Giglio obligations, when he knowingly and purposefully withheld Brady/Giglio information from the defense;

(2) committed intentional professional misconduct in violation of the court's orders directing the government to disclose to the defense all Brady/Giglio information, when he knowingly and purposefully withheld the information from the defense;

(3) committed intentional professional misconduct in violation of applicable state rules of professional conduct, when he knowingly and purposefully failed to timely disclose information to the defense that tended to negate guilt, conduct that also was prejudicial to the administration of justice;

(4) committed intentional professional misconduct in violation of Department policy when he knowingly and purposefully failed to timely disclose exculpatory and impeachment information to the defense;

(5) committed intentional professional misconduct in violation of applicable state rules of professional conduct, when he falsely stated to the court that he was asked not to disclose what a cooperating co-defendant told investigators about another, ongoing investigation;

(6) committed professional misconduct in violation of applicable state rules of professional conduct, when in reckless disregard of his obligation to act with reasonable diligence and promptness in representing his client, he repeatedly failed to comply with lawful discovery requests and court-ordered discovery deadlines;

(7) committed professional misconduct in violation of applicable state rules of professional conduct, when in reckless disregard of his obligation to keep his client reasonably informed about the status of the matter he was handling, he failed to keep his supervisors reasonably informed about the status of the prosecution to permit it to make informed decisions regarding the representation;

(8) committed professional misconduct in violation of applicable state rules of professional conduct, when in reckless disregard of his duty of fairness to an opposing party and counsel, he failed to make reasonably diligent efforts to comply with legally proper discovery requests by opposing parties.

Because the DOJ Attorney knowingly misrepresented to the court what he was told about the cooperating co-defendant and the targets of the other, ongoing investigation, he also committed intentional professional misconduct in violation of applicable state rules of professional conduct, which generally prohibits Attorneys from engaging in conduct involving misrepresentations, fraud, or deceit.

Given OPR's findings that the DOJ Attorney violated specific applicable state rules of professional conduct, a more specific provision dealing with candor to the court, OPR did not analyze in detail the applicability of the more general provisions of the state's rules of professional conduct. Likewise, because the DOJ Attorney's failure to act with reasonable diligence was prejudicial to the administration of justice, he also committed professional misconduct in reckless disregard of his obligations pursuant to applicable state rules of professional conduct.

OPR referred the matter to the PMRU.