2016 Investigative Summary 10

Investigation of Alleged Discovery - Failure to Disclose Impeachment/Jencks Act Material

A DOJ component advised OPR that an experienced DOJ attorney had failed to disclose to the defense the grand jury testimony of a law  enforcement agent who had testified for the prosecution at trial regarding the same subject matter, as required by the Jencks Act, 18 U.S.C. § 3500, and Fed. R. Crim. P. 26.2. 

In a post-trial pleading, the DOJ attorney had explained to the court that he had not realized that he was required to disclose a witness' grand jury testimony pursuant to the Jencks Act and Rule 26.2 and that he thought grand jury secrecy rules prohibited such disclosures.

OPR conducted an investigation and concluded that the attorney, who retired from the Department shortly after being interviewed by OPR, violated the Jencks Act and Rule 26.2 by failing to disclose to the defense the transcript of the agent's grand jury testimony. OPR found that the attorney did not act intentionally in order to gain an unfair advantage at trial or for some other improper purpose.  

Nevertheless, OPR found the attorney committed professional misconduct when he acted in reckless disregard of his obligation to disclose the grand jury testimony, as required by the Jencks Act and Rule 26.2, as well as state bar rules, which required him to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

OPR concluded that, for any DOJ attorney—let alone one with significant experience- to be unaware that grand jury transcripts are witness statements for purposes of the Jencks Act and Rule 26.2, was objectively unreasonable under all the circumstances, and a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation.

OPR referred its findings to the PRMU, which upheld OPR's findings of professional misconduct and authorized OPR to refer its findings to the state bar. OPR referred its findings of professional misconduct to the appropriate state bar disciplinary authority.