2016 - Investigative Summary 5

Discovery - Rule 16;
Failure to Comply with Court Order or Federal Rule;
Failure to Comply with U.S. Attorneys' Manual Provision

A DOJ attorney failed until the eve of trial to disclose admissions the victim had made approximately six months earlier that she and the defendant had engaged in consensual sexual relations before the defendant was charged with sexually abusing her. The defense moved to dismiss, claiming it was unprepared for trial because of the late disclosure. The court continued the trial and set a hearing on the motion to dismiss. On the date of the scheduled hearing, the government dismissed the sexual abuse charge in exchange for a guilty plea to a lesser charge of first-degree burglary. After self-reporting the late disclosure to OPR, the DOJ attorney resigned from the Department.

OPR conducted an investigation. The DOJ attorney told OPR that he intended to timely disclose the victim's admission that she had prior sexual encounters with the defendant. However, an initial report of interview by an agent detailing the admission contained inconsistent statements
by the victim that the DOJ attorney believed needed further clarification before disclosure, and the DOJ attorney instructed the agent to prepare a revised version. The defendant entered, but then withdrew, a guilty plea, and the DOJ attorney failed to notice until the eve of trial, after the deadline for disclosure had passed, that the agent never provided him the revised interview report.

OPR concluded that by failing to timely disclose evidence of the victim's prior sexual encounters with the defendant, as well as her inconsistent statements, the DOJ attorney committed professional misconduct by acting in reckless disregard of his obligations under Fed. R. Crim. P. 16, the court's scheduling order, and Section 9-5.001 of the U.S. Attorneys' Manual. 

OPR referred its findings to the PMRU, which concluded that the DOJ attorney exercised poor judgment, but did not engage in reckless professional misconduct, when he relied on the agent's submission of the final version of the report as the event that would trigger the DOJ attorney to make a disclosure to the defense.