2016 Investigative Summary 8

Investigation of Alleged Failure to Disclose Exculpatory Information; Violation of Defendant's Constitutional Right to a Speedy Trial;
Failure to Comply with Department Policy

A court found that a DOJ attorney failed to timely disclose to the defense forensic reports that included material, exculpatory information, and that delays resulting from the belated disclosure and two earlier mistrials deprived the defendants of their constitutional right to a speedy trial. When the attorney learned, shortly after the second mistrial, that he had not received or produced the reports at issue, he requested copies from the investigative agency that prepared them.

Although the agency promptly provided copies of the reports to the DOJ attorney, approximately four months passed before he provided the information to defense counsel, which was only five days before the third trial was scheduled to begin.

The court found that the information contained in the forensic report was exculpatory; that the delay in disclosing the report, which had been generated years earlier, was extreme and impermissible, and that the length of the delay created uncertainty as to what investigative leads might have been generated from the information had it been disclosed in a timely manner. As a sanction for the government's conduct, the court dismissed the indictment with prejudice. 

Based on the results of its investigation, OPR concluded that the attorney acted in reckless disregard of his obligations pursuant to Department policy, as set forth in the U.S. Attorneys' Manual § 9-5.001, to produce exculpatory information to the defense reasonably promptly after receiving it. OPR concluded that the attorney's conscious decision to not immediately produce the reports, or take any steps to ensure that he would do so promptly, was inexplicable and objectively unreasonable under the circumstances. OPR further concluded that the attorney exercised extremely poor judgment when he relied entirely and exclusively on case agents to determine which forensic tests should be conducted, and then to furnish him with the results of those tests. OPR noted that the attorney's "hands-off approach in dealing with the forensic analyses created an unacceptable risk that evidence or discoverable information could be overlooked.

OPR further concluded that the disclosure of the reports shortly before the third trial date did not violate the attorney's obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), or the applicable rules of professional conduct. OPR found no evidence that the attorney intentionally withheld favorable information from the defense, or that the belated disclosure of the forensic reports was part of a pattern of withholding discovery. Moreover, the information contained in the reports was not material to the outcome in light of the other evidence at trial, and the defendants' ability to make use of that information at trial was not meaningfully diminished as a result of the delayed disclosure. 

Finally, OPR examined the reasons for delay in the case, including the events that led the court to declare two mistrials, and concluded that, with the exception of the belated disclosure of forensic reports, the delays were not attributable to misconduct by the attorney. Accordingly, OPR concluded that the attorney's actions did not deprive the defendants of their constitutional right to a speedy trial. 

OPR referred its findings to the PMRU, which upheld OPR's finding that the attorney acted in reckless disregard of his obligations pursuant to Department policy, and issued a letter of reprimand to the DOJ attorney. The PMRU disagreed with OPR's conclusion that the attorney exercised poor judgment when he relied entirely on case agents to handle all aspects of forensic testing and to provide him with results of those tests, and therefore did not consider this finding in determining the appropriate discipline.

Because OPR's misconduct finding did not implicate state bar rules, the DOJ attorney's misconduct was not referred to the applicable state bar.