2023 Investigative Summary 6

INVESTIGATION OF ALLEGED FAILURE TO PROVIDE TIMELY DISCOVERY AND LACK OF CANDOR TO THE COURT AND OTHERS

An AUSA self-reported a court’s ruling granting the defendant a substantial reduction from the sentencing guidelines as a sanction for the AUSA’s failure to timely disclose impeachment material to the defense and lack of candor with defense counsel and the court. 

Based on its investigation, OPR concluded that the AUSA recklessly failed to provide the defense prior to trial with evidence that could have been used by the defense to impeach an essential government witness and knowingly failed to correct the witness’s false trial testimony.  OPR’s investigation showed that after trial but prior to sentencing, the AUSA received additional records containing exculpatory and impeachment information regarding the witness.  OPR concluded that although the additional records were inconsistent with the witness’s trial testimony and had been specifically requested by the defense, the AUSA intentionally failed to provide the defense with the impeachment evidence pertaining to the government witness prior to sentencing; knowingly misled defense counsel concerning the content of the records; and knowingly and intentionally made false or misleading statements, at two separate hearings, concerning the existence of the impeachment evidence contained in the records.  OPR also concluded that the AUSA intentionally misled OPR during its investigation.  

OPR further concluded that the AUSA did not violate her disclosure obligations with regard to the production of the complete criminal histories of two government witnesses, but rather exercised poor judgment by failing to re-run the criminal histories prior to the trial and failing to document her disclosures of criminal record information to the defense. 

OPR referred its findings to the Professional Misconduct Review Unit.  The subject resigned following the issuance of OPR’s report of investigation.  The PMRU subsequently upheld OPR’s findings and conclusions and authorized OPR to refer the matter to the appropriate state bar disciplinary authority, which OPR has done.