“The Ethical Swamp: Learning From The Experience Of Our Colleagues...” Robin R. Taylor, AUSA, EDCA Sean B. Hoar, AUSA, OR.

““The Ethical Swamp: Learning The Ethical Swamp: Learning From The Experience Of Our From The Experience Of Our

Colleagues . . .”Colleagues . . .”

Robin R. Taylor, AUSA, EDCARobin R. Taylor, AUSA, EDCA

Sean B. Hoar, AUSA, ORSean B. Hoar, AUSA, OR

Our job – to do the right thingOur job – to do the right thing

““Your job as Assistant U.S. Attorneys is Your job as Assistant U.S. Attorneys is not to convict people. Your job is not to not to convict people. Your job is not to win cases. Your job is to do justice. Your win cases. Your job is to do justice. Your job is in every case, every decision you job is in every case, every decision you make, to do the right thing.” make, to do the right thing.” – Attorney General Eric HolderAttorney General Eric Holder

Navigating the dangerous waters of Navigating the dangerous waters of disclosure and discovery obligationsdisclosure and discovery obligations

Rules/statutes: Rules/statutes: F.R.Crim.P. 16, 26.2,F.R.Crim.P. 16, 26.2, 18 U.S.C.A. § 3500 18 U.S.C.A. § 3500

Cases: Cases: Brady v. MarylandBrady v. Maryland, 373 U.S. 83 (1963); , 373 U.S. 83 (1963); Giglio v. United Giglio v. United StatesStates, 504 U.S. 150 (1972); , 504 U.S. 150 (1972); United States v. HenthornUnited States v. Henthorn, 931 F.2d 29 , 931 F.2d 29 (9(9thth Cir. 1991) Cir. 1991)

Examples:Examples:– United States v. StevensUnited States v. Stevens– United States v. ChapmanUnited States v. Chapman, 524 F.3d 1073 (9, 524 F.3d 1073 (9thth Cir. 2008) Cir. 2008)– United States v. JerniganUnited States v. Jernigan, 492 F.3d 1050 (9, 492 F.3d 1050 (9thth Cir. 2007) (en banc) Cir. 2007) (en banc)– United States v. PriceUnited States v. Price, -- F.3d --, 2009 WL 1408117 (9, -- F.3d --, 2009 WL 1408117 (9thth Cir. 2009) Cir. 2009)– United States v. Chang Da LiuUnited States v. Chang Da Liu, 538 F.3d 1078 (9, 538 F.3d 1078 (9thth Cir. 2008) Cir. 2008)– United States v. JonesUnited States v. Jones, 2009 WL 151587 (D. Mass. 2009), 2009 WL 151587 (D. Mass. 2009)

Report of USDOJ Criminal Discovery and Case Report of USDOJ Criminal Discovery and Case Management Working GroupManagement Working Group

F.R.Crim.P. 16F.R.Crim.P. 16Rule 16 imposes a continuing duty to disclose Rule 16 imposes a continuing duty to disclose five types of information:five types of information:– (1) the defendant’s relevant oral and written (1) the defendant’s relevant oral and written

statementsstatements– (2) the defendant’s criminal record(2) the defendant’s criminal record– (3) documents and tangible objects (3) documents and tangible objects

material to the preparation of the defense material to the preparation of the defense

within the government’s possession, custody or control within the government’s possession, custody or control

that it intends to introduce in its case-in-chief that it intends to introduce in its case-in-chief

– (4) results and reports of tests or examinations, and (4) results and reports of tests or examinations, and – (5) the qualifications of expert witnesses and (5) the qualifications of expert witnesses and

summaries of anticipated testimonysummaries of anticipated testimony

F.R.Crim.P. 26.2 andF.R.Crim.P. 26.2 and18 U.S.C. 3500 (The Jencks Act)18 U.S.C. 3500 (The Jencks Act)

Rule 26.2 and 18 U.S.C. 3500 govern the Rule 26.2 and 18 U.S.C. 3500 govern the manner in which witness statements must manner in which witness statements must be disclosed and mandates sanctions if be disclosed and mandates sanctions if such statements are not disclosedsuch statements are not disclosed– The sanctions include striking of testimony The sanctions include striking of testimony

and/or mistrial if the offender is governmentand/or mistrial if the offender is government

Brady/GiglioBrady/Giglio

Brady v. MarylandBrady v. Maryland, 373 U.S. 83 (1963), 373 U.S. 83 (1963)– all exculpatory evidence, material to guilt or all exculpatory evidence, material to guilt or

punishment, must be producedpunishment, must be produced

Giglio v. United StatesGiglio v. United States, 405 U.S. 150 , 405 U.S. 150 (1972), and(1972), and United States v. Henthorn United States v. Henthorn, , 931 F.2d 29 (9931 F.2d 29 (9thth Cir. 1991) Cir. 1991)– impeachment evidence of government impeachment evidence of government

witnesses, including law enforcement witnesses, including law enforcement personnel, must be producedpersonnel, must be produced

DOJ PolicyDOJ Policy

USAM 9-5.001(C)(1)USAM 9-5.001(C)(1)– Obligates AUSAs to disclose information Obligates AUSAs to disclose information

that is inconsistent with any element of any crime that is inconsistent with any element of any crime charged against the defendant charged against the defendant

or that establishes a recognized affirmative or that establishes a recognized affirmative defensedefense

– This must be disclosed regardless of whether This must be disclosed regardless of whether AUSA believes information will make the AUSA believes information will make the difference between conviction and acquittal of difference between conviction and acquittal of the defendant for a charged crimethe defendant for a charged crime

DOJ PolicyDOJ PolicyUSAM 9-5.001(C)(1)USAM 9-5.001(C)(1)– Obligates AUSAs to disclose information thatObligates AUSAs to disclose information that

either casts a substantial doubt upon the accuracy either casts a substantial doubt upon the accuracy of any evidenceof any evidence

– including but not limited to witness testimony including but not limited to witness testimony – the AUSA intends to rely on to prove an element of any the AUSA intends to rely on to prove an element of any

crime chargedcrime charged

or might have a significant bearing on the or might have a significant bearing on the admissibility of prosecution evidenceadmissibility of prosecution evidence

– This must be disclosed regardless of whether This must be disclosed regardless of whether it is likely to make the difference between it is likely to make the difference between conviction and acquittal of the defendantconviction and acquittal of the defendant

U.S. v. StevensU.S. v. Stevens

October 27, 2008: guilty verdictsOctober 27, 2008: guilty verdicts

December 5, 2008: D memo for new trial December 5, 2008: D memo for new trial which alleged that the governmentwhich alleged that the government– knowingly presented false evidenceknowingly presented false evidence– concealed and manufactured informationconcealed and manufactured information– withheld critical evidence and sprung it on the withheld critical evidence and sprung it on the

defense at trialdefense at trial– presented false testimony of critical witness presented false testimony of critical witness

(Mr. Allen)(Mr. Allen)

U.S. v. StevensU.S. v. Stevens

January 14, 2009: FBI Agent Chad Joy’s January 14, 2009: FBI Agent Chad Joy’s “whistleblower” complaint is filed which “whistleblower” complaint is filed which allegedalleged– variety of inappropriate actions by case agent variety of inappropriate actions by case agent

Mary Beth Kepner including that she redacted Mary Beth Kepner including that she redacted Brady/JencksBrady/Jencks material material

– that DOJ trial attorney Nick Marsh that DOJ trial attorney Nick Marsh intentionally obstructed witness availability for intentionally obstructed witness availability for trialtrial

U.S. v. StevensU.S. v. Stevens

January 16, 2009January 16, 2009– Government opposes new trialGovernment opposes new trial

February 13, 2009February 13, 2009– Four prosecutors held in contemptFour prosecutors held in contempt

April 1, 2009April 1, 2009– Motion of United States to set aside verdicts Motion of United States to set aside verdicts

and dismiss indictment with prejudiceand dismiss indictment with prejudice

April 7, 2009April 7, 2009– Convictions dismissedConvictions dismissed

U.S. v. ChapmanU.S. v. Chapman

January 23, 2006 (one day prior to trial)January 23, 2006 (one day prior to trial)– AUSA announced case agent would testify AUSA announced case agent would testify

although he was not on witness list and no although he was not on witness list and no JencksJencks material had been disclosed material had been disclosed

February 3 & 6, 2006February 3 & 6, 2006– AUSA repeatedly elicits testimony from AUSA repeatedly elicits testimony from

witnesses about prior convictions that have witnesses about prior convictions that have not been disclosednot been disclosed

U.S. v. ChapmanU.S. v. Chapman

February 7, 2006February 7, 2006– D attorney shows court 650 pages that have D attorney shows court 650 pages that have

just been discovered, including conviction just been discovered, including conviction records for witnesses that have already records for witnesses that have already testifiedtestified

– AUSA claims but cannot show information AUSA claims but cannot show information previously disclosedpreviously disclosed

– Court declares mistrialCourt declares mistrial

U.S. v. JerniganU.S. v. JerniganD convicted of bank robbery. While in D convicted of bank robbery. While in custody awaiting trial, two more banks are custody awaiting trial, two more banks are robbed by D who matched D’s description. robbed by D who matched D’s description. AUSA failed to relay this info to D.AUSA failed to relay this info to D.– Evidence against D circumstantialEvidence against D circumstantial– Since case turned entirely on eye witness Since case turned entirely on eye witness

testimony, presence of similar looking robber testimony, presence of similar looking robber would “substantially reduce or destroy the value would “substantially reduce or destroy the value of eyewitness testimony.” of eyewitness testimony.”

– Conviction reversedConviction reversed

U.S. v. PriceU.S. v. PriceD convicted of being felon in possession of D convicted of being felon in possession of firearm. firearm. – Evidence against D circumstantialEvidence against D circumstantial– Best evidence was from eye witness whose full Best evidence was from eye witness whose full

criminal history was not disclosed to Dcriminal history was not disclosed to D– Court held that AUSA failed in his duty to learn Court held that AUSA failed in his duty to learn

of any favorable evidence known to others of any favorable evidence known to others acting on behalf of the government, including acting on behalf of the government, including policepolice

– Denial of new trial reversed and remandedDenial of new trial reversed and remanded

U.S. v. Chang Da LiuU.S. v. Chang Da Liu

D Zheng and Liu found guilty of sex D Zheng and Liu found guilty of sex trafficking crimes. Two witnesses testified trafficking crimes. Two witnesses testified they were no longer working as they were no longer working as prostitutes. AUSA learned this was false prostitutes. AUSA learned this was false and disclosed info to defense.and disclosed info to defense.– No prosecutorial misconduct because AUSA No prosecutorial misconduct because AUSA

disclosed false testimony and defense was disclosed false testimony and defense was able to use it as impeachment evidenceable to use it as impeachment evidence

U.S. v. JonesU.S. v. JonesD charged with being felon in possession of D charged with being felon in possession of firearm and filed motion to suppress alleging firearm and filed motion to suppress alleging no reasonable suspicion to justify search. no reasonable suspicion to justify search. Boston PD Officer Cooley falsely testified at Boston PD Officer Cooley falsely testified at suppression hearing that he had justification suppression hearing that he had justification to stop Jones.to stop Jones.– Cooley told AUSA multiple times he did not Cooley told AUSA multiple times he did not

recognize Jones (i.e. no justification)recognize Jones (i.e. no justification)– AUSA failed to disclose informationAUSA failed to disclose information– Sanctions pending . . .Sanctions pending . . .

Discovery best practicesDiscovery best practices

Primary principlePrimary principle– AUSA is responsible for overseeing the AUSA is responsible for overseeing the

discovery gathering processdiscovery gathering process– While certain aspects of process may be While certain aspects of process may be

delegated, AUSA is ultimately responsible for delegated, AUSA is ultimately responsible for final determination of what is producedfinal determination of what is produced

– If mistake is made, AUSA will be held If mistake is made, AUSA will be held accountable . . .accountable . . .

Discovery best practicesDiscovery best practices

General principlesGeneral principles– Begin organizing discovery earlyBegin organizing discovery early

Bates stamp and maintain discovery logBates stamp and maintain discovery log

– View discovery obligations broadlyView discovery obligations broadly– Provide witness interviews prior to trialProvide witness interviews prior to trial

both testifying and non-testifying witnesses both testifying and non-testifying witnesses

allow defense adequate time to investigate allow defense adequate time to investigate

– Avoid using e-mail to communicate substantive Avoid using e-mail to communicate substantive case informationcase information

but if you do, save it, store it and disclose itbut if you do, save it, store it and disclose it

Discovery best practicesDiscovery best practices

Brady/GiglioBrady/Giglio discovery discovery– Disclose evidence favorable to D that is Disclose evidence favorable to D that is

material either to guilt or punishmentmaterial either to guilt or punishment– AUSA must actively seek all exculpatory and AUSA must actively seek all exculpatory and

impeachment material from everyone on the impeachment material from everyone on the “prosecution team”“prosecution team”

All agents, LEOs, task force members, their All agents, LEOs, task force members, their agencies, and any other entity that may have agencies, and any other entity that may have relevant informationrelevant information

Discovery best practicesDiscovery best practicesBrady/GiglioBrady/Giglio discovery discovery– What to reviewWhat to review

Investigative agency’s entire investigative fileInvestigative agency’s entire investigative file

Confidential informant, witness filesConfidential informant, witness files

All evidence gathered during investigationAll evidence gathered during investigation

Documents and evidence gathered by civil enforcement Documents and evidence gathered by civil enforcement agenciesagencies

Substantive e-mailsSubstantive e-mails

Potential Potential GiglioGiglio material for all witnesses material for all witnesses

Witness interviews, including rough notes (of AUSA and Witness interviews, including rough notes (of AUSA and agents . . .)agents . . .)

Evidence obtained by victim/witness personnelEvidence obtained by victim/witness personnel

Discovery best practicesDiscovery best practices

Brady/GiglioBrady/Giglio discovery discovery– When to produce it? Promptly.When to produce it? Promptly.– How to produce it?How to produce it?

Redact personal, identifying infoRedact personal, identifying info

Redact names of child victims and witnessesRedact names of child victims and witnesses

Consider whether need for protective order existsConsider whether need for protective order exists

Consult with supervisor if questions existConsult with supervisor if questions exist

Remember that child pornography cannot be Remember that child pornography cannot be copied or duplicated, but may only be made copied or duplicated, but may only be made available for inspectionavailable for inspection

Our job – to do the right thingOur job – to do the right thing

““Your job as Assistant U.S. Attorneys is Your job as Assistant U.S. Attorneys is not to convict people. Your job is not to not to convict people. Your job is not to win cases. Your job is to do justice. Your win cases. Your job is to do justice. Your job is in every case, every decision you job is in every case, every decision you make, to do the right thing.” make, to do the right thing.” – Attorney General Eric Holder.Attorney General Eric Holder.