Prosecutorial Misconduct

On February 17^th, 2021, U.S. District Court Judge Alison Nathan of the U.S. District Court for the Southern District of New York released yet another scathing order concerning the government’s misconduct in the case of United States v. Ali Sadr Hashemi Nejad. This order follows several similar orders over the last year involving not only the government’s failure to disclose exculpatory evidence but also the false declarations filed by federal prosecutors and other conduct designed to hide information from the defense. When the government’s misconduct originally came to light, the government tried to dismiss the Indictment in an effort to avoid public scrutiny of its conduct. That effort failed.

In many ways, the case is reminiscent of United States v. Ted Stevens, a case tried in the U.S. District Court for the District of Columbia in 2008. In that case, the government not only withheld exculpatory information; it also successfully pressured its star witness into changing his testimony to secure the conviction of a United States Senator who the Justice Department later conceded was innocent. Following Senator Steven’s wrongful conviction and exoneration, the U.S. Attorney Manual was changed to make sure no such misconduct occurred in the future. Now, here we are, less than ten years later, and it happened again.

How Common is the Problem

A lost has been written about Brady v. Maryland and Giglio v. United States, and the obligation of state and federal prosecutors in the United States is so clear that it requires no explanation. In a criminal case, the government is required under the U.S. Constitution to disclose information in its possession that is material to defense counsel without a request from the defense. Disclosure is required to ensure a fair trial under the Due Process Clause. And yet, Brady violations occur with regularity.

How frequent are Brady violations? The truth is that we have no idea. As discussed below, prosecutors and courts are apt to parse the language of Brady focusing on “material to the defense”, but a more problematic aspect of the Brady obligation is timing. Prosecutors are not required to disclose exculpatory evidence until trial. In over 95 percent of federal cases, defendants plead guilty, meaning that prosecutors are never required to disclose exculpatory information. In all of these cases, exculpatory information can be intentionally withheld without violating Brady. The reality of trial practice is that most defendants, including many innocent defendants, decide to take a plea offer based upon the representations of the prosecutors as to the strength of their case. If prosecutors are permitted to keep exculpatory information from the defendant in the negotiations process, which they are, innocent people can be pressured into pleading guilty.

Another problem with Brady and determining the scope of the problem is the fact that the government holds all of the investigative information in its cases, and if it does not disclose the existence of exculpatory evidence, in most cases, the defendant will never find out that it was withheld. In R. v. Stinchcombe decided in 1991, the Supreme Court held that prosecutors are under a duty to disclose all information “relevant” to the defense, not simply evidence the government considers “material”. Furthermore, the court plays an active role in reviewing the government’s information and can order information be released to the defense if the court finds it to be relevant. Unfortunately, for us Americans, Stinchcombe is a decision of the Supreme Court of Canada. In Canada, criminal investigations are not considered to be the property of the prosecution but rather important information to he held for the benefit of the defendant and society as a whole.

Not so in the United States. Evidence in the U.S. is within the purview of prosecution authorities subject to the prosecutor’s determination of what is material and what is not. In camera reviews of prosecution files are almost unheard of. If a prosecutor decides to withhold information, even if that decision is intentional, the violation may go undetected forever.

Brady violations are a recurring problem at both the state and federal level, and defense counsel should never rely upon the government in a contested matter to disclose all exculpatory evidence in the case. If exculpatory evidence exists, the defense counsel, through his or her own investigation is going to have to locate it.

Why do Brady Violations Continue to Occur?

There are at least several reasons why Brady violations continue to occur. One of the reasons is investigative incompetence coupled with a lack of prosecutorial concern.

My first exposure to a Brady violation occurred when I was a military defense counsel in the U.S. Navy. I was appointed to represent an enlisted sailor charged with murder. According to the government, there had been a fight between two groups of sailors from two different ships, and during the course of the altercation, they said, my client had left the scene, went back to his car and secured a weapon, a cane, with which to kill the victim. The information provided to me by the prosecutors showed my client’s overwhelming guilt. As I began doing my own investigation, however, I discovered at least a half dozen witnesses who told me that another sailor had bragged about killing the victim. Furthermore, the other sailor had been observed at the scene of the fight with a club.

Most shocking, all of these witnesses told me that they had been interviewed by agents of the Naval Criminal Investigative Service (NCIS) and that they provided written statements to NCIS. As trial drew near, I filed a Motion to Dismiss. My motion was denied because I had discovered the information. We proceeded to trial, and my client was found not guilty. However, had I relied upon the government to comply with its Brady obligations, the written witness statements provided to NCIS would never have been disclosed, and an innocent sailor may well have been convicted.

My next, but not last, brush with Brady came when I was a supervisory attorney at a state prosecutor’s office. A prosecutor working under me prosecuted and convicted a defendant of rape, and the defendant had received a 15-year prison sentence. About six months after the conviction, the prosecutor came to me and told me that prior to trial, he had been contacted by a friend of the victim’s who told him that victim had told her friend that she made up the allegation and that the rape had never occurred. He wanted to know if I thought he had an obligation to disclose that information. In his mind, he did not believe the witness, and since he thought she was not truthful, he did not consider the statement “material”. We disclosed the information to defense counsel and agreed to a new trial. Before another trial could occur, however, the victim admitted that the rape had never occurred.

Another reason for Brady violations is the culture that exists within many prosecutors’ offices. Too often, prosecutors see themselves as wearing the white hats and being on the side of truth and justice. Defendants are seen as being on the dark side, and if a guilty defendant is allowed to escape, then other innocent victims will be hurt. Therefore, sometimes, “justice” needs a helping hand, in their opinion. The concept of an innocent defendant never crosses their mind. When a prosecutor sees himself or herself in an epic struggle against evil, the temptation is great to withhold information that might lead evil to prevail.

Prosecutorial laziness is another reason for Brady violations. The complex investigations, particularly at the federal level, involve multiple agencies and sometimes agencies from different states or foreign countries. Prosecutors leading such an investigation have an obligation to gather exculpatory information from all investigators working on the case; however, for any number of reasons, including bureaucratic inertia, some information never makes it to the lead investigators. If information does not further the investigation, lead investigators tend to forget about its existence. A prosecutor who takes his or her role seriously will search for the exculpatory information. Too often, however, a lazy prosecutor will call the lead investigator to make sure all information has been provided to the prosecutors. The lead investigator will say “yes” without checking further, and a Brady violation can occur.

Finally, the failure of the courts to adequately enforce Brady is a major reason for Brady violations. Although Brady was on the cutting edge of due process when it was decided over 50-years ago, its promise has largely been aspirational. Judges, with a few notable exceptions, are largely passive in the criminal discovery process. When a Brady issue arises pre-trial, the trial proceeds as would otherwise. If a Brady issue arises at trial, a court might give a defense counsel 24 hours to investigate a disclosure, a clearly inadequate remedy for the violation. If a Brady is discovered after trial, in most cases the courts will find the evidence disclosed was not “material” in order to avoid a new trial. In fact, the best a defendant can reasonably hope for in most cases is the trauma, stress and expense of a new trial. Cases are rarely dismissed for Brady violations.

What can be Done?

As the Ali Sadr case demonstrates, there are systemic failures in some U.S. Attorney’s Offices, and the problem is probably more pronounced at the state level. The reforms instituted by the Department of Justice after the Stevens case have failed. These issues can and should continue to be raised in courts throughout the United States and before Congress; however, I am not hopeful that either the legislative or judicial branches of government will attempt to effectively rein in the Department of Justice. There has been no public outcry requiring Congress to act. The judiciary seems content with the current way in which criminal cases are “processed”.

This does not mean, however, that there is nothing that defense counsel can do. Publicizing Brady violations as a form or prosecutorial misconduct is important. Generally speaking, prosecutors control the media narrative through press releases and ongoing contact with the media. Demonstrating that there has been misconduct undermines this narrative and helps to create a more level playing field. Of course, defense counsel needs to be aggressive in pursuing this information before, during and after trial.

Finally, for defense counsel, justice occurs most often with the individual defendant. The defense counsel cannot assume that the government is acting in good faith or that all exculpatory information has or will be produced. Cases are most often won or lost at the investigative stage of the representation. This means meeting with witnesses or having staff or private investigators meet with witnesses and secure evidence. It may involve having a court issue subpoenas. There is a lot that an attorney can do to find exculpatory evidence. Waiting for Jenks Act or Brady materials to arrive from the government and then reading those the weekend before trial is not enough.

At trial, it may involve asking witnesses questions to make sure you have received all of the witness statements from the government. I remember one three-week trial where every evening I would receive an email from the prosecutor disclosing information he had “forgot” to provide before trial. After three or four of these emails, the judge suspended trial for three days to make sure the government disclosed everything before moving forward with the trial. It is not unusual to find that a witness spoke with government investigators and provided a statement not disclosed before trial. Often times, a witness’ story will evolve between his or her first interview with agents and the trial.

Even after the trial is over, exculpatory information may be discovered. In a tax fraud case I defended, the government disclosed hundreds of thousands of documents to me prior to trial. Only about 100 hundred of these documents were useful. As I prepared for trial, my staff and private investigators we retained came upon a number of witnesses who had been interviewed by agents of the IRS Criminal Investigations Division (IRS-CID), and, after going back to the government, the government provided us with notes of those interviews. The defendant in that case was convicted after a jury trial; however, after the conviction, we continued searching for evidence that could exonerate our client. Eventually, we received discovery provided to a defendant in a different case that contained emails that exculpated our client. In response to our post-trial motion, the government acknowledged the exculpatory nature of the emails but indicated the failure to disclose was inadvertent.

Conclusion

Brady requires the government to provide material exculpatory evidence to the defense whether it has been requested or not. Defense counsel should attempt to secure Brady material from the government, but the failure of the government to provide Brady material is not uncommon. One way to overcome the government’s failure is to conduct an independent investigation which might discover exculpatory evidence. It is also possible that in discovering exculpatory evidence, the defense may uncover the government’s suppression of the exculpatory evidence. These important transgressions by prosecutors responsible for upholding justice and the rule of law must be litigated and the public made aware of the government’s suppression of evidence. Only then can the promise of Brady begin to be realized.