2014 Investigative Summary 8

Investigation of Alleged Misrepresentation/Misleading the Court;
Failure to Comply with Plea Agreement Policies

A federal law enforcement agency notified OPR that a DOJ attorney filed a pleading accusing a law enforcement agent of committing serious misconduct during the prosecution of a series of cases. The DOJ attorney subsequently self-reported allegations that the pleading he filed was false and misleading.

OPR opened an investigation, which it conducted jointly with the internal affairs office of the law enforcement agency. OPR conducted an extensive investigation, reviewing voluminous documents and e-mails and conducting more than 25 interviews. Based on its investigation,

OPR concluded that the DOJ attorney committed intentional professional misconduct in violation of his duty of candor to the court when he:

(1) stated falsely that a defendant was not present at an assault because the defendant had an alibi based on credible witnesses;

(2) knowingly failed to inform the court about the government's evidence implicating the defendant in the assault, information that the court specifically requested and needed in order to determine the defendant's sentence; 

(3) falsely informed the court that a co-defendant had represented that the defendant was not present at the assault.

OPR further concluded that the DOJ attorney violated his duty of candor to the court when he alleged at a sentencing hearing and in his sentencing memorandum that the law enforcement agent had committed misconduct during the prosecution and had been sanctioned for the misconduct. OPR concluded that none of the allegations the DOJ attorney made about the law enforcement agent had merit and that the agent acted appropriately during the prosecution. In addition, OPR concluded that the DOJ attorney engaged in reckless professional misconduct when he modified the defendant's plea agreement without supervisory approval, misrepresented the agreement to the court, and misled defense counsel regarding the government's sentencing recommendation.

OPR referred its professional misconduct findings to the PMRU; however, the DOJ attorney retired after receiving OPR's draft report. The PMRU adopted OPR's findings and conclusions, and directed OPR to notify the DOJ attorney's state bar disciplinary authority of OPR's misconduct findings, and OPR has done so.