2015 Investigative Summary 5

Investigation of Alleged Failure to Disclose Exculpatory Information; Failure to Comply with Department Policy

A court found that a DOJ attorney violated her Brady obligations by failing to disclose to the defense an exculpatory statement made by a non-testifying co-defendant during a debriefing session. During a proffer session, the co-defendant told the DOJ attorney that the defendant was unaware of the narcotics that law enforcement agents recovered from a vehicle. Shortly after the debriefing session ended, the co-defendant's attorney requested another meeting with the DOJ attorney, claiming that her client had lied but was now ready to tell the truth.

The DOJ attorney arranged a second debriefing, during which the co-defendant recanted his earlier statement and told the DOJ attorney that the defendant knew about the presence of the narcotics in the vehicle. The DOJ attorney did not disclose the co-defendant's statements to the defendant before trial.

OPR initiated an inquiry, which was subsequently converted to an investigation. The DOJ attorney explained that she did not disclose the witness' statements because the co-defendant recanted his initial statement, and the DOJ attorney believed that the defendant could have  obtained the information through the exercise of due diligence because the defendant and co-defendant were together in the vehicle at the time of their arrest.

Prevailing law at the time held that there was no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question, or if the information was available to him from another source.

OPR concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligations pursuant to Department policy, as set forth in the U.S. Attorneys' Manual, § 9-5.001 et seq., to disclose evidence favorable to the defense without regard to materiality. Although a close question under the unique circumstances presented in this case, OPR was constrained to conclude that the DOJ attorney did not violate a clear and unambiguous obligation pursuant to Brady or the applicable state rules of professional conduct because the defendant and co-defendant were together in the vehicle at the time of their arrest; thus, the defendant arguably knew or should have known how the co-defendant would testify at trial concerning whether the defendant knowingly participated in a conspiracy to distribute the narcotics in the vehicle. The defendant did not seek his former co-defendant's testimony at trial.

OPR referred its findings to the PMRU, which sustained OPR's findings and issued a letter of reprimand to the DOJ attorney.