2016 Investigative Summary 3

Investigation of Alleged Discovery - Rule 16; Discovery - Impeachment/Jencks; Misrepresentation/Misleading the Court; 
Misrepresentation to Opposing Counse; Failure to Comply with DOJ Rules and Regulations; Unprofessional or Unethical Behavior

A DOJ attorney self-reported to OPR allegations that he made false representations to defense counsel and the court concerning the identification of a defendant as the perpetrator of an armed assault on a confidential informant (CI). The CI, who had previously purchased drugs from the defendant as part of his cooperation with law enforcement authorities, reported to law enforcement that the defendant had pointed a gun at the CI and his wife. However, in a meeting with the DOJ attorney, the CI recanted his identification of the defendant as the assailant, acknowledged that his identification of the defendant had been based on his wife's identification of the assailant, and stated that his wife had subsequently identified someone other than the defendant as the assailant. The defendants characterized the CI's misidentification of the defendant as exculpatory and complained that the DOJ attorney should have disclosed the misidentification earlier. Further inquiry by OPR revealed numerous discovery issues related to the CPs misidentification of the defendant as the armed assailant.

OPR conducted an investigation and concluded that the DOJ attorney:

(1) acted in reckless disregard of his obligations under the DOJ component's discovery policy by failing to produce to the defense an investigative report memorializing the CPs initial identification of the defendant as the armed assailant;

(2) acted in reckless disregard of his obligation to produce material impeachment evidence affecting the CPs credibility by failing to disclose to the defense in the related case the CPs recantation of his identification of the defendant as the armed assailant;

(3) exercised poor judgment by failing to memorialize, or cause to be memorialized by an agent, the CPs recantation when it occurred;

(4) exercised poor judgment in the manner in which he responded to the defendant's attorney regarding the identity of the CPs assailant;

(5) acted in reckless disregard of his obligation not to engage in conduct prejudicial to the administration of justice, when he produced to the defendant's attorney redacted investigative reports memorializing the CPs identification of the defendant as the armed assailant but did not disclose to the attorney that the CI had recanted his identification of the defendant until five or six weeks after the investigative reports were produced;

(6) acted in reckless disregard of his obligation under the DOJ component's discovery policy, when he failed to produce the redacted investigative reports  memorializing the CPs identification of the defendant as the armed assailant at a time defense counsel could have made use of them in a pretrial suppression hearing;

(7) acted in reckless disregard of his obligation not to engage in conduct involving misrepresentation, when he failed to provide an accurate and complete narrative of the facts concerning the CPs misidentification of the armed assailant in the government's response to the defendant's motion to dismiss;

(8) acted in reckless disregard of his obligations to disclose material impeachment evidence affecting a government witness' credibility, when he failed to disclose the CPs third inconsistent account of the armed assault;

(9) acted in reckless disregard of his obligation not to engage in conduct involving misrepresentation, when he sent an e-mail to trial and appellate counsel in a related case that did not accurately and completely describe the CPs recantation;

(10) acted in reckless disregard of his obligations to timely disclose discovery material to the defendants in the unrelated case, when he failed to make diligent efforts to obtain and disclose the defendants' statements, in violation of the court's scheduling order and a local rule.

Finally, OPR found that the DOJ attorney's handling of discovery matters, together with OPR's conclusions that he engaged in professional misconduct in multiple respects, raised significant concerns about the DOJ attorney's competence, and OPR found that his performance
fell below the level of competency expected of a DOJ attorney.  OPR referred its findings to the PMRU for consideration of possible discipline. The PMRU upheld OPR's findings of professional misconduct, suspended the DOJ attorney without pay, and authorized OPR to refer its findings to the state bar.

OPR referred its findings of professional misconduct to the appropriate state bar disciplinary authority.