2017 Investigative Summary 10

Investigation of Alleged Failure to Comply with Discovery Obligations – Brady/Giglio Violation; Misrepresentation/Misleading the Court

A DOJ component notified OPR that, in ruling on a post-conviction motion, a court found that a DOJ attorney had suppressed evidence that the government had filed a motion to reduce the sentence of a key government witness in exchange for her testimony against the defendant, and that this evidence was material to the verdict. The court granted the defendant a new trial, but the government thereafter moved to dismiss the indictment with prejudice, and the court granted the government’s motion. OPR initiated an inquiry, which it later converted to an investigation.

OPR concluded that the DOJ attorney had recklessly disregarded the constitutional due process obligation imposed by Brady and Giglio, and the parallel disclosure obligations imposed by the state’s professional responsibility rule, by failing to disclose material impeachment and exculpatory information to the defense.

Moreover, OPR learned that the DOJ attorney had intentionally misrepresented to the court, both in writing and orally during allocution at the witness’ sentencing hearing, that the witness had testified against the defendant in the grand jury, and this misrepresentation was material to the outcome of the witness’ sentencing. OPR concluded that the misrepresentation amounted to a violation of the general common-law duty of candor and the duty of candor imposed by the state’s applicable professional responsibility rule.

Finally, OPR concluded that the DOJ attorney had also exercised poor judgment in eliciting testimony that the witness for whom the government had filed a motion to reduce sentence had no expectation of a future sentencing benefit, without clarifying that the witness had already received a significant sentencing concession from the government in exchange for her testimony.

OPR referred the matter to the PMRU. The DOJ attorney had previously resigned from the Department, and the PMRU directed OPR to refer its findings to the DOJ attorney’s state bar.