2017 Investigative Summary 3

Investigation of Alleged Failure to Disclose Exculpatory Evidence; Failure to Disclose Impeachment Evidence; Failure to Comply with Discovery Rules;
Lack of Candor to the Court; Misrepresentations to the Court; Failure to Comply with United States Attorneys’ Manual Provisions;
Failure to Correct False Testimony

A DOJ component notified OPR of a court of appeals decision reversing two defendants’ convictions because the government suppressed impeachment evidence related to a key government witness. The court of appeals also found that two DOJ attorneys made misrepresentations to the trial court regarding the evidence and either sponsored false testimony at trial or failed to correct the false testimony. The court further found that “the trial court was misled” by the government’s “late production and continued misrepresentation or nondisclosure of the information in its possession” and that “[t]he government did not seek to qualify or correct” incomplete testimony at trial. OPR opened an inquiry, which it later converted to an investigation. 

OPR concluded in its final report that both DOJ attorneys:

(1) committed professional misconduct, when in reckless disregard of their Brady/Giglio obligations, they failed to disclose impeachment information related to a key government witness;

(2) committed professional misconduct in violation of Department policy set forth in USAM § 9-5.001, when in reckless  disregard of their discovery obligations, they failed to disclose impeachment evidence related to a key government witness;

(3) committed professional misconduct in violation of the rules of professional conduct when in reckless disregard of their duty to make diligent efforts to comply with a legally proper discovery request by an opposing party, they failed to disclose impeachment evidence related to a key government witness until after trial, when the court ordered the production of the evidence;

(4) committed professional misconduct in violation of the rules of professional conduct when in reckless disregard of their Brady/Giglio obligations, they failed to disclose impeachment evidence related to a key government witness until after trial, when the court ordered the production of the impeachment evidence, conduct that seriously interfered with the administration of justice;

(5) committed intentional professional misconduct in violation of the rules of professional conduct when they knowingly made misrepresentations to the court;

(6) committed intentional professional misconduct in violation of their general duty of candor to the court, when they knowingly failed to correct false or misleading testimony of a key government witness, conduct that violated the defendants’ due process rights to a fair trial.

OPR referred its findings to the PMRU which sustained each of OPR’s findings of misconduct and imposed periods of suspension for both DOJ attorneys, and also authorized OPR to refer its findings to the appropriate state bars.