2018 - Investigative Summary 10

Investigation of Alleged Failure to Comply with Discovery, Interference with Defendant’s Rights

The investigation — which found reckless professional misconduct — focused on allegations that eyewitness identifications elicited at trial by Department attorneys were tainted by impermissibly suggestive pretrial identification procedures.    

The defendant, charged with armed bank robbery, was identified in a bank surveillance video by a relative, and his fingerprint was found on the demand note.  At trial, two Department attorneys elicited in-court identifications of the defendant from two bank tellers who had been unable to identify the defendant from a photo array on the day after the robbery. 

On cross‑examination, one teller testified that during a pretrial preparation meeting with the prosecutors, the tellers were shown still photographs of the robber from the bank surveillance video, and that the Department attorneys told them the defendant’s name and advised them that he had been charged with the robbery.  The other teller testified that she was taken into the courtroom during a pretrial hearing at which the defendant was present.

Defense counsel moved for a mistrial on the grounds that the in-court identifications were influenced by impermissibly suggestive pretrial identification procedures.  The court, however, declined to grant a mistrial.  In their closing arguments, the Department attorneys emphasized the fact that both bank tellers had identified the defendant as the robber.  On appeal, the government conceded the pretrial identification procedures were improper, but argued that the error was harmless in light of the evidence against the defendant.

OPR found that the Department attorneys committed reckless professional misconduct when they engaged in a series of suggestive pretrial identification procedures that denied the defendant’s right to a fair trial.  OPR also found that the Department attorneys committed reckless professional misconduct when they elicited identification testimony during their direct examinations of the witnesses at trial, without disclosing to the defense the circumstances that led the witnesses to make their in‑court identifications. The Department attorneys compounded the problem by emphasizing in their closing and rebuttal arguments the reliability of the witnesses’ in-court identifications.