2018 - INVESTIGATIVE SUMMARY 6

Investigation of Alleged Failure to Comply with Discovery and Department Rules and Regulations

This investigation — which found reckless professional misconduct — focused on a district court ruling that the government violated its obligations under Brady by failing to timely disclose that the government’s sole eyewitness lied under oath during the first trial. 

At the first trial, the defense sought to undermine the eyewitness’ credibility by cross‑examining him about his alleged theft from his former employer, which allegedly led to his termination.  The eyewitness denied the theft, and the defense was not permitted to present extrinsic evidence of the alleged theft.

Months later, on the eve of the eyewitness’ testimony at the re-trial, the Department attorney disclosed to the defense that the eyewitness had admitted ten days earlier that he did, in fact, steal from his former employer.  The defense sought a mistrial on the ground that the untimely disclosure violated Brady and irreparably prejudiced the defense.  Rather than declare a mistrial, the court gave curative instructions that, among other things, informed the jury of the government’s delayed disclosure and advised the jury that it could consider the government’s failure to timely disclose favorable information during its deliberations.  The eyewitness then testified, and the defense cross-examined him about the theft and perjury.

OPR concluded that the Department attorney’s late disclosure of the eyewitness’ admission did not violate the requirement to disclose exculpatory or impeaching information under Brady and Giglio.  Because the court intervened and issued curative jury instructions, and the defense cross-examined the eyewitness using the admission, the Department attorney’s untimely disclosure did not cause sufficient prejudice to the defense to constitute a Brady/Giglio violation. 

Similarly, OPR concluded that the late disclosure did not violate the applicable rule of professional conduct, because it did not deprive the defense of the use of the eyewitness’ admission.  However, OPR concluded that the Department attorney’s late disclosure showed a reckless disregard for his disclosure obligations under Department policy.  The Department attorney was well aware of his disclosure obligations, and he knew or should have known that the eyewitness’ admission was information favorable to the defense that should be promptly disclosed.