2019 INVESTIGATIVE SUMMARY 13

INVESTIGATION OF ALLEGED FAILURE TO HONOR DEBRIEFING AGREEMENT

An Assistant U.S. Attorney reported to OPR that an appellate court had found that at the defendant’s sentencing, she breached a pre-plea debriefing agreement by using information provided by the defendant during the debriefing session.  OPR’s investigation revealed that the prosecutor used the debriefing information after consultation with her supervisor and with defense counsel’s acquiescence, and she did so in order to correct the record—an unusual confluence of circumstances that could have made her actions appropriate if she had made a proper record of them.  Given the prosecutor’s good faith consultation with her supervisor and opposing counsel, OPR concluded that the prosecutor’s conduct did not constitute professional misconduct.  However, the prosecutor’s failure to make any record regarding her use of the debriefing information—including its source, her reason for using it, and defense counsel’s acquiescence—constituted a mistake that had significant consequences, including an adverse appellate opinion.