2020 Investigative Summary 7

INVESTIGATION OF ALLEGED FAILURE TO TIMELY DISCLOSE BRADY INFORMATION AND FAILURE TO COMPLY WITH DEPARTMENT POLICIES GOVERNING DISCLOSURE OF EXCULPATORY INFORMATION

A U.S. Attorney’s Office notified OPR of a judicial finding that an Assistant U.S. Attorney (AUSA) violated its Brady obligations by failing to timely disclose to the defense information about a possible third-party perpetrator.  Although the AUSA timely disclosed some information concerning the alleged third-party perpetrator’s possible involvement in the offense, the AUSA did not disclose other information relevant to the alleged third-party perpetrator’s identity until two weeks prior to the trial, and more than two years after the government learned of the information.  The court denied the defendant’s motion to dismiss the case, concluded that the defense suffered no prejudice due to the late disclosures, and remedied the untimely disclosures by continuing the defendant’s trial date.  The court also found that the AUSA did not act in bad faith, observing that the AUSA (1) promptly disclosed the additional information upon realizing it had not been disclosed and (2) took appropriate action to mitigate the effect of the late disclosures.  The court nonetheless found a Brady violation based on the late disclosures.

OPR conducted an investigation and concluded that the AUSA did not violate the defendant’s due process rights and, therefore, did not engage in professional misconduct.  OPR agreed with the court’s conclusion that the defense was not prejudiced by the late disclosures because it effectively used the disclosed information to prepare a viable third-party perpetrator defense.  In addition, OPR determined that the AUSA did not violate the special obligations required of prosecutors by the applicable Rules of Professional Conduct.  OPR found no evidence that the attorney purposefully or knowingly withheld the information relevant to the alleged third-party perpetrator’s identity or delayed disclosing it for an improper purpose.  Rather, OPR found that the AUSA intended from the outset of the case to be forthcoming with the exculpatory information about the alleged third-party perpetrator and that the AUSA’s failure to timely disclose the additional information relevant to the alleged third-party perpetrator’s identity was inadvertent.  Finally, OPR found that, although the AUSA generally complied with Departmental policies governing the prompt disclosure of exculpatory information, the AUSA nonetheless acted in contravention of the policies in failing to timely and completely disclose everything relevant about the alleged third-party perpetrator.  OPR, however, determined that the AUSA’s actions did not constitute intentional or reckless professional misconduct.  Rather, OPR concluded that the AUSA’s failures to make timely disclosures were mistakes despite the exercise of reasonable care under the circumstances.