2021 INVESTIGATIVE SUMMARY 6

Investigation into Judicial Criticism for Failure to Disclose Exculpatory Evidence; Act with Reasonable Diligence and Promptness in Representing the United States; Communicate with the Client; Obey a Court Order; and for Conduct That is Prejudicial to the Orderly Administration of Justice

A U.S. Attorney’s Office notified OPR of a district court order dismissing an indictment with prejudice on the grounds that the government violated its Brady obligations; made false representations in its response to the defendant’s post-trial motion to dismiss the indictment; failed to meaningfully respond to the defendant’s allegations that the government engaged in willful misconduct in the case, in contravention of the court’s order to the government to submit briefing specifically addressing the misconduct allegations; and assigned responsibility for responding to the defendant’s misconduct allegations to attorneys who lacked sufficient knowledge of the facts to address them, without any meaningful review of the government’s pleadings by the only person who possessed the requisite knowledge. 

OPR conducted an investigation and concluded that an AUSA did not violate her ethical obligations under the Constitution or the applicable rule of professional conduct in failing to disclose favorable evidence to the defense.  OPR nonetheless concluded that in failing to disclose the evidence, or preserve it for disclosure, the AUSA committed professional misconduct by acting in reckless disregard of a prosecutor’s obligations under Department policies governing disclosure of exculpatory evidence.  OPR also concluded that the AUSA committed professional misconduct by acting in reckless disregard of her obligations to act with reasonable diligence and promptness in representing the United States; engaging in conduct that is prejudicial to the orderly administration of justice; knowingly engaging in conduct that resulted in a violation of a court order; and by failing to keep her client reasonably informed about the status of the case and apprised of facts that were reasonably necessary for the client to make informed decisions about the representation.

In addition, OPR concluded that in filing a pleading that failed to specifically address the defendant’s willful misconduct allegations, as ordered by the court, another member of the prosecution team did not commit professional misconduct, but rather exercised poor judgment.

Finally, OPR concluded that a supervisor who was involved in the litigation committed professional misconduct by acting in reckless disregard of her obligation to act with reasonable diligence and promptness in representing the United States.  OPR referred the matter to the Professional Misconduct Review Unit.