2023 Investigative Summary 7

INVESTIGATION OF ALLEGED FAILURE TO PROVIDE TIMELY DISCOVERY AND LACK OF CANDOR

OPR opened an investigation as a result of a court’s post-conviction findings that the government had failed to comply with its discovery obligations when prosecutors did not disclose to the defense before trial a material exculpatory document.  Although the document was disclosed mid-trial, the court criticized the government for failing to timely disclose the document, failing to advise defense counsel at the time the document was disclosed that it had not been disclosed previously, and making misrepresentations to the court regarding the disclosure to the defense. 

Based on OPR’s investigation and review of the extensive record, OPR concluded that although the conduct of members of the trial team was flawed, none of the prosecutors on the trial team committed professional misconduct.  Regarding the discovery issue, OPR concluded that the prosecutors had an obligation to disclose the document as required by Department policies and other standards.  OPR determined, however, that the failure to disclose the document was the result of the prosecution team’s reasonable belief that it had been produced by the prosecutors who had indicted the case, none of whom remained on the trial team; the failure of their predecessors’ record-keeping processes for meeting the government’s disclosure obligations; and the trial team’s good faith, but mistaken, belief that the document was entirely inculpatory.  Accordingly, OPR concluded that the prosecutors did not engage in intentional or reckless misconduct as a result of their failure to disclose the document before trial.