SDNY Judge Refers Prosecutors for Internal Investigation for Brady Violations

The Federal Docket

A case involving egregious prosecutor misconduct finally ended with a written opinion by Judge Nathan of the Southern District of New York referring the prosecutors for investigation by the Department of Justice’s Office of Professional Responsibility (OPR). OPR’s stated purpose is “to ensure that Department attorneys perform their duties in accordance with the high professional standards expected of the nation’s principal law enforcement agency.” 

The case involved a prosecution of a defendant for violating economic sanctions and bank fraud. After he was found guilty, the defense filed a motion for acquittal based on alleged Brady violations. Specifically, the Government had failed to disclose key evidence that would have been helpful to the defense until the middle of trial, though each of the prosecutors in the case had the evidence and were aware of it for months. Emails between the prosecutors reflected discussions where, when they realized they had failed to produce the evidence during the discovery, the prosecutors discussed “burying” it in copies of documents already produced to the defense, and they failed to tell the defense the documents contained the new evidence. Communications from other prosecutors also revealed that they had lied to the Court in a letter.

The Government dismissed the charges after the defense filed its motion, but Court expressed serious concerns about the prosecutors’ failure to comply with Brady v. Maryland, which requires the prosecution to turn over exculpatory evidence to the defense. Holding that the dismissal of the charges does not end the inquiry, the Court ordered that the prosecutors file sworn affidavits answering specific questions about their failure to disclose the document, stating in its opinion:

“In this case, federal prosecutors have by their own admission repeatedly violated their disclosure obligations and, at best, toed the line with respect to their duty of candor. Over the course of years in this prosecution—before, during, and after trial—the Government has made countless belated disclosures of arguably (and, in one instance, admittedly) exculpatory evidence. For some pieces of evidence, the Government provides plausible explanations for its late disclosure. For others, it provides no explanation at all. And when the Court pressed for more information about one of these failures, the Government made a misrepresentation to the Court. This serious dereliction requires a serious response.”

Ultimately, however, the Court that the Government had not intentionally withheld the Brady material because it had not recognized the exculpatory value of the document, crediting affidavits submitted by the prosecutors stating that they did not initially recognize the exculpatory value. At the same time, however, the Court found that the exculpatory value of the document “was not a particularly doubtful question” and that the AUSA’s supervisors noticed it immediately when they saw the document.

Because the prosecutors dismissed the charges after the defense filed its motion alleging the Brady disclosures, the Court referred the prosecutors for investigation by the OPR.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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