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A three-judge panel for the United States Court of Appeals for the Fourth Circuit issued a blistering critique of the U.S. Attorney’s Office for the Eastern District of North Carolina in an opinion filed August 23, 2013.

The Fourth Circuit considered a number of claims made by defendant Gregory Bartko that the government had withheld evidence in violation of Brady v. Maryland and Napue v. Illinois in his case, which involved charges of money laundering and fraud. Though finding that the government had withheld favorable evidence in the case, the Court determined that the evidence would not have changed the jury’s verdict and affirmed Bartko’s conviction.

Nevertheless, the Court paused to “address the discovery practices of the United States Attorney’s office in the Eastern District of North Carolina,” because in reviewing a number of cases in which the government withheld evidence favorable to the defense, it was concerned that the office’s conduct was intentional:

Mistakes happen.  Flawless trials are desirable but rarely attainable.  Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional… Moreover, the government’s responses to queries regarding its practices are less than satisfactory…  Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.

Justice Floyd, writing for the panel, artfully described one of the core problems leading to prosecutorial misconduct: the twisting of the Brady rule by prosecutors who seek to make themselves the deciders of what evidence is or is not “material” (would impact a jury’s verdict) instead of the courts. His assessment of the North Carolina U.S. Attorney’s office in this regard is scathing:

As detailed above, our confidence in the jury’s conviction of Bartko was not undermined by the government’s misconduct in this case.  And such is the result in many cases.  Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict.  But that is not the true problem. 
The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony.  Make no mistake, however.  We may find such practices “harmless” as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless.  “No [one] in this country is so high that [she or] he is above the law.  No officer of the law may set that law at defiance with impunity.  All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”  United States v. Lee, 106 U.S. 196, 220 (1882).  The law of this country promises defendants due process, U.S. Const.  amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. 
Yet the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable.  Something must be done.  

Determined to whip the U.S. Attorney’s office into line, the Court took the unusual step of urging the district court in the Eastern District of North Carolina to meet with the office to “discuss improvement of its discovery practices” and, if things do not get better, said it may require the US Attorney of the Eastern District to join his trial prosecutors at oral argument to discuss future allegations of misconduct. The Court also mentioned disciplinary actions and sanctions, specifically noting its own intention to involve the Department of Justice’s Office of Professional Responsibility:

To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.

In a powerful finish, the Court acknowledged the extraordinary nature of its actions, but said it cannot turn a blind eye to such worrisome patterns of prosecutorial misconduct:

We do not mean to be unduly harsh here.  But “there comes a point where this Court should not be ignorant as judges of what we know as men [and women].”  Rumsfeld v. Padilla, 542 U.S. 426, 465 n.10 (2004) (Stevens, J., dissenting) (quoting Watts v. Indiana, 338 U.S. 49, 52 (1949)).  What we know is that we are repeatedly confronted with charges of discovery abuse by this office.  What we know is that our questions regarding this abuse remain unanswered.  And what we know is that such conduct is unacceptable.  Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated.  Whatever it takes, this behavior must stop.

A common critique of the failure of the system to address prosecutorial misconduct is that courts generally refuse to name and shame prosecutors who engage in it; much less refer misconduct to bar associations or other offices with the power to enforce accountability. In Radley Balko’s recent piece for The Huffington Post, he noted that “throwing out a conviction is intended to ensure due process for a given defendant — not to punish a wayward prosecutor. Appellate court decisions that overturn convictions due to prosecutorial misconduct rarely even mention the offending prosecutor by name.”

The Fourth Circuit has set an example in the present case for courts across the country in how to deal with prosecutors when they  violate their ethical obligations – even when the violations do not demand a new trial.




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