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In a case involving an investigator who masturbated in front of a grand jury witness in her car, and later threatened her with arrest and a strip search, federal prosecutors in Lynchburg apparently failed to disclose an FBI report detailing the man’s behavior to a defendant that the investigator testified against.

The prosecution arose out of a joint state-ATF prescription drug investigation dubbed “Operation Pain Train,” and centered in Bedford County.

According to the Roanoke Times, Les Christopher Burns was convicted last year of drug conspiracy and sentenced to 11 years in federal prison. One of the witnesses against him was Bedford County sheriff’s Deputy Christopher Lee Cook, a member of the joint task-force.

A year before Burns’ trial, a female grand jury witness in the ongoing investigation reported to her lawyer, and later to the FBI, that Cook had texted her, asked her to have a drink, made a pass at her, and when that was rebuffed, masturbated in front of her in her car. When the FBI report was shared with Bedford County Prosecutors, Cook was reprimanded, he was removed as an investigator, and his pay was suspended for two weeks, but he retained his job as a sheriff’s deputy.

At issue in the subsequent prosecution of Burns is the fact that federal prosecutors, aware of the FBI report regarding one of their witnesses, apparently failed to disclose it to Burns’ trial counsel.

About a month before Burns went on trial, prosecutor Ashley Neese, in a sealed motion, asked [District Judge] Moon how much of Cook’s conduct she needed to disclose to Burns’ trial lawyer, according to court documents. According to the new allegations, prosecutors gave Moon a sanitized version of events by mentioning only the two social meetings, the kiss and the alcohol but nothing about the sexual advance.

Nevertheless, Moon directed prosecutors to turn over everything they had on Cook to the defense before the June 2014 trial. Beers [Burns’ appellate counsel] contends they didn’t do so until May 2015 after he launched the appeal. That’s when prosecutors released the FBI report, among 88 pages on Cook’s history, court papers said.

According to Beers, “Prosecutors hid from the trial judge many relevant facts, including the officer’s indecent exposure and masturbation,” in front of the witness.

Needless to say, Cook’s behavior and subsequent removal from his position as an investigator would have constituted substantial impeachment evidence.

Judge Moon has yet to rule on Burns’ motion for a new trial.

In addition to what was apparently a serious act of prosecutorial misconduct and the apparent misleading of the tribunal, there is one further element of the case to note.

As we discussed in a post earlier this week, prosecutors’ ethical obligations to disclose evidence favorable to the defense are in many states, including Virginia, considerably broader than their legal obligations under Brady.

In this instance, federal prosecutor Ashley Neese asked the judge in a sealed motion how much of Cook’s conduct she needed to disclose, the judge instructed her to turn over everything, and it appears she then violated that order.

Arguably, however, her ethical violation occurred before she even filed her motion with the judge.  Under the Virginia State Bar Association’s Legal Ethics Opinion 1862, that state’s disclosure rule “is not limited to ‘material’ evidence, but rather applies to all evidence which has some exculpatory effect.”

As the issue of prosecutorial conduct and accountability begins to reach further into the public consciousness, it is time for those who are engaged on this subject already to recognize the subject need not begin and end with judicial findings of misconduct. Attention can and should be expanded to include violations of ethical rules, even when those violations, under current legal doctrine, are deemed to have no “material” effect on the outcome of a trial.

Ashley Neese should never have filed her motion in the first place. As an ethical matter, she should have done of her own volition what the judge later ordered her to do: disclose the evidence in her possession that would clearly be helpful to the defense. As a member of the Virginia bar, that duty is part of the oath she swore.

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