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If you have read any news about U.S. v. Swenson—a recent federal Fifth Circuit ruling—you saw that the district court judge made some sexist comments to the Government’s lawyers before dismissing the case. And, if you read the Fifth Circuit’s opinion, you may have been left with a firm impression that the prosecutors did nothing wrong. What you may have missed, and what bears strong emphasis, is that the Government’s lawyers actually failed on multiple occasions to comply with their discovery obligations. The district court judge—the one who presided over pre-trial matters for some three years—found that the prosecution’s discovery failures had “destroyed” the “integrity of the prosecution.” For that reason, the lower court dismissed the indictment with prejudice. However, from the Fifth Circuit’s perspective, that decision was problematic. Embracing a “better late than never” principle, the Fifth Circuit let the prosecutors off the hook, reinstating the indictment and reassigning the case to a new judge.

The defendant in the federal prosecution, Simone Swenson, was charged with committing fraud in the operation of her adoption agency. On the Government’s theory of the case, Swenson duped prospective adoptive families by being extremely responsive to them until the she collected the agency’s fees; once the money changed hands she would fall out of contact almost completely. A key source of information turned out to be the e-mail communications between Swenson and the families. When the prosecution had trouble executing a subpoena of the email service provider, it asked the families themselves to, as the Fifth Circuit put it, “send anything they thought was relevant.”

As any sensible person would, the defendant objected, arguing that the emails were not authenticated and that the Government was outsourcing its responsibility to review the evidence and disclose anything exculpatory in accordance with its constitutional obligations under Brady. After the court signed search warrants to enable the prosecution to collect all of the emails, the Government dumped a large number of documents on the defense shortly before trial. The defense initially contemplated getting a continuance, but instead decided to move forward with the scheduled trial date. But, a few days later—and just three days before trial—the defense located a police report that contained potentially exculpatory information. Upon being contacted by the defense lawyer, the prosecution turned over still more reports it had not yet shared, and these contained even more exculpatory information. The defendant filed a motion to dismiss the case based on the State’s violations of Brady, the rules of criminal procedure, and the trial court’s discovery orders.

It turned out that the prosecution had the relevant police reports in its possession for years without turning them over. Frustrated that the Government had on multiple occasions failed to fulfill its obligations, the district court dismissed the case with prejudice. On the prosecution’s motion for reconsideration, the court wrote: “Over the course of four pretrial conferences—within ten days of trial—the government represented that it had turned over all evidence. Each time it later disclosed new evidence of exculpatory and impeachment materials. . . . Because the integrity of this prosecution has been destroyed, the government’s motion for reconsideration is denied.”

On the Government’s appeal, the Fifth Circuit reversed the ruling early this month. First, the Court held that there could have been no Brady violation because Brady requires suppression of evidence, and the prosecution did not suppress any evidence here. If that strikes you as terribly surprising, recall that technically speaking, the Government did meet the disclosure requirement because the defense obtained the exculpatory evidence before trial. The Court explained that delayed disclosures do not present a problem so long as the defendant has an opportunity to utilize the information at trial. Although Swenson pointed out that her entire trial strategy might have been different and she would have conducted additional investigation if the Government had produced the documents earlier, the Court found this argument “too speculative,” contenting itself with speculation of its own: “Swenson probably could have used the evidence effectively at trial.”

Second, the Fifth Circuit found that the Government’s discovery violations did not warrant the sanction the district court imposed. It reached this conclusion despite the “broad discretion” that district courts are meant to enjoy when it comes to punishing parties for discovery violations. According to caselaw, the court should have imposed the least severe sanction that would have accomplished the desired result. Here, the Fifth Circuit held that a continuance would have been sufficient, and noted that the district court did not explain why a continuance was inappropriate or insufficient.

Finally, the Fifth Circuit held that the last potential basis for the district court’s ruling—egregious prosecutorial misconduct—was not met in these circumstances. It found that the district court did not expressly find the prosecution acted in “bad faith.” Instead, “it seems the district court attributed the government’s mistakes to the prosecutor’s sex.” This finding turned on a comment the Government clipped from one of the transcripts in which the court said, “It was lot simpler when you guys wore dark suits, white shirts and navy ties. . . . We didn’t let girls do it in the old days.”

Of course, this is the finding that the media picked up. And, if the comment was directed at the female prosecutor, there would be no question that it was sexist and problematic. However, consider what the judge said when asked for his comment:

“As the transcription shows, after I addressed the prosecutor I talked to an FBI agent about poorly dressed agents,” Hughes said. “The prosecutor supplied a quotation to the court of appeals that had been cut to make it appear that I was talking to her. The remark derogated no one. It was about the exclusion of women historically. Then and now I do not approve of their exclusion. Incidentally the defense lawyer, government lawyers and FBI agent were all women.”

The flimsiness of the Fifth Circuit’s finding is evident within the opinion itself. Footnote 3 explicitly acknowledges the possibility that the district court was not even addressing the prosecution with his comment: “Swenson’s counsel contended that the record is ambiguous and perhaps the district court was speaking not to the prosecutors, but to other women present at the hearing. Regardless, such comments are demeaning, inappropriate, and beneath the dignity of a federal judge.”

Rather than punish the judge for his purported sexism, the Fifth Circuit instead lavished the Government with rewards. Not only did it reinstate the indictment, but it also reassigned the case, ordering that another judge preside over the follow-up proceedings. This is nothing short of a windfall. Considering that the prosecution had repeatedly frustrated the previous judge with its ineptitude, intransigence, and/or deception, the U.S. Attorneys whose reputations should be called into question are instead reaching for champagne bottles.

If that were not enough, the Fifth Circuit went further to defend the prosecution’s honor, writing that in its review of the record “we found nothing to suggest that the prosecution intentionally withheld the documents or acted in bad faith.” This is a remarkably prosecutor-friendly reading of the record. After all, when a crime happens, judges and jurors are told that the defendant can be presumed to intend the natural consequences of his actions. Is the same not true for prosecutors? Doesn’t the fact that the documents were not disclosed at least suggest the prosecutors intended not to disclose them? Evidently not. The prosecutor covered herself simply by walking into court and claiming that she did not “remember” downloading the suppressed reports. Defense lawyers be warned, the “I don’t remember” defense only works for prosecutors, not criminal defendants or their advocates.

While it looks like the Fifth Circuit panel reached an outcome-driven result by capitalizing on a judge’s sexist or careless comments (perhaps doctored in their presentation to the appellate court by the Government’s lawyers), some doctrinal lessons emerge:

  1. Brady continues to be more bark than bite. The fact that so many courts excuse excessively-delayed disclosures when prosecutors turn information over to the defense in a flurry right before the trial is disheartening.
  2. One major hurdle in these delayed-disclosure cases is that courts put the burden on the defense to prove that the delay prejudiced them. It then discounts any argument made on the basis that it is speculative. Why should the defense bear the burden when the Government has either intentionally gamed the system or unintentionally failed to meet its obligations? A simple doctrinal tweak would be to flip the burden and require that the State prove the defense was not prejudiced.
  3. Deference is a slippery concept at best. Here, the Fifth Circuit determined that the district court committed an “abuse of discretion.” Such abuses are rare, and this certainly did not look like one. Appellate courts typically defer to lower courts. Except when they don’t.
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