A suppression hearing in the District of Massachusetts was fraught with a Brady/Kyles violation because of the officer’s inconsistent versions and admission to the prosecutor that he did not first see the defendant to identify him, yet the government’s pleading said he could. The AUSA was ordered to turn over her notes to the court for review, and they were given to the defense. Evaluating all the evidence now, the defendant loses on the motion, but the court orders review of a sanction against the AUSA. United States v. Jones, 609 F. Supp. 2d 113 (D. Mass. 2009) (opinion remarkably not on the court’s website):
On October 30, 2008, Jones’ counsel pointed out the many times reflected in Sullivan’s notes that Cooley had told her that he did not identify the man on the bicycle as Jones on Middleton Street. These prior statements directly contradicted the assertion made in the government’s Opposition to the motion to suppress, and in Cooley’s affidavit and repeated testimony. Cooley’s claim that he recognized Jones on Middleton Street was important to the government’s contention that there was reasonable suspicion to chase and stop Jones when he first pedaled away from the approaching officers.
Rule 116.2(A)(2) of the Local Rules of the United District Court for the District of Massachusetts defines exculpatory information as including “all information that is material and favorable to the accused because it tends to … [c]ast doubt on the admissibility of evidence that the government anticipates offering its case-in-chief …” It has been long and clearly established that exculpatory information includes information that is potentially useful in impeaching government witnesses, as well as information that directly tends to negate guilt. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); United States v. Misla-Aldarondo, 478 F.3d 52, 63 (1st Cir. 2007). Both Sullivan and Herbert, who reviewed her notes before they were submitted to the court for in camera review, now admit that the government made an error in not, by October 10, 2008, disclosing the many, various statements inconsistent with Cooley’s affidavit and anticipated testimony that were memorialized in Sullivan’s notes. See Oct. 30, 2008 Tr. at 117, 119, 124-126.
This error had the potential both to injure the court’s ability to find the facts properly and to violate Jones’ right to due process. See Giglio, 405 U.S. at 154. That potential might have been realized if the government’s argument against holding an evidentiary hearing had been persuasive. However, the error was discovered in the course of the suppression hearing. Cooley was recalled to testify further and was thoroughly cross-examined based on the information revealed by Sullivan’s notes. See Oct. 30, 2008 Tr. at 29-41, 48-50. The government has since abandoned its reliance on the claim that justification to stop Jones existed because Cooley recognized him on Middleton Street and regarded his flight as suspiciously inconsistent with Jones’ conduct on prior occasions.
Therefore, this case is analogous to United States v. Osorio, which the First Circuit in 1991 characterized as involving “the recurring problem of belated government compliance with its duty to provide timely disclosure of exculpatory evidence,” caused in Osorio by “astounding negligence.” 929 F.2d 753, 755 (1991). “When dealing with cases of delayed disclosure ‘the critical inquiry is … whether the tardiness prevented defense counsel from employing the material to good effect.'” Id. at 757 (quoting United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990)). In the instant case, Jones eventually received the information to which he was constitutionally entitled and his counsel used it effectively to impeach Cooley’s testimony thoroughly. Therefore, Jones has not been prejudiced.
Nevertheless, the court is considering whether to impose sanctions on the government and/or the lead prosecutor, Sullivan. Generally, the supervisory powers of the court should not be used to redress harmless error. See United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993). However, “the use of supervisory power to dismiss an indictment, in the absence of injury to the defendant, may not be entirely a dead letter … [the Supreme Court has left] open the possibility that the goal of deterring future misconduct would justify using the supervisory power to redress conduct not injuring defendants if the conduct is plainly improper, indisputably outrageous, and not redressable through the utilization of less drastic disciplinary tools.” Id. (citation omitted).
The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government’s duties to disclose in cases assigned to this court. However, this court has long shared the view expressed in United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981), that generally a defendant should not be rewarded, and the public should not be punished, for a prosecutor’s violation of constitutional and ethical duties that do not prejudice the defendant. See United States v. Kelly, 543 F. Supp. 1303, 1313 (D. Mass. 1982) (quoting Deputy United States Attorney Mark. L. Wolf). Rather, in some such cases a sanction should be imposed on the prosecutor personally. Id.
. . .
In any event, the court is considering imposing sanctions on Sullivan. The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court’s in camera inspection. Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of or utter indifference to the constitutional duty she repeatedly claimed to have understood and obeyed. This court is consequently concerned that similar representations by other federal prosecutors are not reliable.
Accordingly, Sullivan and the United States Attorney are being ordered to file affidavits seeking to show cause why she should not be sanctioned in order to punish her misconduct and to attempt to send an important message to her colleagues. The court will also consider whether the imposition of additional sanctions on the government are necessary or appropriate.
See NLJ’s Federal judge considers sanctions for Boston U.S. attorney’s office.
