S.D.W.Va.: AUSAs apparently failed duty to court to mitigate this Brady/Giglio issue before it reared its head

The court’s finding of the officer’s recklessness in this search warrant affidavit leads the government to file a motion to reconsider, presumably because it will become Brady/Giglio material in future cases as to the officer. Not only is that denied, the AUSAs in this case failed their duty to head this off before it blew up in court. United States v. Lark, 2022 U.S. Dist. LEXIS 33664 (S.D.W.Va. Feb. 22, 2022) (under the category of “watch what you ask for” or “no good deed goes unpunished”*):

While the reconsideration issue does not require further analysis, the myriad events in this case, including this motion and its supporting exhibits, convince me that I have an obligation to say more about the roles we each play in protecting the integrity of our criminal justice system. The oaths of office taken by police officers, prosecutors, lawyers, and judges each have the central promise to uphold the Constitution of the United States. It is the common bond necessary to bind together this participatory democracy. Neither the police, the prosecutor, nor the judge may cast the personal burdens imposed by their oaths of office upon one of the others.

In the first instance, a police officer must act with regard to his trained understanding of the constitutional strictures upon his official behavior. The prosecutor, acting under the same sworn obligations, must discourage police misconduct and even punish it where necessary. The widespread notion that it is for judges alone to decide the constitutionality of an act or statute is simply wrong. It is not for the prosecutor to minimize unconstitutional conduct or advocate for ignoring such behaviors to curry favor or enhance the relationship between police departments and prosecutor’s offices. Rather, a prosecutor should work with the police to ensure the practical and proper application of constitutional principles. When prosecutors overlook, tolerate, or fail to intervene in the Constitutional failures of law enforcement, they abdicate the responsibilities imbued by their oaths of office.

Under their constitutional oath, prosecutors have an independent responsibility to evaluate the legitimacy of the evidence they put forth to make their case. In that regard, they should analyze whether the evidence was gathered constitutionally and not focus solely on the question of the likelihood of admissibility. See Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591, 1595 (2014). The Assistant United States Attorneys should have learned there were glaring problems with important evidence in this case when they presumably talked with Det. Daniels in preparation for the suppression hearing. Instead, the Assistant United States Attorneys did not either recognize or address the problems with the warrant until Det. Daniels’s testimony at the hearing, after which they nevertheless filed briefing arguing that the term “delivered” could fairly describe a situation where no delivery occurred. Attached to that briefing they filed the audio recording of the controlled delivery attempt excerpted above, which is clearly damning of Det. Daniels. Most recently, they filed a superseding indictment which removed the firearm charges and added a new charge, attempted possession of methamphetamine and fentanyl on March 17, 2021, the date of the attempted controlled delivery. [ECF No. 75]. It is surely apparent to the government that their concern with the damage to Det. Daniels’s career would have been alleviated had these actions been taken when they first learned of the evidentiary problems.

Every Assistant United States Attorney is taught that the prosecutor’s role transcends the role of adversary. The United States Attorney “is the representative not of an ordinary party to a controversy, but of a sovereignty … whose interest … in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). This brings me finally to the actions of the United States Attorneys Office in preparation for this motion to reconsider. In an event unique to me in my half-century as a lawyer and as a judge, the Assistant United States Attorney sent two investigators to interview the state magistrate judge who issued the search warrant for Mr. Lark’s home. Those investigators questioned the magistrate judge regarding his judicial decision-making process, then wrote that process down in a memorandum that the government filed as an exhibit to this motion. See generally [ECF No. 66-1].

The Assistant United States Attorney’s decision to interview a judicial officer and the judge’s decision to entertain the interview are both improper. It is inherently intimidating to send federal officers to question a state magistrate judge, and it is clearly out of bounds for the magistrate judge to provide the interview regarding his judicial decision-making in a matter pending before this court. There are other serious concerns brought to light in the report of the magistrate judge’s interview. See id. I will leave those to the West Virginia Office of Judicial Disciplinary Counsel and the West Virginia Supreme Court of Appeals. Moreover, I am anecdotally aware of the unusual number of suppression motions that have been granted in this district in the past two years. I defer to the new United States Attorney to review this area of concern.

*“No good deed goes unpunished.” Winter v. NRDC, Inc., 555 U.S. 7, 31 (2008); Ferguson v. City of Charleston, 532 U.S. 67, 103 (2001) (Scalia, J., dissenting).

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