A Right Buried in Reams of Paper

Buried in Section F of the 4th Circuit’s opinion in United States v. Bartko, an affirmance of the defendant’s securities fraud conviction, is this astounding discussion of the United States Attorney for the Eastern District of North Carolina’s Brady practices. It would be wrong to use only excerpts in this instance, and so I quote the section at length:

Having analyzed the Brady and Giglio issues that Bartko raises, we pause here to address the discovery practices of the United States Attorney’s office in the Eastern District of North Carolina. A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district. See, e.g., United States v. Flores-Duran, No. 11-5167, 2013 WL 3286248, *2-4 (4th Cir. July 1, 2013) (noting that (1) “[d]uring the week prior to trial, . . . the [g]overnment sent over one thousand pages of additional discovery, the bulk of which was due no later than fourteen days prior to trial” and that the government argued its “discovery violation” was excusable because it “misread[] . . . the discovery order; a power outage [occurred] at the courthouse in Raleigh; and [it made a] last minute decision to present certain evidence” and (2) that on the Saturday immediately prior to the Monday on which trial was to begin, the government faxed key information obtained approximately twenty-four hours earlier to defense counsel’s office, but it did nothing to ensure that counsel received the fax, even though it sent the information outside of normal business hours); United States v. Burkhardt, 484 F. App’x 801, 802 (4th Cir. 2012) (considering a defendant’s appeal of his civil commitment as a sexually dangerous person and citing as a “matter of concern” the government’s failure to disclose prior to the commitment hearing that one of the defendant’s victims would testify); United States v. King, 628 F.3d 693, 701-04 (4th Cir. 2011) (vacating and remanding the defendant’s conviction for felony possession of a firearm because the government “specifically rebuffed both . . . written and oral demands [by the defendant] that it disclose” potentially exculpating grand jury testimony and “refused to disclose” the testimony, even after the district court “suggest[ed] that it do so”). And this case, which confronts us with three alleged constitutional violations—two instances of withholding discoverable evidence and one choice to leave uncorrected a witness’s false testimony—only adds to the list.

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. Cf. Oral Argument at 24:50-25:10, Flores-Duran, 2013 WL 3286248 (No. 11-5167), available at http://www.ca4.uscourts.gov/OAaudioop.htm. (referencing the government’s late disclosure of pages of discovery in violation of the judge’s discovery order and stating, “This is a repeat offense by the government. The order is entered by the court requiring disclosure by a certain date, and the government simply ignores it. And their explanation for ignoring it is, ‘I missed it. So what. There’s no prejudice.’ And it just happens again and again.”). Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” Oral Argument at 21:54-21:56, United States v. Bartko (No. 12-4298), available at http://www.ca4.uscourts.gov/OAaudiotop.htm. Similarly artless responses have been given in other cases. See, e.g., Oral Argument at 11:20-14:30, Flores-Duran, 2013 WL 3286248 (No. 11-5167), available at http://www.ca4.uscourts.gov/OAaudiotop.htm. And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.

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.

And the court’s conclusion about the United States Attorney’s refusal to stop it’s recurring Brady “flubs,” which it inartfully excuses by arguing “mistakes happen, so what?”

Something must be done.

On the one side, a monumental condemnation of the government’s flagrant refusal to honor its obligation under the Constitution to disclose Brady. On the other, perhaps the most horrendous displays of impotence by a United States Court of Appeals ever.

Moreover, if this sort of behavior continues in subsequent cases, this Court may wish to require that the United States Attorney for the Eastern District of North Carolina, as well as the trial prosecutor, be present at oral argument so that the panel can speak directly to her or him about any alleged misconduct. Sanctions or disciplinary action are also options.

And yet every defendant’s conviction is affirmed because the failure to disclose Brady did not undermine the court’s “confidence” that they were guilty.  But the bleeding doesn’t stop here. Lest the Circuit’s admonishment of the fine men and women prosecutors hurt anyone’s feelings, it adds:

We do not mean to be unduly harsh here.

But the court had no choice, faced with the rampant and recurring concealment of Brady and Giglio.

Whatever it takes, this behavior must stop.

Or what? After the 100th time the government has been caught doing the dirty, the Chief Judge will snap his fingers in a Z shape and lecture the prosecution on the importance of being earnest? What it takes is a court with the balls to do its job and uphold the defendant’s constitutional rights, even if it’s absolutely sure the defendant is guilty. That could have happened at any time, and this time. And yet it didn’t.

H/T Marilou Auer


9 thoughts on “A Right Buried in Reams of Paper

  1. Steven Warshawsky

    I think this decision, with it’s seemingly serious yet ultimately toothless reprimand of the USAO’s flagrant misconduct, undermines one’s faith in the justice system much more than the misconduct itself. What a depressing commentary on the unchecked power of the government to run roughshod over the constitutional rights of the people.

    1. SHG Post author

      Rarely has rhetoric made the point as clear as this opinion. But it’s not the point the court intended. What a disgrace.

  2. obcordate

    Your blog is like birth control for prospective law students. Everytime I get that itch to pull out my credit card and register for the LSAT I like to stop by and remind myself why, obvious intellectual infermities aside, I don’t have the temperament to be a CDL.

  3. Jack

    I can’t help but feel overwhelmed with pride by my local US Attorney Office’s steadfast commitment to upholding the principles of Brady and Giglio and unwavering defense of the Constitution in this bastion of enlightenment… oh… fuck me… they did it again….

  4. Nigel Declan

    Putting aside the question of political will or what the Supremes might think, could some sort of system whereby all documents in the possession of the prosecution must be given to an independent, third-party (one not involved in any given prosecution) who will make an independent assessment of what is material under Brady? Even if this was not universal, it could be something imposed on DA or USDA offices which have a history of Brady abuses. In theory, the requirement that all documents be given to a non-prosecutor (probably a judge or former judge) to assess Brady would remove from prosecutors the discretion to make self-serving decisions as to what the defense is entitled.

  5. Rick Horowitz

    “Whatever it takes, short of actually doing anything, or putting teeth into it — in other words, anything other than the judiciary doing its constitutional duty — this behavior must stop.”

  6. Rob Robertson

    Thomas G. Walker was appointed by President Barack Obama to serve as United States Attorney for the Eastern District of North Carolina. He was unanimously confirmed by the United States Senate and took the oath of office from Chief United States District Judge James C. Dever III. As United States Attorney, Mr. Walker oversees all federal criminal and civil matters in the 44 eastern counties of North Carolina. His staff includes approximately 43 Assistant United States Attorneys and 57 support personnel.

    Mr. Walker previously served as an Assistant United States Attorney, an Assistant District Attorney and as Special Counsel to the North Carolina Attorney General. He was also a Partner with the law firm of Alston and Bird, LLP, where he was a member of the firm’s Government Investigations and Litigation Practice Groups.

    Mr. Walker received his B.A. from Baylor University and his J.D. from Campbell University School of Law, where he served as Editor-in–Chief of the Campbell Law Review He is originally from Waynesville, North Carolina.
    If he has future ambitions with the US Government that require confirmation, he may want to think about doing something about it.

    Crap!, what am I thinking? Prosecutors aren’t really held to account that much. He’ll probably be a judge soon and not have to worry about Brady anymore…

    1. SHG Post author

      Much as I appreciate the research, I’m pretty sure all of the instances involved in this case happened before Walker became US Attorney.

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