The First Circuit Court of Appeals decision in United States v. Barry Spencer didn’t accomplish what appellant sought, the holding that an intentional failure to reveal Brady evidence was “material,” an oddity of hubris that provides an incentive to conceal Brady material in the hope that, in the off chance the concealment is discovered, it will still have to overcome a three-prong test before resulting in a reversal. And even if it does, the worst that can happen is a Mulligan, compelling the prosecution to do what the law “required” it to do in the first place.
Unless your name was John Wortmann, in which case there was one thing that turns Barry Spencer’s loss into yours as well.
In response to that assertion by Spencer, the Assistant United States Attorney (“AUSA”) in charge of Spencer’s prosecution, John Wortmann, revealed that, in fact, he had telephoned Rimkus on April 3, 2014, to inform her about the error in the first certificate with respect to the date of incident. Wortmann explained that Rimkus had no knowledge of the actual date of incident and that Rimkus had simply relied on the BPD to supply that information. Specifically, Wortmann stated that “[t]he lab doesn’t know where the drugs — what date the drugs [were] purchased. They can’t possibly know that. And the clerical error was committed when the drugs were submitted [by the BPD] to the lab.” As a result, Wortmann stated that he had simply contacted Rimkus to correct a “clerical error” on the drug certificate “because the drug lab would have no basis for knowing one way or the other.” Wortmann suggested that he had also sent a follow-up e-mail to the BPD after the phone call with Rimkus.
Wortmann, Wortmann, Wortmann. And plenty more Wortmann where that came from.
No doubt, Spencer could have seized on the evidence that Wortmann contacted Rimkus and had her correct one aspect of the certificate that she prepared — the date of incident — to suggest that the control number was “incorrect or even manufactured.”
A material concealment, but not quite material enough to call a do-over. Spencer loses, but Wortmann’s name is all over the decision, because Wortmann did it. He played “hide the Brady” and got nailed. His office was outraged.
A week after the court of appeals’ decision, the USAO for the District of Massachusetts filed “Petition for Panel Rehearing (Motion for Modification of Opinion).”
The motion asked the court to remove Mr. Wortmann’s name from the opinion because the court had concluded that he had not committed any misconduct and keeping his name in the opinion might suggest otherwise.
The USAO argued that the court generally does not identify lawyers who commit misconduct (it cites cases involving only prosecutors). It then argues that the court “did not find a Brady violation or any instance of misconduct.”
That sound you hear is Wild Bill Douglas chuckling up above, having given just enough to wet the whistle of a right honored at most in the breach. But naming and shaming the prosecutor who committed the “imperfect” Brady violation? Was this case so egregious, so awful, that it compelled the outing, the humiliation, of AUSA John Wortmann?
In fairness, this wasn’t the worst Brady violation by a long shot. Think Sen. Ted Stevens for an easy comparison. And then there was the holding that this Brady violation, though material, was not sufficiently material to conclude that its disclosure would have probably resulted in a different outcome. So no harm, no foul, and yet the Circuit hung poor Wortmann out to dry in its opinion.
This injustice could not stand, so they sought erasure of poor Wortmann’s name from this opinion. The First Circuit agreed.
The opinion of this Court issued on August 23, 2017 is amended as follows:
On page 14, line 12, replace “prosecution, John Wortmann,” with “prosecution”
On page 14, line 15, “Wortmann” with “The AUSA” On page 14, lines 17 and 21, replace “Wortmann” with “the AUSA”
On page 15, line 1, replace “Wortmann” with “The AUSA”
On page 15, lines 14, 15, 18, and 22, replace “Wortmann” with “the AUSA”
On page 18, lines 16 and 18, replace “Wortmann’s” with “the AUSA’s”
On page 18, line 20, replace “Wortmann” with “the AUSA” (twice)
On page 19, line 4, replace “Wortmann’s” with “the AUSA’s”
On page 21, line 15, replace “Wortmann” with “the AUSA”
On page 22, line 9, replace “Wortmann” with “the AUSA”
On page 25, line 18, replace “Wortmann’s” with “the AUSA’s”
On page 36, line 1, replace “Wortmann” with “the AUSA”
And now no one, but no one, will ever know that the miscreant who committed the Brady violation was an AUSA named John Wortmann. Was his conduct so bad that he deserved to be named and shamed? That’s a matter of one’s personal sensibilities, and some might suggest that the facts speak for themselves. What makes a prosecutor’s good name more valued than anyone else’s? Particularly a prosecutor who was found to engage in the very conduct for which he’s castigated?
If it is factually accurate that Wortmann deliberately concealed Brady material, why should he not be named? After all, it’s not as if others who are far more innocent of wrongdoing aren’t prominently named in appellate opinions.
Will defendants who are acquitted at trial be entitled to have their names redacted from all documents on the docket? After all, they too have been found not to have done anything wrong and those documents could be read as a “strong rebuke,” which would be “unduly severe” to an exonerated defendant.
Heh. We all know that’s not happening.
But prosecutors enjoy a certain level of protection, of deference, that few others enjoy. Defendants don’t. Witnesses? Nope. The defense lawyer? Not even close. But prosecutors are special, doing the harsh work that society demands of them, and so they receive a degree of special treatment, including the redaction of their name from opinions describing their commission of Brady offenses, unless their conduct is so egregious, so horrible, that the court feels compelled to name and shame as an example to others.
John Wortmann, in the view of the First Circuit Court of Appeals, did not commit a violation so egregious, so terrible, that it was necessary to name and shame him. And so his name will not appear in the opinion when published in the official reports. Now that you know, you should forget you ever read the name John Wortmann. It was just “the AUSA.” The court stands corrected.