Federal Prosecutor Withholds Evidence, Begs for Leniency
In Boston, Assistant US Attorney Suzanne Sullivan admitted withholding evidence that a cop changed his story in a gun case and begged the Judge at a hearing yesterday not to impose sanctions against her.
It only came to light because the Judge reviewed her notes of interviews with the cop.
She's been a federal prosecutor for three years and was a state prosecutor for 11 years before that. She's a member of the United States Attorney's Organized Crime Task Force. In other words, she's no rookie and she knows the law.
The Judge, while noting she has admitted the mistake and that it was not intentional or strategic, has taken the matter under advisement, stating it's hardly the first such lapse in the Boston U.S. Attorney's office: [More...]
Judge Mark L. Wolf said he was considering several sanctions because he was so appalled by Sullivan's lapse and by what he characterized as a pattern of prosecutors in the US attorney's office withholding evidence. The sanctions ranged from fining her personally -- something prosecutors said would be a first by a federal judge in the country for a lapse of Sullivan's type to an order that she and perhaps all 90 prosecutors in the office undergo additional training about the constitutional duty to share such evidence.
....Wolf wrote US Attorney General Eric H. Holder Jr. last month to ask him to crack down on prosecutors who fail to disclose information that could clear defendants and repeated his past assessment that the Boston office has a "dismal history of intentional and inadvertent violations.'' Wolf wrote that similar appeals he made to Holder's predecessors in recent years achieved little.
What would have happened if the Judge hadn't reviewed her notes? How often do Judges even do that? The only reason the Judge got the notes in this case was because Sullivan turned them over after discrepancies arose in two officers' affidavits submitted in opposition to the defendant's motion to suppress.
One cop claimed to have met with AUSA Sullivan alone while another said he and the other cop met with her together. She told the court she met with them together and prepared both their affidavits. She sent the judge her notes ex parte to support her contention. It was the Judge who noticed her notes contradicted the cop's statements and were favorable to the defense. Only after the Judge pointed out the problem, did she disclose her notes with the inconsistencies said to the defense.
Sullivan failed to disclose that a Boston police officer's testimony at a pretrial hearing contradicted what the office had repeatedly told the prosecutor beforehand. The defendant was Darwin E. Jones, a Mattapan man who was arrested in July 2007 in a Boston gun case.
The truth only came to light, according to Wolf, when the judge reviewed Sullivan's notes of her interviews of the police officer, Rance Cooley.
Here's some of what the Judge wrote in his Jan. 21 order demanding Sullivan and her superiors show cause why sanctions shouldn't be imposed (Available on PACER):
On August 12, 2008, the court held a conference concerning the motion to suppress. In explaining the government's position, Sullivan stated that there was reasonable, particularized suspicion to stop the bicyclist when he left Middleton Street because Cooley then knew the man was Jones and flight was contrary to Jones' behavior in all of their previous encounters.1 After the court observed that in many respects the affidavits of Cooley and Cameron were identical, Sullivan explained that she had met with them together and drafted the affidavits. Counsel for Jones explained that from the defendants's perspective, the motion to suppress raised important issues of credibility, particularly concerning the claim that Jones assaulted Cameron and, therefore, that there was probable cause to arrest and search him.
Despite the government's objection, the court scheduled for October 27, 28, and 29, 2008, a hearing at which testimony would be taken because possibly material facts were in dispute. The court orally ordered the government to produce to the defendant, by October 10, 2008, all material exculpatory information. It reminded Sullivan that the duty of disclosure was a continuing one, and that if in the future a witness said anything inconsistent with his or her prior statements, the government had a duty to disclose the inconsistent statements. Sullivan stated that she understood her continuing duty to disclose inconsistent statements.
On October 24, 2008, Sullivan met with Cooley again. Cooley reiterated that he did not determine that the bicyclist was Jones until Jones was on the ground between Marden Avenue and Middleton Street.
At the outset of the suppression hearing on October 27, 2008, Sullivan stated that she had, by October 10, 2008, produced to the defendant all exculpatory information. This was not true. She had not informed Jones that, contrary to the contention in the government's Opposition and in Cooley's affidavit and anticipated testimony, Cooley had on several occasions told Sullivan that he did not identify the bicyclist as Jones on Middleton Street.
However, on October 28, 2008, Cooley repeatedly testified that on Middleton Street he immediately recognized the man on the bicycle as Jones. See, e.g., Oct. 28, 2008 Tr. at 10-11, 13, 114, 141. He also testified that the sole reason that he was intent on catching the man on the bicycle was that Jones had never fled from him before. Id. at 94-5, 135-36, 141-42.
Contrary to Sullivan's representation on August 12, 2008, Cooley claimed that Cameron was not present when he met with her to prepare his affidavit. Id. at 51. Therefore, the court ordered Sullivan, who had been joined by her supervisor Herbert, to review her notes to determine whether they included any exculpatory information that was required to be disclosed to the defendant under Brady v. Maryland, supra, Kyles v. Whitley, 514 U.S. 419 (1995), and related cases, including any information that would impeach Cooley's testimony that he met with Sullivan alone. Oct. 28, 2008 Tr. at 66, 72.
Later on October 29, 2008, Sullivan sent the court a copy of her notes for ex parte in camera review. On October 29, 2008, Sullivan explained that she had reviewed her notes and in her opinion there was no information in them that was required to be disclosed. She stated that the government had provided the notes for the court's review only "out of an abundance of caution." Oct. 30, 2008 Tr. at 112, 114.
After the court pointed out that a very brief review had indicated several possibly important discrepancies between Cooley's testimony and what he had previously told Sullivan, Sullivan provided a copy of her notes to Jones' counsel.
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.
The buck has to stop somewhere. More than sanctions, my concern is how to prevent this from happening again. Surely judges are not going to demand to review all prosecutor interviews in camera in advance of a hearing or trial. How is the defense supposed to even know there's a problem when the prosecutor doesn't come forward with the truth? As the judge wrote:
As described in this Memorandum, in an effort to justify the seizure of Jones, the government argued, and Boston Police Officer Rance Cooley falsely testified, that there was justification to stop Jones because, despite the dark and the distance between them, he identified Jones as he rode his bicycle down Middleton Street in Dorchester, Massachusetts. Cooley testified that his suspicions were raised when Jones pedaled away from him because Cooley knew Jones and Jones had never avoided Cooley before.
However, Cooley had on several earlier occasions told the lead prosecutor in this case, Suzanne Sullivan, that he did not recognize Jones on Middleton Street and did not identify the man who had been on the bicycle as Jones until later, when other officers had tackled Jones at another location.
Cooley's important inconsistent statements were not disclosed to Jones until the court conducted an in camera review of Sullivan's notes, just before the suppression hearing was complete. Sullivan and her supervisor, James Herbert, acknowledge that Cooley's prior inconsistent statements constituted material exculpatory evidence, and that the failure to disclose them violated the government's constitutional duty under Brady v. Maryland, 373 U.S. 419 (1963), its progeny, and the court's orders.
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.
....the violations were clear and inexcusable. If the error by an experienced prosecutor was 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.
Now here's the kicker. What about the cop who, according to the Judge, repeatedly lied in his affidavit and court testimony, and whom the Judge notes, had also lied in at least one other case?
The court recognizes that the question of whether to prosecute the law enforcement officers for their false testimony in this case is a matter of prosecutorial discretion.
The last two pages of the Court's Jan. 21 memorandum consist of other cases in which the Boston U.S. Attorney's office withheld evidence.
These prosecutors don't need more training, they need sanctions. They need to know that if they violate their duties of fair and ethical and constitutionally mandated disclosure to the defense, they will be punished.
So yes, sanctions are a first step. And a necessary one. But the problem goes deeper.
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