By Sara Kropf

A year ago, I wrote a post lamenting the fact that prosecutors get every benefit of the doubt when it comes to whether they committed intentional Brady violations. My point was that judges routinely credit weak evidence of a defendant’s state of mind in a criminal case, but they reject strong evidence of a prosecutor’s state of mind in a Brady matter.

A recent SDNY case shows that this pattern is alive and well. Since I’m an optimist, though, I’ve found a few silver linings in how the judge handled the matter (even if I disagree with her ultimate conclusion).

United States v. Nejad has garnered a lot of attention by exposing a serious Brady violation by the U.S. Attorney’s Office in the Southern District of New York. The judge wrote an opinion in September 2020 and then issued a new opinion in February 2021. A quick summary of the facts:

The government indicted Mr. Sadr in in 2018 for conspiracy to defraud the United States, conspiracy to violate the International Emergency Economic Powers Act, bank fraud, bank-fraud conspiracy, and money laundering. A jury found him guilty in March 2020. While Mr. Sadr’s motion for judgment of acquittal was pending, a motion that raised the Brady issues, the government asked the court to enter an order of nolle prosequi (basically, an order the government decided not to prosecute him). Eventually, the indictment was dismissed with prejudice.

It’s honestly hard to emphasize how rare this request is. The government obtained a conviction and then realized its Brady problems were so serious that the convictions would likely be dismissed by the court. So it asked for dismissal itself. This just doesn’t happen.

There were a few different Brady violations here but the primary one concerned a government exhibit referred to as “GX 411” (Government Exhibit 411). GX 411 was a letter sent by an overseas bank to the Office of Foreign Assets Control. The government had the document since 2015. It was turned over during the March 2020 trial. Every prosecutor working on the trial had a copy of GX 411 since at least January 2020.

Most damning, when the prosecutors decided to use the letter at trial and realized they had failed to produce it during discovery, their response was not to make sure the defense saw the document and recognized that it had not been produced before. Rather, one of the AUSAs (Stephanie Lake) wrote an email that “[I]’m wondering if we should wait until tomorrow and bury it in some other documents.” Another AUSA, Jane Kim, agreed with that plan. When they disclosed GX 411 to the defense, the prosecutors failed to inform the defendants that it had never been produced before. (Trust me, when a prosecutor gives you an exhibit in the middle of trial and tells you that you haven’t seen it before, that kind of disclosure gets the immediate attention of the defense. It also means the defense doesn’t have to spend precious hours during trial prep to search for a document in the discovery.)

In September 2020, Judge Nathan wrote a sharply-worded opinion about the Brady problems. She explained:

In this case, federal prosecutors have by their own admission repeatedly violated their disclosure obligations and, at best, toed the line with respect to their duty of candor. Over the course of years in this prosecution—before, during, and after trial—the Government has made countless belated disclosures of arguably (and, in one instance, admittedly) exculpatory evidence. For some pieces of evidence, the Government provides plausible explanations for its late disclosure. For others, it provides no explanation at all. And when the Court pressed for more information about one of these failures, the Government made a misrepresentation to the Court. This serious dereliction requires a serious response.

After reviewing affidavits filed by the prosecutors, the judge issued a second opinion on February 21, 2021, There, the court concluded that the government did not recognize the exculpatory value of the document and thus did not intentionally withhold Brady material. The court reached this conclusion even though it also found that the exculpatory value of GX 411 was plain on its face and was immediately understood by the USAO supervisors when they first saw the document. And it reached this conclusion even though the government had a plan to “bury” the document during trial and had made misrepresentations to the court about its disclosure once caught.

Even though (1) the duck is clearly a duck, (2) the supervisors immediately knew it was a duck when they first saw it, and (3) the line prosecutors wanted to “bury” the duck from the defense in the middle of trial; (4) they misled the court about the duck—the court credited the self-serving affidavits of those prosecutors that they didn’t realize it was a duck back in March 2020.

Um, yeah, ok. Every day, DOJ seeks the conviction of people for obstruction of justice–for trying to hide their wrongdoing. DOJ uses the effort to hide the evidence as evidence that the defendant knew the underlying conduct was wrong. In other words, hiding things is treated as evidence of state of mind, except, apparently, when it comes to prosecutors facing Brady accusations.

What Judge Nathan Did Right

For all of my disagreement with Judge Nathan’s conclusion that the Brady violation was unintentional, she did a lot right here. The procedure she followed is one that other judges should consider when confronted with serious, credible allegations of prosecutorial misconduct. Too often, judges use a process that lets prosecutors avoid having to explain their actions. Prosecutors are entrusted with an incredible amount of power and responsibility. Just as they hold defendants accountable for their actions, they too should be held accountable. The process should be fair, but it should not favor prosecutors.

First, dismissal of the charges should not end the court’s inquiry. As Judge Nathan said in her September 2020 opinion, “the dismissal of charges is not a basis for sweeping the Government’s repeated failures under the rug. Nor does the dismissal of the indictment obviate the need for inquiry into whether the Government intentionally and in bad faith withheld exculpatory evidence or intentionally misled the Court.”

Dismissal of charges is a victory for the defendant, of course, but it should not end the court’s interest in finding out what happened.

Second, courts should engage in fact-finding into prosecutorial misconduct. Having realized that there was a Brady problem and that the government was not truthful in its representations to the court, Judge Nathan did not let the problem go. She said that she needed to engage in fact-finding to figure out what had actually happened. She demanded that the prosecutors file sworn affidavits answering specific questions. Making them answer specific questions keeps the government from avoiding the tough questions. Requiring sworn affidavits means that the prosecutors will investigate what happened carefully and be truthful in their answers.

This case created a lot of work for Judge Nathan. It would have been much simpler for her to think, “the convictions are vacated, so my work is done.” It is a huge credit to her that she stuck with the matter and continued to press for the truth.

Third, credible allegations of prosecutorial misconduct should be evaluated publicly. The affidavits filed by the prosecutors were originally filed under seal. On motion of the media, the judge unsealed them and she was right to do so. She rejected the prosecutor’s argument that this was a “disciplinary proceeding.” As she explained:

The prosecutor declarations, exhibits, and party letters are important to the public’s understanding of the issues before the Court in this case, including both the dismissal of the underlying charges against Mr. Sadr and the Government’s misrepresentation to the Court regarding the disclosure of exculpatory evidence. The Court disagrees with the prosecutors’ position that the documents are exempt from disclosure because the Court’s present inquiry is analogous to a disciplinary proceeding. This is not a disciplinary proceeding. The Court is exercising its supervisory authority over a criminal trial of significant public interest. The public right of access to judicial documents does not evaporate when attorney misconduct is involved. To the contrary, it is in these circumstances that it is most important “to have a measure of accountability and for the public to have confidence in the administration of justice.”

Fourth, there is no reason not to name names in serious cases involving Brady violations. Judge Nathan’s September 2020 decision did not name the prosecutors involved, instead referring to them as “AUSA-1” (this is Stephanie Lake), “SAUSA” (this is Garrett Lynch), and so forth. But in her February 2021 decision, Judge Nathan named the prosecutors. That is the right course. Mr. Sadr’s name is repeated throughout the case. His reputation was ruined by the indictment and his conviction, even though the conviction was vacated.

If a prosecutor committed misconduct, then that his or her name should also be made public. It acts as a deterrent to this conduct. As Judge Nathan explained, the prosecutors did not have a privacy interest in their work emails as they “all relate solely to the performance of their official duties.” In addition, there is no “controlling authority holding that the privacy interests of prosecutors outweigh the public’s right of access to judicial documents concerning prosecutorial misconduct.”

Fifth, referral to the Office of Professional Responsibility is appropriate (not to state licensing boards). Judge Nathan said that she was referring the matter to the Department of Justice’s Office of Professional Responsibility (OPR). OPR’s purpose is “to ensure that Department attorneys perform their duties in accordance with the high professional standards expected of the nation’s principal law enforcement agency.” Judge Nathan could have referred the prosecutors directly to their respective state bars for disciplinary proceedings, but her approach is a wise course as well. It allows internal DOJ (non-partisan) lawyers to investigate what happened.

Sixth, we should all imagine what would have happened if Mr. Sadr did not have incredibly good and tenacious counsel. The result in this case is not only a result of SDNY prosecutors withholding evidence but the fact that Mr. Sadr had aggressive, excellent counsel pressing the issue at every step. Not every defendant can afford this type of representation. Judges should be alert to Brady violations in all cases—not just those where defense counsel from a big law firm presses it.

Prosecutorial Misconduct that May Go Unpunished

We will not know if there is any internal discipline imposed on these prosecutors for this prosecutorial misconduct. OPR conducts its investigations in confidence. This is the right approach since OPR may end up exonerating a prosecutor. (Of course, defendants are acquitted too, but their names are still public throughout the proceedings.)

From the defense side, though, it is impossible not to read this opinion and be mad as hell. I can only think about my own clients who have been convicted of crimes based on far weaker evidence of their supposed state of mind. I’ve had client who deleted an email or two for innocent reasons and the prosecutor basically says, “Aha! He knew what he did was wrong because he deleted the evidence!” Yet these prosecutors are found to have acted unintentionally, even after knowingly engaging in misconduct and then trying to hide it from defense counsel in a carefully-worded email and then sweep it under the rug in front of a federal judge.

I have enough DOJ friends who have convinced me that meeting Brady perfectly is impossible. I accept that. I’ve filed exactly one Brady motion in a case and that motion made clear that the defense believed it was an unintentional violation (the charges were dismissed). It’s a serious matter to accuse a prosecutor of intentional misconduct.

But here’s the simple solution that some USAOs have adopted and that goes unmentioned by the court: have a real “open file” policy. The USAO could produce to the defense everything they obtain by subpoena or from a witness, whether they intend to use it or make a judgment that it is Brady or not. Just give it to the defense with a detailed index of the documents and make the prosecutors identify what they believe to be exculpatory information.

Stop allowing prosecutors decide whether something is relevant and exculpatory. Frankly, they stink at it, plus it’s decidedly unfair to let the fox guard the henhouse.

**Bonus Section** How Is This Conduct “Unintentional”?

Although I’ve mostly focused on what Judge Nathan did right, some of her descriptions of the USAO’s conduct here make it difficult to understand how she concluded that this was unintentional rather than intentional conduct. Here are a few select quotes:

Quotes from September 2020 Decision

Disclosure-related issues first arose shortly after this case was transferred to the Undersigned and have—disturbingly—continued unabated since.

***

All four prosecutors who represented the Government at trial have admitted that the “[t]he transmittal email failed to disclose that GX 411 had not been produced previously” and that “there is no dispute that [this] was a failure in judgment on [their] part.” Surprisingly, the Government represents that this “failure in judgment” was no accident—it was the product of reasoned discussion among the prosecution team.

***

No responsible Government lawyer should strategize how to “bury” a document that was not, but should have been, previously disclosed to the defense. A responsible Government lawyer should—at a minimum—forthrightly and truthfully reveal late disclosures to the defense.

***

The Court finds that the Government’s representation [in a letter to the court] was misleading, as it implied that it had explicitly informed the defense that GX 411 was being disclosed for the first time. Indeed, the Court was misled.

***

The Court has now learned that certain Government lawyers edited the sentence in question [in the letter to the court] from an accurate recounting of the facts—the letter’s first draft rightly stated that the “Government did not specifically identify that GX 411 had not previously been produced in discovery”—to its final, misleading form.#

# It is worth pointing out that Unit Chief Shawn Crowley said in a text message upon reading this misleading letter the day after it was filed: “Yeah we lied in that letter.”

Quotes from February 2021 Decision

Once the Government realized its error, it did not forthrightly inform the defense that it had failed to disclose GX 411. Instead, the Government undertook to “bury it” in a list of previously disclosed documents.

***

[The government ] minimized and obfuscated when pressed for an explanation. After the Court ordered the Government to explain whether it had informed the defense that GX 411 had not previously been disclosed in discovery, the Government then falsely implied that it had.

***

Prior to March 6, only SAUSA Lynch knew that GX 411 was obtained from an unrelated DANY investigation and thus not among the subpoena returns that had been produced to the defense. He appears—wrongly—to have believed that he bore no responsibility for the Government’s Brady obligations . . The AUSAs, meanwhile, appear not to have considered that they might not yet have produced GX 411 to the defense.

***

The Court emphasizes that the line prosecutors’ handling of GX 411, including the lack of attention to its potential exculpatory value, fell far short of their constitutional and ethical obligations. For one, the line prosecutors should have recognized the potential exculpatory value of GX 411, as the Unit Chiefs now testify that they did when they first reviewed the document. However, even if they were unsure whether the document would have been valuable to the defense, they should have produced it [ under Rule 16].

***

[The government’s failure] to investigate whether GX 411 had been produced until they decided to offer it as an exhibit is part of a disturbing pattern.

***

[W]hat followed were a series of actions designed to distract from the late disclosure and minimize the Government’s apparent culpability, culminating in a misrepresentation to the Court about whether prosecutors clearly identified GX 411 to the defense as a newly disclosed document.