By Sara Kropf

If the Department of Justice has accused someone of a crime, it’s no surprise that he can’t say, “aw, ya got me,” and walk away from the accusation. Au contraire. DOJ will prosecute that person to the fullest extent of the law and the whole process will be public.

But when DOJ is credibly accused of committing a Brady violation, the opposite happens. Judges seem to routinely allow prosecutors to walk away from their wrongdoing and not answer the toughest questions about what happened.

This doesn’t make sense. Judges should use their inherent authority to investigate Brady violations. They should also consider appropriate sanctions against prosecutors, including referral to disciplinary authorities, for serious violations. This should happen even when — in fact, especially when — DOJ wants to scurry away from the accusations.

The WDNY Example – Case in Point

How it started: In 2018 and again in 2021, DOJ indicted four defendants in a $500 million fraud case. The feds claimed that the defendants had engaged in a massive conspiracy to defraud investors, banks, mortgage lenders, and insurance companies. The charges were no joke: one defendant faced 55 felony counts and another faced 48.

How it’s going: This month, one defendant pleaded guilty to one count of conspiracy to commit wire fraud, with a loss amount less than $2000. The other three co-defendants pleaded guilty to one count of bank larceny with a loss of less than $1000. Of the three co-defendant, two negotiated plea deals with no jail time and one faces zero to six months.

What happened?

In short, it appears that the defense had very strong evidence of intentional and repeated Brady and other discovery violations. The government had produced 6800 internal documents to the defense to prepare for the hearing. Adding to the discovery violations were at least 25 alleged misrepresentations made by DOJ prosecutors to the court.

The court scheduled a hearing on these credible allegations of misconduct.

The judge made clear a few months earlier that she was concerned about DOJ’s conduct:

There is a basis to conclude the government’s missteps with respect to discovery were greater than I concluded in October 2020 when I issued my initial decision, but that would not change my decision. What could … is a finding that the government intentionally misrepresented to me and [Magistrate] Judge [H. Kenneth] Schroeder information concerning the discovery in this case – either through affirmative statements that are false or omissions.

The court had scheduled an evidentiary hearing at which eight DOJ employees were scheduled to testify about their role in these matters. The defense had identified over 250 exhibits it planned to use at the hearing. At the hearing, the court would consider dismissing the indictment with prejudice, if the defense could show that the prosecutors acted in bad faith with respect to meeting their discovery violations.

The hearing was scheduled to start on April 4, 2022. However, that very day, the government announced that it had reached plea agreements with three of the four defendants. These were what some people would call sweetheart deals. They were WAY below the original charges.

In light of the plea deals for the three defendants, the court adjourned the evidentiary hearing—letting DOJ off the hook, at least temporarily.

Then, on April 7, the court held a non-public status conference (this is unusual) and on the 12th, DOJ announced that it had reached a plea deal with the final defendant.

What Next?

The court hasn’t formally announced what will happen next but it seems fairly certain that the evidentiary hearing will not happen.

In other words, it seems clear that DOJ chose to effectively drop a massive fraud case against four defendants—one that no doubt required a considerable amount of the USAO’s time and resources for several years—to avoid having to answer tough questions about credible accusations of serious discovery violations.

What Should the Court Do?

The court should (1) wait to enter the defendants’ plea agreements; (2) hold the hearing; and, if it finds a violation, (3) consider appropriate sanctions against DOJ.

There is no reason not to hold the hearing to determine whether DOJ did something wrong. Although the plea deals are certainly a very positive outcome for the four defendants, dismissal of the indictment with prejudice is a better one. Criminal convictions have all sorts of collateral consequences, and a dismissal would remove those consequences entirely. 

Holding the hearing is necessary to find out what happened and to deter it from happening again. DOJ accuses people all the time of wrongdoing and forces them to answer for their actions. Why should it be permitted to avoid answering the tough questions? Why should a court allow DOJ to substitute carefully crafted affidavits for its prosecutors rather than subject them to cross examination by the court or the defense about what they may have done wrong?

If the court finds a Brady violation (intentional or not), then one sanction the court should consider is an award of attorney’s fees and costs. The defendants have already paid to defend themselves against these charges. They should not have pay more to effectively investigate DOJ.

If the court finds an intentional violation, then the court should consider a second sanction: referral of the prosecutors and their supervisors to DOJ’s Office of Professional Responsibility (OPR), which is tasked with investigating wrongdoing by prosecutors. (OPR doesn’t have a great track record with policing its own, though, as I’ll cover in a later post.)

A third sanction is referral to the prosecutor’s state disciplinary authorities. In the District of Columbia, violating Brady is a violation of the rules of professional conduct. While very VERY few prosecutors have been disbarred for Brady violations, DOJ loves to talk about the “deterrence effect” of the sanctions it seeks and shows zero compassion for the fact that an investigation itself can be career ending for defendants. DOJ prosecutors who break the rules should likewise be deterred from discovery violations by facing a disciplinary violation.

Courts are busy and overburdened already. Enforcing the discovery rules against prosecutors is time consuming and it no doubt feels easier to let the case drift off into the sunset. After all, teh defendants are “getting off easy,” right?

Not right. The courts should play a more active role in deterring DOJ from Brady and other discovery violations. If deterrence actually works, then publicizing these cases and the sanctions imposed on DOJ should make these violations less likely in the future.

(Unless DOJ wants to argue that deterrence doesn’t work?)