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September 30, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “Prosecutors Behaving Badly: More Unethical Conduct or Just More Discovery of Misconduct?,” Thursday, September 30, 2010
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender, Northern District of Ohio
Moderator: Gerald Goldstein
NACDL’s Defending the White Collar Case seminar kicked off with a panel discussion on prosecutorial misconduct. The “Prosecutors Behaving Badly” hypothetical presented the panelists with the story of a federal investigation and trial regarding kickbacks paid by a construction company to a state university in exchange for a contract. The initial criminal investigation involved the corporation, the CEO, and 2 other executives who would eventually be charged and tried. An internal investigation was simultaneously conducted by the construction company.
One set of issues discussed by the panel involved legal representation during the investigation. In the hypothetical, one law firm represented: (1) the CEO; (2) the construction company; and (3) the two executives who would eventually be charged (this representation was paid for by the construction company, and was subject to a conflict waiver). Additionally, another partner in the same firm conducted the internal investigation on behalf of the construction company. Multiple panel members commented that it would be virtually impossible to ever get an effective waiver under these circumstances. U.S. Attorney for the District of the New Jersey, Hon. Paul J, Fishman, explained how he would approach a District Court Judge and seek to disqualify any attorney attempting to provide representation under these circumstances. The prosecutor would later use admissions made to the attorney who conducted investigation against the two executives at trial.
Another set of issues involved the prosecutor’s obligation (if any) to disclose Brady material during plea negotiations. During this investigation, the prosecutor was involved in plea negotiations with a whistleblower. At first, counsel for this whistleblower indicated that he had not been present during any incriminating discussions between the two charged defendants and the CEO, and that the two charged defendants had merely told him about these discussions. After the prosecutor balked at providing a favorable plea bargain in exchange for this second hand information, counsel for the whistleblower indicated that “after serious reflection, his client does recall several occasions when he overheard direct conversations between [the two executives who would eventually be charged] and their CEO, as well as several of the College Trustees.” The panelists agreed that the prosecutor’s disclosure obligations during plea negotiations were at best not clear. The prosecutor could not deny the prior inconsistent statement existed; however, the law is unclear regarding an obligation to turn over Brady material during plea negotiations. The panel noted that U.S. v. Ruiz, 536 U.S. 622 (2002) did not answer this question with regard to exculpatory evidence. In Ruiz, the Supreme Court held only that the prosecutor had no obligation to turn over impeachment evidence, because this obligation was closely connected to trial. In light of Padilla v. Kentucky, 130 S.Ct. 1473 (2010- holding that a defendant was denied the effective assistance of counsel during plea negotiations where he was not advised of the immigration consequences of his plea of guilty) this issue appears to be ripe for litigation.
Many panelists noted that another way to address this problem is through a re-write of Criminal Rule 16. Professor Ellen Yaroshefsky expounded upon this, noting how many jurisdictions already offered complete open-file discovery. One panelist, David Markus, argued strongly that there is a seeming disconnect between the tenor of Attorney General Eric Holder’s statements in favor of openness and the undercurrent of resistance to efforts to address these problems.
This same Brady material/prosecutorial ethics issue re-presented itself during the trial of the two executives, at which time the prosecutor again failed to disclose this information. Additionally, the prosecutor did not disclose that the witness had been “reimbursed” for his out-of-pocket expenses. No specific Brady request is made by defense counsel, however, there was no doubt among the panelists that this initial description by the whistleblower’s counsel would constitute a prior inconsistent statement by this whistleblower, and had to be disclosed. Nor was there any doubt that the failure to disclose the reimbursement was also flagrantly improper.
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