Wednesday, August 19, 2020

Sanctions Proposed For AUSAs Charged With Disclosure Violation

An Ad Hoc District of Columbia Hearing Committee has recommended a 30-day suspension for two Assistant United States Attorneys for the non-disclosure of Brady/Giglio material concerning a government witness in a criminal case.

The events precipitating these charges – Respondents’ treatment of a report (the “Collins Report”) from the Department of Corrections (“DOC”) about a witness that the Government wanted to (and ultimately did) sponsor in a criminal case (the “Vaughn case”) involving a melee in the DC jail – occurred in 2009 and 2010.

The detailed report discusses the intent element required to prove a Rule 3.8 violation. 

First, from the moment Respondents learned about the Collins Report, they recognized that it created “issues” they would have to deal with. Summarizing Taylor’s testimony, when she talked to Officer Collins and read his Report, she understood that his Report raised a question about whether the Government could sponsor Childs and that, if the decision was made that it could sponsor him, the Government would have to deal with disclosure of the Collins Report. Second, they immediately sought guidance on how to proceed from their supervisors, who had considerably more experience on these issues: her direct supervisor (Alan Boyd) and the chief of the Superior Court Felony Major Crimes Division (Jeffrey Ragsdale). Third, after discussing it among themselves, they decided to send it to the Lewis Committee [senior level AUSAs] for further review. Fourth, when guidance was not forthcoming, they pestered the Committee for a response. Fifth, the guidance they received authorized them to sponsor Childs and to “disclose the report and litigate its admissibility.” More importantly, it expressed [Chair of the Lewis committee] Roth’s skepticism that the Collins Report correctly characterized Childs’ report as false. Sixth, upon receiving clearance to sponsor Childs and to “disclose and litigate” the use of the Collins Report, Dobbie discussed with Ragsdale how to proceed, reviewed a Motion in Limine he gave her as a sample of a way to proceed, and drafted the Motion that is central to this case. All of these facts point to prosecutors who were mindful of their Brady and Giglio obligations, who understood that the Collins Report raised Brady and Giglio issues they had to deal with and who took a variety of steps to tee-up the issues for resolution. They do not paint a picture of prosecutors who set out to violate Brady/Giglio or the Rules with “deliberateness.”

But there are other facts in the “mosaic” that cut in the other direction. Those all relate to what Respondents did not do. While Roth sowed the seeds of doubt about whether “the DOC conclusion that he [Childs] lied is supported by the record,” he also advised “but I will leave it to you folks to hash that out,” which invited Respondents to take additional steps that would either affirm or negate the doubts that Roth introduced.

...it is the case that Roth was at best equivocal on Childs’ credibility and told Respondents to “hash that out,” which they simply did not do. When a prosecutor is trying to obtain a conviction that could (and in this case did) imprison a defendant and is faced with a serious question about the credibility of a key witness, it is incumbent on the prosecutor to run the credibility issue to the ground. Respondents’ failure to do that here, in the face of the many warning bells that were sounded, in the Committee’s view converts what might in other circumstances be characterized as simple negligence into aggravated neglect that supports the Committee’s finding that Respondents had the intent necessary to support a finding of a Rule 3.8(e) violation

The committee found mitigation in the fact that the attorneys had sought guidance from their superiors

As to mitigation, we have already described what we have found to be the most significant mitigating factor in this case: the entirely unhelpful “advice” of their supervisors. While not a defense to their conduct on the merits, we believe it should weigh heavily in assessing the sanction imposed. In that regard, while there is no question that as the principal attorneys on the case, who signed the Motion in Limine and who appeared at the Superior Court hearings where the misconduct occurred, they are responsible for the actions charged in the Petition, we cannot disregard that much more senior Assistant United States Attorneys who were deeply and directly associated with Respondents’ actions do not seem to have been charged with professional misconduct.

Additionally, despite their unhappy experience as Assistant United States Attorneys, Respondents have remained in the Justice Department continuing their careers in public service. And as regards Dobbie’s career, the Committee has received letters from past and current colleagues attesting to her good work and high moral standards. Those letters are in the record, and the Board and Court can assess them for themselves. Without parsing them here, they paint pictures of a lawyer who has a reputation for honesty, integrity and professionalism and who is a credit to the system, not one who is a threat to it.

Attitude

This factor is complicated. An attorney’s “failure to accept responsibility for [her] actions” has been “considered as an important aggravating factor.” In re Howes, 52 A.3d 1, 20 (D.C. 2012) (citing In re Pelkey, 962 A.2d 268, 282 (D.C. 2008)). In a case in which the Respondents contest the allegations made against them, as they are surely entitled to do under the Rules, the very fact of a contest suggests that they do not accept the characterization of their conduct as  and that they do not “accept responsibility for their actions.” Yet to find from a lawyer’s contest that she is not “remorseful,” or that she “does not appreciate the significance of her conduct” is unfair to lawyers who have a good-faith belief that their conduct was not blameworthy...

Here, Respondents vigorously contested the claim that their conduct amounted to Rule violations. But they also candidly acknowledged that they would do many things differently today if faced with the same problem they faced in 2009. While one could judge those sentiments cynically (of course they would do things differently, given the charges against them), their demeanor during their testimony does not warrant that cynicism. We are persuaded that there is no doubt in Respondents’ minds that there are better practices to employ today than in 2009, even in the face of more experienced supervisors’ unhelpful “advice.”

Closing note

We could close on our sanction recommendation. But our experience with this case prompts us to make one final observation that may be implicit in what we have laid out in the body of this Report. While it is never easy for any less experienced professional to challenge the wisdom of supervisors, attorneys in general, and prosecutors in particular – even relatively inexperienced ones – have a special duty to the pursuit of justice which, at times, will mean “speaking truth to power” and “pushing back” if they conclude that their supervisors’ advice is potentially misguided. We are confident that Respondents have learned this lesson, and we hope that this case – when it is finally resolved – will send that message to others as well.

The Collins report is appended to the opinion. 

Non-attorney member Hal Kassoff dissented on the majority's dishonesty finding and would impose an informal admonition.

The matter will now be reviewed by the Board on Professional Responsibility. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/08/a-district-of-columbia-hearing-committee-has-recommended-a-30-day-suspension-for-two-assistant-united-states-attorneys-for-th.html

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Comments

Gee, DOJ screwed this up so badly it looks like it was choreographed. I hope no one is surprised. I've seen to many examples of this, and this is not even close to difficult. Disclose it and let the chips fall where they may. They got off lightly, and should never be allowed to work in public service again, nor should the "supervisors". I have higher expectations for myself, for my supervisors, and for other attorneys.

Posted by: Douglas Mitchell | Aug 19, 2020 9:43:54 AM

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