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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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  • Display: Sort:
    As a non-lawyer, I'm often amazed at what appears (5.00 / 3) (#1)
    by Honyocker on Wed May 13, 2009 at 01:47:50 AM EST
    to me be extremely lenient treatment of serious misconduct by prosecutors, but within the lawyer world is viewed as a big deal.  Sanctions?  This prosecutor is worried about sanctions because it may harm her career?  She should thank her lucky stars if all that happens is that her career comes to a halt.  I think this kind of misconduct should be punished criminally.

    I seem to recall that in the case of Tim Masters, the prosecutors, now judges, who withheld exculpatory material were publicly admonished (sorry, don't recall the legal term for their public slap on the wrist), but are still judges.  I thought, wow, that's it? Thanks for pointing out an interesting story.

    Prosecutors are Different (5.00 / 1) (#10)
    by kaleidescope on Wed May 13, 2009 at 09:37:13 AM EST
    Back in my days working for a law factory, I got to work on a pro bono case involving purloined Bolivian textiles.  My co-counsel was Michael Ratner of the Center for Constitutional Rights.

    Working with us was a CCR volunteer named Mahlon Perkins.  Mahlon had been a senior partner at Donovan Liesure, a major white shoe Manhattan firm.  Mahlon had been the lead partner defending Kodak in anti-trust litigation.  Plaintiffs had made a discovery request and, for some bizarre reason, Mahlon kept a box of responsive documents back, hidden in his closet. Some months after documents were due, Mahlon's conscience got the better of him and he confessed to the judge that he'd withheld the documents.

    He was summarily fired and disbarred.  

    Prosecutors who commit these kinds of infractions are seldom subject to serious bar discipline.

    Why?  Is it because the victims of Mahlon's actions were hurt financially -- they were people of means who are given more respect and protection in our society, whereas people hurt by prosecutorial misconduct are untermenchen?

    Or is there just some built in perceived need to cut law enforcement some slack when they break the law?

    Following on this (none / 0) (#17)
    by eric on Wed May 13, 2009 at 01:52:59 PM EST
    I wonder about motives.  A lawyer in a civil case stands to benefit financially by winning a case.  When a prosecutor withholds evidence, it isn't for money, it is for nothing more than winning.  Both are inexcusable, but one doesn't even make sense to me.

    Parent
    How Long did jones sit in jail? (none / 0) (#2)
    by randy80302 on Wed May 13, 2009 at 01:59:57 AM EST
    or is he still in jail?

    He recently made a plea deal to (none / 0) (#3)
    by Jeralyn on Wed May 13, 2009 at 02:07:30 AM EST
    have the prior felon in possession of a weapon count dropped in exchange for a plea to a drug count. The judge ruled, despite the failure to disclose, that there was other probable cause for his top and denied his suppression motion.

    Parent
    the disclosure (none / 0) (#5)
    by Bemused on Wed May 13, 2009 at 07:15:47 AM EST
    was required prior to the hearing on the motion to suppress before the judge and the judge has already stated the obvious-- that a prior inconsistent statement on a material issue by a witness is exculpatory. How a juror might view it is in this particular instance irrelevant, but in general any reasonable person would consider inconsistent statements to be probative of credibility. people migh disagree over whether the inconsistencies are the product of an intent to deceive, faulty recollection, confusion, etc., but, regardless, one is a less reliable source if one gives differing versions at different times.

      It's harder to assess whether the violation was inadvertant or intentional from the information, but the mere fact material  inconsistencies exist between prior statements and a sworn affidavit means any prosecutor SHOULD know it is exculpatory evidence required to be disclosed. The only thing that gives me pause is that eventually she did provide the notes memorializing the prior statements to the court for review.

      Either she is really dense and failed to recognize the obvious or, perhaps, she saw that as a way to cover her behind when the cop volunteered that he had met alone with her thus alerting the court that additional prior statements of the cop had been made to the prosecutor which had not been disclosed. By claiming then she didn't see anything exculaptory in the notes summarizing the prior statements when presenting them to the court, she reserved the "I'm just stupid and/or very careless" defense.

      It is difficult to say with certainty that she could not possibly be that stupid or careless even if it would seem highly unlikely.

    What would you consider adequate (none / 0) (#6)
    by me only on Wed May 13, 2009 at 08:04:51 AM EST
    sanctions to be?

    My second questions is more general, do cops ever get prosecuted for testilying?

    That's hard to say (5.00 / 1) (#8)
    by Bemused on Wed May 13, 2009 at 08:43:20 AM EST
    without knowing all the facts.

       Regardless of the formal sanctions ultimately imposed,  a lawyer who demonstrates untrustworthiness to a judge has squandered her most valuable asset. If a judge doubts your honesty and integrity it's hard to be effective in his courtroom, and with a prosecutor who appears in the same district in every case all the other judges of the district are aware too.

       Just as a pragmatic issue, her usefulness to DOJ has been now been compromised.  I believe she should be asked to resign because her only viable "defense" is incompetence; if she refuses to resign then she should be fired.

      As far as court or bar sanctions to come, I think we need more information than we have now.

       As for your second question, yes, but rarely.

    Parent

    I wasn't really asking what sanctions (none / 0) (#9)
    by me only on Wed May 13, 2009 at 09:27:27 AM EST
    to apply in this case.  I was asking, in general, what would adequate sanctions look like, akin to sentencing guidelines.

    I am not a lawyer.  I am especially not a federal prosecutor.  Do all prosecutors appear in court or do some do the trial work and others work behind the scenes?  (If some work behind the scenes, this particular prosecutor could then still have value.)

    I am more bothered by the idea that judges would hold something like this against a lawyer.  While I have never been arrested, I don't see the fairness in punishing the client for the lawyers work on other cases.  Isn't that reasoning why we don't admit the defendants prior criminal acts in a criminal trial?  (I am quite aware that prosecutors don't have clients beyond "the people," but the principal applies in both directions, and prosecutors do leave and become criminal defense attorneys.)

    Parent

    That's why (none / 0) (#12)
    by Bemused on Wed May 13, 2009 at 10:34:23 AM EST
     it's wise to do some research before hiring a lawyer. Just like everyone else doing every other job, lawyers earn good or bad reputations with their peers and superiors and those reputations matter very much. It's more inexcusable for the government to hire or retain lawyers with justly damaged reputations than it is for some unsophisticated private litigant and I see nothing wrong with courts being skeptical of lawyers who have demonstrated cause to invoke skepticism.

      A large part of being a good lawyer is convincing those who listen to you that you not only know and understand the facts and law of your cases  but can be trusted to describe and explain them honestly.

      Some (but relatively few) AUSAs do not try cases and work primarily on appellate,  post-conviction or civil matters somewhat rarely resulting in court appearances. Also, DOJ more generally has lots of lawyers who perform functions other than courtroom work. But, they  they all work on behalf of the people of the United States. The idea of "hiding" unscrupulous or suspect lawyers on the DOJ payroll is not appealing to me.

       Tackling your first question last,  if any lawyer knowingly and intentionally refuses to disclose discoverable information that the lawyer knew to require disclosure then severe sanctions possibly even disbarrment should be considered. I don't think we would want hard and fast rules or even guidelines because as we so frequently argue in the criminal context here different offenders with different backgrounds committing different specific offenses of the same general class should be judged on a case-by-case basis.

    Parent

    Yeah, I got the most severe (none / 0) (#14)
    by me only on Wed May 13, 2009 at 12:09:00 PM EST
    sanction would be disbarment.  What would a lesser sanction look like?  The sanction has to be strong enough to have teeth, but disbarment is very, very unlikely.  Especially in cases where the court rules the error "harmless."

    How does a regular person do research in hiring a lawyer?  (I find it odd that on a left leaning site this notion would carry a lot of weight.  I mean mortgage disclosure is required and basically the entire left side of the aisle screams that the mortgage crisis is due to predatory lending practices.  If the average consumer cannot understand factual information provided to them about a mortgage, how are they supposed to find and understand nuanced information about an attorney?)  Nuanced in this case meaning that the attorney was never sanctioned, just isn't considered credible by most judges.

    I know that I would personally call my wife's stepdad and the district court judge (a personal friend), but I don't supposed that most people have this type of connection.  (And I did not before meeting my wife.)

    Parent

    bar sanctions (none / 0) (#18)
    by Bemused on Wed May 13, 2009 at 06:01:39 PM EST
    range from disbarrment, suspension for various periods, at the top of the scale to probationary periods requiring supervised practice and the fulfillment of conditions (treatment,  fines, restitution  and costs, mandated extra-CLE, etc.) down to proverbial slaps on the wrist such as reprimands or admionishments.

      There is a wealth of information available but you are correct that a lot of people  are unlikely to have either the connections or sophistication   to make good choices. That's how bad lawyers stay in business.

        I wouldn't advise anyone to put much stock in the multitude of ratings and awards out there as most of  them are bogus as hell. I get offers constantly from outfits extolling the advantage of joining up so I can proudly proclaim I'm super this or best of that. They are basically the legal equivalent of those crooked Who's Who companies.

    Martindale-Hubbell is legit but it does now require people to pay to have the rating listed (pisses me off but it's still probably the most legit and reliable one available) You don't ask to be rated and don't  have to pay to be rated. You just don't get it shown now if you don't pay and the ratings are done anonymously by random lawyers in your area. That's not a perfect system but it beats the ones based on payments and/or nominations by your friends.

       

    Parent

    Hope you are still around (none / 0) (#19)
    by me only on Thu May 14, 2009 at 08:54:44 AM EST
    I can't login at home.  Don't know why, so sorry this a day later.

    Are the fines the worthless variety ($100) or something that would make a lawyer think about the ramifications ($20,000+)?  I have never heard of a lawyer being fined by the bar.

    Any idea how many lawyers appear in front of the bar?  I really doubt the efficacy of lawyers policing lawyers.  Let's just say, I don't trust the "buddy system."

    Interesting.  I polled 20 people here at the office (all professionals).  None of them were aware of rating systems for lawyers.  So thanks for the info.  I'll ask my wife's stepfather about it.

    Parent

    It varies (none / 0) (#20)
    by Bemused on Thu May 14, 2009 at 09:25:20 AM EST
     from state to state and case to case but I would not argue with the proposition that in general the penalties meted out to lawyers  by disciplining agencies tend toward the lenient.

      Also, even "disbarred" lawyers can in many instances petition for reinstatement, usually after some significant period of time, and be reinstated if they demonstrate to the satisfaction of the highest court they have reacquired the moral fitness to practice law.

      Monetary penalties usually include restitution if applicable and payment of the costs of the disciplinary proceedings in addition to fines, if any. I can't cite any examples off the top of my head of harsh fines being imposed. I know in my state the maximum fine (which doesn't include restitution or costs) is $500 per violation (many proceedings involve multiple alleged violations) and I've never handled a case where my client was fined at all, but that's probably because the combination of a suspended license (and resultant loss of income) and the primacy of the order to pay restitution to clients makes the payment of costs enough of a hit.

    Also, disciplinary proceedings are apart from court imposed sanctions which judges can impose for violations of rules or orders in their courts.

    Parent

    or do cops ever get prosecuted for (none / 0) (#7)
    by Jen M on Wed May 13, 2009 at 08:26:57 AM EST
    variable testimony?

    Parent
    Sounds a lot like (none / 0) (#11)
    by jbindc on Wed May 13, 2009 at 10:17:54 AM EST
    the handling of the Ted Stevens' case....

    Yes, what about the cop, BUT (none / 0) (#13)
    by TChris on Wed May 13, 2009 at 10:53:40 AM EST
    what about the prosecutor?  After repeatedly telling the truth to the prosecutor, the cop didn't get on the stand and tell a different story for no reason.  The cop certainly didn't testify without running through his testimony with the prosecutor first.  The clear inference is that the cop learned from the prosecutor that the lie would be more favorable to the government than the truth.  Shouldn't the prosecutor be prosecuted for suborning perjury?  (Like that would ever happen ...)

    Too bad it doesn't (none / 0) (#16)
    by NMvoiceofreason on Wed May 13, 2009 at 12:14:39 PM EST
    A few good suborning perjury convictions would clean up alot of this crap from ever being tried again - and because it doesn't, that's why it does.

    Parent
    An independent investigation (none / 0) (#21)
    by Bemused on Thu May 14, 2009 at 09:31:40 AM EST
      would certainly seem in order. There may be a question of whether the prosecutor actually suborned perjury but your inference is certainly a reasonable one and arguably the most likely explanation.

    Parent
    The penalty (none / 0) (#15)
    by NMvoiceofreason on Wed May 13, 2009 at 12:12:06 PM EST
    must be about the law, not the perpetrator. The Boston USAtty office has been running roughshod over the rules. Court has got to say no, very harshly. Look for the strongest possible sanctions, and a presumption AGAINST the USAtty in court (rebuttable, of course).