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BRADY VIOLATIONS IN WHITE COLLAR, CORRUPTION CONVICTIONS

Dec 01 2011
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Serious, Widespread and Intentional Concealment of Evidence by DOJ and US Attorneys
By: Houston Criminal lawyer John T. Floyd and Paralegal Billy Sinclair

Former Alaska lawmaker, Vic Kohring, has entered a guilty plea admitting he accepted bribes from an “oil man” for his help in keeping taxes low on the Alaskan oil industry. The plea comes after an appellate court tossed out Kohring’s original conviction, along with others convicted in the scandal, after finding that the Government had intentionally withheld evidence in the trials. Kohring’s case documents the years of scandal resulting from official corruption between the oil industry and Alaska’s politicians and the disturbing pattern of misconduct by prosecutors, hell bent on getting the bad guys, that followed.

Alaska State Rep. Victor Kohring was convicted in a federal court in 2007 on corruption charges that alleged he took bribes from oil industry insiders. He was sentenced to 42 months in prison and had served a year incarcerated before his case was reversed after a finding that the Government had intentionally mishandled the trials of the defendants.

One year after securing the Kohring conviction, federal prosecutors sought and secured a conviction of Alaska’s most powerful politician, Ted Stevens, who was the longest serving lawmaker in Washington at the time of his conviction in 2008. Despite his corruption conviction, Stevens barely lost his reelection bid just eight days later.

But, before his death in a plane crash in August 2010 at age 87, the former lawmaker would have vindication in the same federal court system which had convicted him. In April 2009 U.S. District Court Judge Emmet G. Sullivan reversed Stevens’ conviction at the behest of U.S. Attorney General Eric Holder, telling the U.S. Justice Department (“DOJ”) that, “in 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case.” Adding that the misconduct of six DOJ prosecutors was so “shocking and disturbing” that the judge felt compelled to appoint Henry F. Schuelke to investigate the egregious prosecutorial misconduct to determine if criminal charge should be brought against the prosecutors.

Attorney General Holder inherited the Sen. Stevens case which, even before he had been sworn in January 2009, had become a judicial mess. The issue that brought the case to the forefront of public scrutiny was the revelation that prosecutors had withheld statements a key witness had given to law enforcement officials which was diametrically opposed to his “under oath” trial testimony. Holder removed the prosecutors from the case and asked Judge Sullivan to dismiss the indictment against the former senator.

“I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial,” Holder informed the court and the public. He added that the DOJ has an obligation to make sure that all cases are “handled fairly and consistent with its commitment to justice.”

In the wake of the Stevens fiasco, the DOJ on January 4, 2010, through then Deputy Attorney General David Ogden, issued “Guidance for Prosecutors Regarding Criminal Discovery” (“Ogden Memo”) as well as other training measures. The Ogden Memo provides that “in order to meet discovery obligations in a given case, Federal prosecutors must be familiar with [Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. § 3500 (Jencks Act), Brady v. Maryland, and Giglio v. United States] and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how meet their discovery obligations in each case. Toward that end, the Department has adopted the guidance for prosecutors regarding criminal discovery … The guidance is intended to establish a method approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice. The guidance is subject to legal precedent, court orders, and local rules.”

The Ogden Memo imposed a detailed four-step process federal prosecutors must be familiar with in order to fulfill their “discovery obligations.” We feel that every state prosecutorial and law enforcement agency, as well as those non-law enforcement agencies that cooperate with law enforcement investigations, should adopt the four-step discovery obligations set forth in the Ogden Memo, or, at a minimum, provide internal training relative to those obligations. Just nine days after the Ogden Memo was released, the Securities and Exchange Commission’s (“SEC”) Enforcement Division announced a “cooperation initiative” with the DOJ which allows the SEC to engage in “cooperation agreements, deferred prosecution agreements, and non-prosecution agreements” with individuals under investigation by that agency. Most legal experts believe the upside of this cooperation between the SEC and DOJ will be to impose the Ogden Memo discovery obligations on the SEC.

Beyond a doubt, the Ogden Memo was desperately needed. Just nine months after the memo’s release USA Today released a thorough investigative piece detailing misconduct by federal prosecutors in 201 cases since 1997. It is an issue we dealt with last year (here). This investigative piece was followed by a Ninth Circuit Court of Appeals ruling earlier this year concerning withheld evidence in the Kohring case. The Brady/Giglio violations in Kohring’s case were similar to those in the Stevens case. Kohring claimed that prosecutors solicited false testimony from two key witnesses against him; withheld evidence that one of the witnesses had been investigated for sexual misconduct with minors; withheld evidence that would have “cast doubt” on the witness’s “memory and the amount of money paid to Kohring;” withheld evidence that money received from this witness was given “out of friendship and pity rather than a corrupt quid-pro-quo relationship; withheld evidence that another witness made inconsistent statements during the investigation and had a “questionable relationship … with an investigating FBI agent;” and withheld evidence that another government witness did not think Kohring was corrupt.

At the outset of its discussion in the Kohring case, the Ninth Circuit reiterated the following longstanding Brady/Giglio post-conviction constitutional discovery principles enunciated by the Supreme Court:

  1. Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”
  2. Giglio extended the Brady rule to include evidence that “impeaches a witness’s credibility.”
  3. Strickler v. Greene held stated the three prerequisites for a Brady/Giglio violation: “(1) the evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.”
  4. United States v. Bagley held that evidence is “material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
  5. Kyles v. Whitley held that there is a “reasonable probability” of prejudice when the withheld evidence “undermines confidence in the outcome of the trial.” The Court added that withheld evidence is considered “collectively, not item by item,” and if the withheld evidence is “merely cumulative,” then the failure to disclose is not a violation. The Court, however, cautioned that if a reviewing court finds a Brady/Giglio violation, “there is no need for further harmless error review.”
  6. Strickler v. Greene buttressed Kyles by holding that a “reasonable probability” of harm may be found “even where the remaining evidence would have been sufficient to convict the defendant.”
  7. Banks v. Dretke held that impeachment evidence was not “merely cumulative” when the withheld evidence is of a different character than evidence already known to the defense.
  8. Cone v. Bell also buttressed Kyles by holding that “there is a reasonable probability [when] the withheld evidence would have altered one juror’s assessment” of the evidence against the defendant.

While the Ninth Circuit found substantial Brady/Giglio violations, the appeals court said it did not believe the prosecution “acted flagrantly, willfully, and in bad faith;” therefore, the court did not exercise its “supervising authority” by dismissing the indictment against Kohring. Instead, the court opted to rely upon the standard “appropriate remedy” for Brady/Giglio violations which is “usually … a new trial.” With the Ninth Circuit concluding there had been no “outrageous government conduct” in the investigation and prosecution of Kohring, the former Alaska state representative informed the federal court in October that he would plead guilty to one count of extortion-conspiracy, effectively closing the door on the case and thereby removing the specter of another Stevens-like scandal for the DOJ to deal with.

Whether or not the Ninth Circuit was giving the DOJ legal cover in the Kohring case because of the intense media intention for similar conduct in the Ted Stevens case is open to debate. But what is not subject to debate is the continuing legal fallout from the Stevens case. The New York Times reported on November 21, 2011 that Robert Schuelke had presented to Judge Sullivan a 500 page report, based on a review of “150,000 pages of documents” and the interviews of “dozens of witnesses.” The Times said Schuelke informed Judge Sullivan that while the Stevens’ investigation and prosecution were “permeated” with “serious, widespread and at times intentional” withholding of Brady/Giglio material, he did not think DOJ officials involved in the prosecution should be prosecuted for criminal contempt of court because Judge Sullivan had not issued “an order specifically instructing prosecutors to obey the law by turning over any exculpatory evidence.”

Judge Sullivan’s failure to issue such an order notwithstanding, we believe Schuelke ducked the criminal contempt issue to insulate the DOJ from further embarrassment. A judge should never be required to “order” federal prosecutors to obey the law. They have an ethical duty to honor, respect, and uphold the law at all times. More to the point, Rule 3.8(d) of the Model Rules of Professional Conduct, promulgated by the American Bar Association in 1983, imposes the following “special responsibilities” on a prosecutor:

“The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

The Schuelke report found prosecutors had engaged in the “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’] defense and his testimony, and [would have] seriously damaged the testimony and credibility of the government’s key witness.” The Schuelke report further concluded the “evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed—at least to the court and to the public—but for their exhaustive investigation.”

Put simply, federal prosecutors prosecuted a prominent and respected public official knowing he was likely innocent—and they would have concealed their wrongdoing had an FBI agent in 2009 not filed “an affidavit” fingering the prosecutors for failing to turn over “exculpatory evidence” to Stevens and had Attorney General Holder not took the “extraordinary request to set aside Mr. Stevens’ conviction,” reported the Times. This is official corruption and it should be criminal conduct, plain and simply.

Judge Sullivan noted that while Schuelke did not recommend criminal contempt prosecution of the prosecutors, one or more of the prosecutors could still face obstruction of justice charges. We strongly recommend that the DOJ, through Attorney General Holder personally, consider obstruction of justice charges against all the prosecutors involved in intentional wrongdoing in the Ted Stevens travesty. At a minimum, these prosecutors need to have their careers and reputations threatened by criminal prosecution for deliberately and methodically ruining that of Senator Stevens’. The federal prison system is populated with scores of inmates convicted of far less criminal wrongdoing than that committed by these prosecutors. It is long past time for the DOJ to step up to the plate and put an end to deliberate suppression of Brady material, as was also seen in the case with former Alabama Gov. Dan Siegelman under the guidance of former Attorney General Alberto Gonzales.

Stevens, Kohring, and Siegelman are not aberrations. Some would argue they have become the rule, not the exception, with federal prosecutors who want to doctor their professional resumes with white collar crime convictions, especially when it involves prominent public officials. Given the enormous amount of power held by prosecutors and the long standing, well-known legal and ethical rules surrounding disclosure of Brady material, these prosecutors are worse, and far more culpable, in criminal wrongdoing than many of the public officials they have convicted.

By: Houston Criminal Attorney John T. Floyd and Paralegal Billy Sinclair.
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization

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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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