On June 26, 2017, the Boston Globe carried a report about a Springfield, Massachusetts judge who vacated several drug convictions because of misconduct by two former state prosecutors involved in the drug cases.


Judge Richard J. Carey of Hampden County Superior Court found that the two prosecutors in 2014“tampered with the fair administration of justice” by misrepresenting issues to the court and concealing evidence beneficial to the defense.


Stories of prosecutorial misconduct continue to attract national media attention, with each story undermining the nation’s criminal justice system.


But when does legitimate prosecutorial conduct crosses the line to become misconduct?


Prosecutorial Misconduct


The Center for Prosecutor Integrity (“Center”) defines prosecutorial misconduct as any conduct, intentional or inadvertent, during the course of a prosecution that:


  1. Violates the applicable code of professional ethics,
  2. Breaks a pertinent law, or
  3. Prejudices, or appears to prejudice the administration of justice.


Prosecutorial Misconduct in Texas


The Center reports that as of June 28, 2017, there have been 289 prosecutorial misconduct cases recorded in Texas. The lead reason for the misconduct was prosecutors getting inadmissible evidence into a trial followed by pretrial Brady violations.


Federal cases involving prosecutorial misconduct, as of June 28, 2017, are somewhat fewer than the Texas cases. The Center reports that there have been 238 cases of prosecutorial misconduct at the federal level. The lead reason for the misconduct in these federal cases was pretrial Brady violations followed by inflammatory argument.


The Open File, a site that tracks cases of prosecutorial misconduct nationwide, offers a more detailed definition of prosecutorial misconduct. The prosecutor accountability site says misconduct occurs between two sets of rules: first, “the legal rules that bind prosecutors so as to ensure due process – the state and federal constitution, statutory law, rules of criminal procedure, judicial orders, and the like;” and “the ethical standards of the legal profession as expressed in each state’s bar rules of professional responsibility and similar professional codes.”


The Open File list nine non-exhaustive types of misconduct:


  1. Failure to disclose exculpatory evidence
  2. Introduction of false evidence
  3. Improper argument
  4. Discrimination in jury selection
  5. Interference with defendant’s right to representation
  6. Improper communications with a judge or juror
  7. Improper use of the media
  8. Failure to train subordinates and maintain a system of compliance
  9. Failure to report a violation of the rules of professional responsibility


Trial Courts and Prosecutorial Misconduct


On June 9, 2017, the Fifth Circuit Court of Appeals in United States v. Colorado Cessa (Colorado) dealt with such a case tried in the Western District of Texas.


There is no dispute that Colorado was involved with the Los Zetas, a violent and powerful Mexican drug cartel. Colorado was twice convicted for conspiracy to commit money laundering under 18 U.S.C. § 1956(h). The first conviction was reversed by the Fifth Circuit.


The Government retried Colorado because prosecutors did not believe his defense that his relationship to, and involvement with, the Zetas was a forced one that was both undertaken and maintained because of threats on his life.


Colorado was a businessman who owned an oil-services business called ADT Petro Services. Beginning in 2004, the Government charged, Colorado assisted the Zetas in a money laundering scheme that involved purchasing quarter horses and reselling the horses to “straw purchasers and shall companies.” The scheme created “clean” money for the drug cartel that, as the appeals court said, “was difficult to trace.”


Prosecution Withholds FBI Reports


The FBI had a cooperating witness they interviewed nine times. Following each interview, the agents generated a FBI Form 302, a document that memorializes witness interviews in criminal cases.


Colorado’s attorneys requested the 302s from the Government. That request was denied. Defense attorneys then filed a motion with the trial court seeking production of the 302s, arguing that the 302s were Brady and Giglio material.


After the witness testified for the Government, the court conducted an in camera hearing on the discovery motion, taking testimony from the cooperating witness. The court also read the 302s and said it found nothing in them that was “helpful” to the defense.


Three Prong Test for Brady Violation


The Fifth Circuit, following the lead of the Supreme Court in Brady, recognizes a three-prong test that must be satisfied to establish a violation: 1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; 2) the evidence was suppressed by the prosecution; and 3) the evidence was material. The appeals court, again following the lead of the Supreme Court, says that “evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”


Materiality vs. Favorability


Applying these clearly established Brady rules in the Colorado case, the Fifth Circuit said:


“Although the Government claimed at oral argument that the district court considered all three prongs of the Brady analysis, the record does not support that proposition. The district court denied Colorado’s request for the 302s, saying: ‘I’ve read everything with the idea of how could any of that help you, and I couldn’t find anything that would help you. Found a lot that could hurt you but not much that could help you. Nothing that could help you.’ On the face of the district court’s statement it considered only favorability. This is not a case where the district court reviewed all potential Brady material in camera and denied discoverability without giving reasons or with reasons that could reasonably be read to reach all three Brady prongs. In that type of case, we might (in the absence of contrary evidence) presume that the district court did a full Brady analysis. Here, however, the district court gave reasons for denying discovery and couched its holding in terms of favorability only.”


The appeals court pointed out that the district court did not “assess” the materiality of the 302s.

That failure was significant because the trial court’s ruling that the 302s were not discoverable evidence came immediately after the cooperating witness had given his direct examination.


And that created a problem the Fifth Circuit could not ignore as the court pointed out: “… much of what we focus on in assessing materiality is how the suppressed evidence relates to cross-examination.”


The appeals court concluded that based on the trial court’s “own words and the context of the trial,” it was clear that the 302s were reviewed for “only favorability.”


Court Must Assess Impeachment and Cross-Examination


Thus, the Fifth Circuit held that the trial court’s finding that the 302s were not favorable to the defense was clear error because the court did not assess whether the interview memoranda could have been used for impeachment purposes on cross-examination of the cooperating witness.


The appeals court remanded for a Brady/Giglio hearing.


This case never should have become embroiled in these protracted legal proceedings. The 302s were obviously impeachment material given inconsistent statements the cooperating witnesses had given to the FBI and what he told the jury. The Government at the very least should have promptly disclosed the 302s after the witness’s direct examination and once it realized the inconsistencies in the witness’s statements.


In fact, the Government should have disclosed the 302s pretrial. The cooperating witness was interviewed multiple times. There were inconsistencies in his statements. The 302s were undeniably Giglio impeachment evidence that was material to Colorado “fear for his life” defense.


And the trial court blessed the Government questionable refusal not to disclose the 302s by not hearing the defense’s discovery motion pretrial at which time it would have had more time to conduct a materiality analysis of the 302s to determine if they had possible Giglio impeachment value for cross-examination.


Fortunately, the Fifth Circuit saved the day.