I was perusing recent opinions from the courts of appeal for possible blog post ideas when I came across an odd-looking errata sheet. Here’s an excerpt:
That’s odd, I thought. I took a look at the original opinion in the case.
The First Circuit wrote an opinion published August 23, 2017. In it, the court of appeals affirmed the district court’s finding that there had not been a Brady violation when the prosecutor failed to disclose that he had talked with the chemist who analyzed the drugs and corrected a key date on her report.
The USAO then asked the First Circuit to remove the AUSA’s name because it might
suggest to the public that the Court found that the government in fact committed prosecutorial misconduct and that its actions were so egregious as to require rebuke.
Apparently, the Court agreed and it deleted the prosecutor’s name from the opinion.
Given the facts of the case, this is an unnecessary effort to protect a prosecutor who was found to have “willfully” withheld evidence favorable to the defense. It’s certainly not a courtesy extended to defendants who are ultimately found not guilty.
The Alleged Brady Violation
After selling a small amount of crack cocaine to an undercover police officer, Barry Spencer was charged with possession with intent to distribute crack cocaine and conspiracy to possess with intent to distribute. His first trial ended in a mistrial after a juror wrote a letter to the court saying that the “total case” was “unfair, unjust and wrong.”
The government tried Mr. Spencer for a second time.
At the second trial, the government produced two versions of a “certificate of drug analysis” prepared by chemist Claire Rimkus. The first certificate stated that the “date of incident” was May 26, 2013. This was incorrect; the date of the sale to the undercover officer was March 20, 2013. The second certificate contained the correct date. These exhibits, of course, were key to the case since they established that Mr. Spencer sold an illegal drug and identified the amount and type of drug.
The issue was that the chemist didn’t correct the certificate on her own. Rather, the prosecutor, John Wortmann, called her to alert her to the mistake.
The problem was that Mr. Wortmann did not disclose to the defense that he had called Rimkus to have her correct the date on the certificate. The government also did not produce the chemist’s “Case Conversation Log Report” where calls with prosecutors were recorded.
The trial court found that this evidence was favorable to the defense because the fact that the prosecutor told the chemist to correct the date “may well have called Ms. Rimkus’ conclusions into doubt.” (If the date were wrong, then Ms. Rimkus may have tested the wrong sample and assigned those results to Mr. Spencer’s case.)
The trial court also found that the government was charged with knowledge of the Log Report because the laboratory is part of the prosecution’s team and the failure to disclose was at least inadvertent. It found that with respect to Mr. Wortmann’s conversation with Ms. Rimkus, “the government willfully suppressed this evidence.”
Let’s be clear: the district court found that Mr. Wortmann willfully failed to disclose evidence favorable to the defendant.
Ultimately, the district court concluded that the evidence was not material to Mr. Spencer’s defense, although it said this was true “by the narrowest of margins.”
The Court of Appeals Decision
The court of appeals addressed only the materiality part of the Brady analysis. It left alone the district court’s findings as to the first two Brady elements (favorable to the defense and inadvertent/willful failure to disclose).
The court affirmed the district court’s findings as to materiality and affirmed Mr. Spencer’s conviction. It rejected Mr. Spencer’s argument that this evidence would have allowed him to cast doubt on the link between Mr. Spencer and the sample tested by Ms. Rimkus.
The court explained
In light of these aspects of the record, the District Court could reasonably conclude that the fact of the prosecutor’s contact with Rimkus to correct the error regarding the date of incident on the initial certificate would provide no more than a speculative basis for a conclusion that the control number itself was “incorrect or even manufactured.”
We also conclude that it was reasonable for the District Court to conclude that, even if the control number was not “incorrect or even manufactured,” the undisclosed evidence does not suffice to cast doubt on whether Rimkus, due to her alleged sloppiness or her ties to the prosecution, tested the wrong sample. Spencer does not dispute, after all, that Rimkus conducted her own, independent analysis of the substance that she then determined was cocaine base. And, nothing about the undisclosed evidence shows Rimkus to be sloppy or unprofessional in her work as a chemist for the State Police Laboratory. Rather, the undisclosed evidence just shows that Rimkus corrected erroneous information that had been given to her and that she had no reason to know was wrong.
Mr. Spencer lost his appeal.
The USAO’s Motion
A week after the court of appeals’ decision, the USAO for the District of Massachusetts filed “Petition for Panel Rehearing (Motion for Modification of Opinion).”
The motion asked the court to remove Mr. Wortmann’s name from the opinion because the court had concluded that he had not committed any misconduct and keeping his name in the opinion might suggest otherwise.
The USAO argued that the court generally does not identify lawyers who commit misconduct (it cites cases involving only prosecutors). It then argues that the court “did not find a Brady violation or any instance of misconduct.”
BUT: the district court found that Mr. Wortmann had “willfully” withheld information favorable to the defense. While this may not have been a Brady violation because of the lack of materiality, it strikes me that this could certainly be considered an “instance of misconduct.”
Interestingly, the government brief also says “while the parties may debate whether the undisclosed evidence was favorable to the accused…”
BUT: the district court found that it was favorable to the accused, the government did not challenge this finding on appeal and it was not questioned by the court of appeals. There’s a strong basis to conclude that the evidence was favorable to Mr. Spencer’s defense.
The government then contends that someone may read the opinion “as a strong rebuke” and this would be “unduly severe.”
BUT: anyone who reads the opinion will learn that the court concluded that there was no technical Brady violation. The government’s brief relies on the fallacy that someone reading the opinion might not understand it.
On September 29, the First Circuit removed the name of the prosecutor from the opinion. It filed a 2-page Errata Sheet that listed 12 references to Mr. Wortmann and replaced them with “the AUSA.”
How Far Does This Go?
If a prosecutor who “willfully” withheld information favorable to the defense and only by the “narrowest of margins” did not commit a Brady violation gets to have his name removed from an opinion, what’s next?
Will defendants who are acquitted at trial be entitled to have their names redacted from all documents on the docket? After all, they too have been found not to have done anything wrong and those documents could be read as a “strong rebuke,” which would be “unduly severe” to an exonerated defendant.
Heh. We all know that’s not happening.
I make the slippery slope argument to highlight how troubling this situation really is. It’s troulbing to see a court of appeals change its opinion based on the unchallenged motion by the USAO and protect a prosecutor. It’s equally troubling to see this done simply by an errata sheet, without explanation.
In fact, there should be a “strong rebuke” of prosecutors who willfully withhold favorable information from the defense, even if it is not technically material. This will help deter other Brady violations in the future. The Brady rules are troublesome for many reasons, as I’ve written about before, and we need even more deterrence efforts in place to encourage compliance with these rules.
Seeing your name in a written opinion calling out close-call Brady violations strikes me as strong deterrence. (I can se an argument to leave out names when it’s a frivolous Brady argument but you generally don’t see many published opinions discussing those in enough detail to include the prosecutor’s name.)
If only the courts provided the same level of protection to defendants wrongfully accused of crimes as it does to prosecutors accused of Brady violations.
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