This Is Why Defense Lawyers Can’t Trust Prosecutors (The 1MDB Discovery Debacle)

By Sara Kropf

In a high-profile case in the Eastern District of New York, the Department of Justice has once again shown that it cannot be trusted when it comes to discovery. DOJ recently disclosed that it had failed to give 15,500 pages of emails from its star witness in the trial against a Goldman Sachs banker named Roger Ng. And this came out after the trial had already started and the star witness was on the stand.

This prosecution is part of a massive criminal investigation involving the 1MBD scandal. To give you a sense of the size of this matter, Goldman settled the criminal charges for $5 billion dollars. That’s billion, with a “b.”

A key part of our criminal justice system is that the government has to turn over documents to the defense. There is a complicated set of discovery rules for this. One critical rule is that the government must turn over documents if they are “material to preparing the defense.” A second critical rule is that under Brady/Giglio, the government must disclose material that is exculpatory or used for impeachment purposes (that is, to show a witness is lying or not telling the whole story).

The system only works if defendants and the courts can trust DOJ. There is no independent check on it. If DOJ doesn’t turn over evidence, it’s like a tree falling in the forest. The defendant and the court do not hear it, unless something unusual happens that alerts them to missing discovery. In fact, as defense counsel, we are often met with righteous indignation from prosecutors when we dare to suggest that they have not turned over everything.

It takes stories like this one and others—such as when SDNY prosecutors turned over key documents late and sent internal emails saying they would “bury the document” in the production to make it more difficult for a defendant to find—to remind the defense bar that we need to keep writing letters to the government, keep creating a record, keep filing motions, and keep pushing back on whether the government has given us everything it is supposed to.

15,500 Pages Never Produced – A Short Timeline

Mr. Ng’s indictment was unsealed in October 2018. One of the key witnesses against him was another Goldman Sachs employee named Tim Leissner. Mr. Leissner cooperated with the government in exchange for his plea deal. Because Mr. Leissner was such a key witness, the defense team was quickly focused on how important his communications were.

Two issues came up about his communications.

• First, at some (unknown) point, the government executed a search warrant for Mr. Leissner’s emails.
• Second, the defense team learned that Goldman Sachs had Mr. Leissner’s personal phone but had not given it to the government.

A quick timeline of key events:

Early January 2021	Defense team asks for all “data, documents, or objects” in the government’s possession “relating to” Mr. Leissner.
Mid-January 2021	Defense team tells government that it understands all discovery has been produced.
Early March 2021	Defense team again asks government for all “data, documents, or objects” in the government’s possession “relating to” Mr. Leissner
Mid-March 2021	Defense team raises issue with court that government has not obtained Mr. Leissner’s devices from Goldman Sachs
November 2021	According to the government, its Privilege Team was reviewing documents from search warrants for Mr. Leissner’s accounts.
December 21, 2021	Privilege Team tells Case Team there are 15,500 non-privileged Leissner emails to be produced to the defense.
December 23, 2021	Government tells defense that it will produce non-privileged documents related to Mr. Leissner the following week
January 19, 2022	Defense team sends letter to government documenting meet and confer session and stating that it was the defense team’s “understanding” that the government “had released the material that it, in its sole discretion, had deemed as non-privileged.” (Red Flag #1 to Case Team: No confirmation that the 15,500 documents were actually produced to defense.)
Sometime after January 19, 2022	Case Team confers with Privilege Team, who says its review is complete and that “any nonprivileged documents would be released to the Case Team and the defendant.” (Red Flag #2 to Case Team: the documents haven’t been produced yet and jury section begins in about 3 weeks.)
February 7, 2022	Jury selection begins
February 14, 2022	Trial begins
February 14, 2022 (11:30 pm)	Government tells defense that it had an additional 121,668 pages of discovery from the Privilege Team, including “eight email accounts related to Tim Leissner” and Mr. Leissner’s ex-wife, as well as about 5000 pages of materials “from a personal device of Tim Leissner.”
February 15, 2022	During court hearing, government tells court that all non-privileged documents (including those related to Mr. Leissner) had been produced to the defense team.
February 16, 2022	Mr. Leissner’s direct examination begins.
February 23, 2022	According to government, it learns at 10:30 pm that not all non-privileged documents related to Mr. Leissner had been produced.

Don’t Sell Out Your Colleagues and Take Responsibility When You Screw Up

My first response to the government’s February 23 letter was that the Case Team sold out their colleagues. The letter was nothing more than the Case Team saying, “it’s not our fault, judge. The Privilege Team messed up and told us things that weren’t true.”

But that’s not what happened. The Case Team knew about the 15,500 pages in December. In my experience, when there is a privilege team, the privilege team produces the non-privileged documents to the case team, and then the case team produces them to the defendant. That’s because discovery obligations (making sure the defendants get the documents) fall on the prosecutors who are actually handling the case—not on privilege team members who are selected because they aren’t involved in the case.

As my kids would say, this is a jerk move. The ultimate responsibility to produce those 15,500 documents to the defense was in the hands of the Case Team. If the documents were not produced, then that error falls on the Case Team, not on the Privilege Team.

The Case Team Knew that the 15,500 Documents Had Not Been Produced

So, the Case Team here absolutely knew that the 15,500 pages had not been produced to the defense team. When there is a privilege team, the privilege team produces the non-privileged documents to both the case team and the defense. So, when the Privilege Team told the Case Team that there were 15,500 non-privileged documents to be produced—documents about the Case Team’s star witness—the Case Team would have looked in its database to review the documents for its own purposes and quickly would have realized that they had not been produced.

The only other option here is that the Case Team ignored every indicator that the documents had not been produced. They never followed up to make sure they had been produced. They never called the defense team, or sent it an email or letter, to make sure it had received the 15,500 documents.

Also, we would have to believe that the Case Team itself did not think it was important to review 15,500 emails from its star witness, the witness it was relying on to win a case involving tens of millions of dollars of supposed bribes. That theory makes zero sense. When your case relies heavily on a single witness, any trial lawyer worth her salt reads everything that person has sent that could be relevant. Otherwise, the other side may crush your key witness on cross examination with an unexpected email.

In criminal law, there is a theory of liability called “deliberate indifference.” Even if the defendant didn’t actually know that what he was doing was wrong, if he ignored obvious red flags or buried his head in the sand, then that’s enough to find him guilty. This theory has never made much sense to me but prosecutors sure love it.

In my view, these prosecutors either knew the documents hadn’t been produced or they were deliberately indifferent to that fact. And if that theory of liability is reliable enough to find someone guilty of a crime, how is it not reliable enough to find that there was prosecutorial misconduct?

What Is the Remedy?

As of now, it’s not clear what the remedy will be if anything.

While the government calls this failure “inexcusable,” it’s asking to be excused. It agreed to a “reasonable adjournment” of the trial before the cross-examination of Mr. Leissner, which the judge has granted. That may last a few days. In the government’s view, the defense has the documents, so what is the problem? It thinks the defense should quickly review the documents and move ahead.

The defense, meanwhile, has suggested that it may move for a mistrial. If it finds truly exculpatory material in the documents in the next few days, we will hear about it.

I could go on and on about the problems but there are three big ones:

1. Who can we trust? If the Case Team did not make sure that this important set of documents about its key witness were produced, how can the defense and the court possibly rely on anything it has said about discovery in the past? What else has slipped through the cracks?
2. The harm cannot be fixed by stopping the case for a little while. A single email or text can change everything. Seriously. I’ve had a case where a scribbled note circled in the margin turned into a defense and turned into an acquittal. Yes, we used some other documents and witness testimony to bolster it, but if we had not seen that one page in that one document with that one scribbled note, I don’t know if my client would be free right now. A failure to turn over discovery is never a “no harm, no foul” situation. The defense team cannot—in the middle of trial—recast its theory of defense. It cannot get a mulligan of its opening statement to the jury, which is the single most important time to explain its theory of the case to the jury.
3. A mistrial isn’t enough either. Mr. Ng has great lawyers and appears to have a well-funded defense with several lawyers and law firms on his team. He was a Goldman Sachs banker after all. But most defendants are not so lucky. His team can review the documents in short order. But a smaller defense team would struggle to get that done in the middle of a trial. It would be pretty much impossible. The government has now heard the defense’s opening statement and has a roadmap to its defense. It shouldn’t be able to start over with a new jury and take advantage of this information.

Dismissing these charges would be an extreme remedy. I suspect that before the court does either, it will want a full record about what happened. That could happen down the road, even after a verdict. Meanwhile, the trial appears to be continuing.

But dismissal is the right course here. Until courts impose serious, case-ending remedies for discovery failures, DOJ will continue to have them.

Sure, big cases have a lot of documents, a lot of agents, and a lot of moving parts. It’s no doubt a challenge to track everything. The problems in this case could be a result of human error or they could be deliberate.

But the reason for the failure to turn over evidence to the defense shouldn’t matter to the defendant’s remedy. This failure either violates the Constitution (if it’s exculpatory evidence) or court rules (if it’s material to preparing a defense) – or both. Anything less than a dismissal with prejudice, at best, gives DOJ no reason to spend the time and money to improve its discovery systems; at worst, it gives DOJ license to deliberately withhold evidence to win a conviction in the future.