Much has been written over the past few years about prosecutors’ violations of Brady v. Maryland, the Supreme Court case which held that prosecutors must turn over exculpatory material to the defense in time for the defense to use such material. There is a controversy about whether such Brady violations are an epidemic or an aberration. Often, litigation over Brady violations will focus on whether the violation was deliberate or accidental, although Brady violations occur even when the prosecutor acts in good faith.

A similar issue was recently litigated in the Eastern District of New York in a case entitled United States v. Gigliotti, et al, 15 CR 204 (RJD). There, the defendants were charged with conspiracy to import and importation of heroin. Prior to the filing of the indictment, the government served multiple grand jury subpoenas, and, in the case of a few of those subpoenas, the government improperly wrote on the subpoena: “YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.” The government later admitted that the use of this language was improper. The question before the District Court was what remedy should be imposed as a result of the violation.

According to the District Court, the government “offered the curious representation to the Court that [t]he inclusion of such language was inadvertent and unintentional,’ having been ‘missed by the undersigned counsel when the subpoenas were finalized by support staff.’” The District Court also wrote: “[T]he Court is, frankly, bemused by the government’s rather glib explanation that the violations were simply ‘inadvertent and unintentional.’”

In Webster’s Dictionary, “curious” is defined as “unusual and strange,” and “glib” is defined as “speaking or spoken smoothly, often too smoothly to be convincing.” Having labeled the government’s excuses “curious” and “rather glib,” thereby causing the District Court to be “bemused,” a logical inference could be drawn from the District Court’s opinion that the District Court did not believe the government’s excuses. However, the District Court did not directly accuse the government of intentional wrongdoing. Instead, the District Court said that if the government did it again, it would proceed at its peril. In other words, go forth and sin no more.

However, if the Court really felt that the government’s excuses were “curious” and “glib,” and further believed that the defendants’ motion to suppress would turn on whether the violation was “inadvertent and unintentional,” at a minimum, the District Court should have (1) made a finding of deliberate wrongdoing by the prosecution, (2) granted the motion to suppress and (3) identified the offending prosecutors by name in the opinion.

As to the last point, it is worth noting that courts often will publish opinions critical of prosecutors without identifying the prosecutors by name. There appears to be no basis for this omission other than to show deference to the prosecutors simply because they are prosecutors.

From The Insider Blog:  White Collar Defense & Securities Enforcement.