By Sara Kropf
When a regular person does something wrong, the Department of Justice has no qualms about bringing criminal charges against him. When the Department of Justice does something wrong, well, it asks for a second chance.
A few years ago, I wrote about how the Department of Justice can avoid creating disclosable Brady material by not documenting exculpatory witness statements in interview memos (called “302s”). FBI agents should document everything that a witness says during an interview in a 302, but there are no rules to enforce this obligation nor is there any consistent way for defense counsel to check whether the agents did so.
In fact, the criminal justice system virtually guarantees that the accuracy of most 302s will never be challenged: 98% of federal criminal cases end in a plea bargain and DOJ need not provide discovery/302s during plea negotiations; government witnesses are often unlikely to talk to defense counsel to confirm or deny the accuracy of the 302; the defense usually does not receive the agents’ rough notes to compare them to the final 302s for completeness, and so forth.
In the conclusion of my 2021 post, I noted that “I have no idea how widespread the problem is . . . [because] there’s no way to track how often it happens.”
A recent case in the Southern District of Texas shows that this problem certainly has not disappeared.
In that case, DOJ accused four defendants of a $140 million health care fraud scheme. The first indictment was in 2018 and trial finally began in early November 2022. After a month of trial, the court ordered the government to double-check that it had disclosed all witness interviews and notes. (It’s not clear from the filings or docket why this happened.) The government then produced nine additional interview memos. It also asserts that because it wanted to “apply[] the broadest possible lens to the Court’s order” to produce all notes, it also reviewed and produced the rough interview notes taken by the agents as well as the 302s.
Two of the nine late-produced interview memos were from a key cooperating witness—one from an interview conducted just a week before trial and one from an interview conducted four months before trial.
The prosecutors claim that this mid-trial review was when they “became aware for the first time of discrepancies between certain interview memoranda and the related rough notes, and disclosed those discrepancies to defense counsel.” One discrepancy related to the interview of a key cooperating witness in the trial. And it was such a large discrepancy that the government moved to dismiss one of the defendants just a few days after producing the memo and notes.
This is a fairly staggering result. The most likely conclusion from this chain of events is that during his interview, the cooperator said something that severely undermined the government’s case against one (or more) of the defendants. The agent took notes on that exculpatory statement but then did not include that exculpatory statement in the 302, which is the formal typed-up record of the interview.
To be clear, it would be common practice for a prosecutor (not just FBI agents) to attend an interview of a key cooperating witness and the defense points out in a later filing that prosecutors did attend witness interviews in this case. And it would also be common practice for a prosecutor to review the 302s of a cooperator to prepare him to testify during the trial. But even though the cooperator gave statements that exculpated one of the defendants and even though the agent apparently did not document that exculpatory evidence in the 302, the prosecutors did nothing to correct this problem. They went ahead and put the cooperator on the stand anyway.
The same day the court granted the government’s motion to dismiss one defendant due to these discrepancies, the court also declared a mistrial as to the other defendants. The court did so on its own, not by motion by either party. In fact, one of the defendants objected to the mistrial.
Following the mistrial, the court began grappling with next steps. The defense moved to dismiss the indictment with prejudice and bar a retrial on Double Jeopardy grounds. (Normally, a mistrial permits a second trial.) The defendants ask the court to exercise its discretionary authority to dismiss the indictment on due process grounds because of prosecutorial misconduct and to preclude the government from retrying the case.
Specifically, the defendants claim that one reason the court should not permit a retrial is because:
on numerous occasions, law enforcement agents obtained information during witness interviews that was favorable to one or more than one defendant but omitted that information from the written reports (“302s”) that the agents prepared for prosecutors and that prosecutors then produced to the defense to prepare for trial; these repeated omissions deprived the defendants of their constitutional rights to have counsel effectively confront and cross-examine those witnesses.
In response, the government does its usual song-and-dance. It admits there was a mistake but denies any intent. The government says that the failure to produce the nine interview memos was just an “inadvertent failure of process” and the nine memos “simply fell through the cracks.”
After the court raised concerns, DOJ apparently conducted its own internal investigation into what happened. It says that a “review team” interviewed the three trial attorneys (the filing does not name them) and seven government agents (it includes the agents’ names). According to DOJ, “the review team found there was no bad faith or nefarious intent.”
Seriously. Come on. We are supposed to credit DOJ’s conclusion that there was no “nefarious intent” by DOJ prosecutors?
“Hi, this is the fox. I’m calling from the henhouse. I’m guarding it, and everything is fine here. Bye!
Although it does not contest that exculpatory information was not included in the 302s, DOJ argues that the missing information was essentially captured by other 302s. And DOJ also contends that “[n]one of the defendants explain with any specificity which material information they claim was suppressed and how they, individually, were prejudiced by it, as they are required to do,” and that “any possible prejudice to the defendants has been cured by the Court’s declaration of a mistrial.”
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The argument that the mistrial-and-retrial solution would “cure” any prejudice is complete and utter hogwash. I’m a Very Serious Lawyer, so I’m not going to use the word the first came to mind when I heard this argument. It rhymes with “wool knit.”
Here’s why a second trial does not “cure” the prejudice to the defendants:
First, once a trial has occurred (or even part of a trial) DOJ has a preview of the defense case. The element of surprise in a trial is a defendant’s best weapon. It’s often the only one. You get one shot at confounding a government witness with a line of questioning she did not expect or catch the government unawares with a novel reading of a document. When you retry a case, the government can fix the holes in its presentation of evidence and prepare its witnesses to withstand cross examination on the unexpected topics that came up during the first trial. The government can even locate, interview, and subpoena new witnesses to counter the now-known defense theory of the case.
In short, having a second trial can never “cure” the prejudice that arises from allowing the government to preview your defense.
Second, the first trial often drains the financial resources of the defendant. A lengthy federal trial can cost hundreds of thousands of dollars of dollars or more. (To put things in perspective, former Theranos CEO Elizabeth Holmes reportedly spent north of $30 million on one trial—and she lost.) DOJ, on the other hand, need not worry about the cost of a retrial.
I suppose there is a theoretical “cure”—DOJ could reimburse the defendant for all his attorney’s fees to prepare for the first trial. I’ve never seen such a cure offered anywhere and I’m pretty sure that I’d be laughed out of court for suggesting that DOJ pay my client’s fees for a second trial.
Third, there is a third uncurable prejudice to the defendant, which is to suffer through the stress of a second trial. I’ve seen many clients live through a trial—just barely holding it together for each day in court. During trial, clients can’t eat, can’t sleep, can’t function, can’t work, can’t get exercise, can’t be a spouse/partner/parent/caregiver to their families. A second trial only deepens this trauma. A defendant may be worn down enough to accept an attractive plea bargain rather than going through a trial again.
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In the end, a retrial is a benefit to the government and a detriment to the defense. Why should DOJ benefit from its own wrongdoing here or anywhere? Even if you think DOJ failures here are a mistake or an “inadvertent failure of process,” the fallout from that mistake should fall on the government and not on the defendants.
Plus, the only way to deter these types of violations is to punish DOJ by dismissing the indictment altogether, not by allowing DOJ to benefit from its wrongdoing by allowing it a second trial. While I’m sure DOJ would also prefer not to try the case a second time either, it wins more than it loses from a second trial.
When I see arguments like the ones DOJ makes here about how things “fell through the cracks” and there was no “bad faith,” I always wonder if anyone—anyone—in DOJ recognizes the irony in them. DOJ say that its failure to abide by the rules is just an unintentional “mistake” and not worthy of punishment. But DOJ regularly refuses to credit this same argument when a defendant makes it. Even if a defendant admits a mistake, the result is never to drop the charges.