RALEIGH, N.C. (AP) — A federal appeals court said it is concerned by what appears to be a pattern of federal prosecutors in eastern North Carolina failing to fully turn over evidence that defendants should be aware of in advance of a trial.
The three-judge panel of the 4th U.S. Circuit Court of Appeals, based in Richmond, is presenting its concerns to U.S. Attorney General Eric Holder and to the Office of Professional Responsibility, which handles the Justice Department’s internal investigations.
The court said it found three cases in the past two years in which government prosecutors in the Raleigh-based region abused their duty to turn over evidence. In its ruling issued Friday in a fourth case, the court said prosecutors failed to correct a witness’s false statement during a trial.
“What we know is that we are repeatedly confronted with charges of discovery abuse by this office,” Judge Henry F. Floyd wrote for the panel. “What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable.
“Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.”
The court’s rebuke of prosecutorial conduct is uncommon. Judges are highlighting them more often because high-profile cases have gained more attention in the news media, Loyola Law School professor Laurie Levinson was quoted as saying by The News & Observer of Raleigh, which first reported the story Tuesday.
“It is unusual, but it is not unheard of,” said Levinson, who teaches ethical lawyering.
The problem cases highlighted by the appeals court were prosecuted by attorneys working under current U.S. Attorney Thomas Walker and predecessor George Holding, now a U.S. congressman from Raleigh. Both said Tuesday they trusted the work of the professionals they led, but that allegations of misconduct must be treated seriously.
“To the extent that mistakes were made, the Office of Professional Responsibility will investigate them and they will have corrective action,” Holding said.
Walker, who succeeded Holding in 2011, said the case under his watch that the court criticized involved prosecutors deciding to withhold the identity of a witness abused as a boy by a man accused of being a sexual predator. The witness was produced after the defendant denied the abuse during his trial, Walker said. After defense attorneys objected, the federal trial judge let the witness testify, Walker said, a decision that was appealed to the Richmond-based court.
“To the extent that the court has concerns about that, I continue to monitor those concerns,” Walker said. “We should be held to the highest ethical standards. The system absolutely depends on that.”
The case that prompted the court to issue its warning is that of Gregory Bartko, who was convicted in 2010 in a conspiracy to sell millions of dollars in fraudulent securities to about 200 investors in 21 states, including several Baptist churches.
The court scolded prosecutors for failing to correct a witness who testified he’d gotten “no promises” from the government in exchange for his testimony. In fact, prosecutors had made former Kernersville investment adviser Scott Hollenbeck several promises on how the information he gave during an interview with investigators would and would not be used against him.
“Because the government made those promises, it had a duty to correct Hollenbeck’s answers when he testified falsely that it had not made any promises,” Floyd wrote in the ruling. The prosecution’s misstep wasn’t enough to force a new trial because the evidence against Bartko was too great, Floyd wrote.
The problem in Bartko’s case and others is that government lawyers appeared to be betting that reams of evidence against defendants will make moot their failure to turn over some materials and ignore false testimony, the opinion said.
“The United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable,” Floyd wrote. “Something must be done.”
– By Emery P. Dalesio