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Court crafts warning for witnesses

When federal prosecutors tried to get an edge with potential witnesses in a criminal case, a public defender cried foul and asked the court for more time to undo the damage.

Alexandria U.S. District Judge Gerald Bruce Lee not only granted a three-week continuance, he drafted a detailed letter to be sent to all potential witnesses spelling out their right to talk – or not – to lawyers on both sides of the case.

The government has charged law school grad Nazanien Ebrahimi with offenses arising from her business management of a dental practice, according to Lee’s Oct. 9 opinion in U.S. v. Ebrahimi.

When the federal public defender started contacting potential witnesses to investigate the charges, he began hearing that they either did not want to talk to him or would only speak to the defense with a government agent present. The prosecution readily admitted to making two “requests” of witnesses: that they let the government know if they were contacted by the defense and asked to make a statement about the case, and that if the witness provided such notice to the government, it would request an agent to be present during the interview with defense counsel.

The government’s communication to potential witnesses was “inappropriate and impermissible,” Lee said, citing a 1966 D.C. Circuit case, Gregory v. U.S. Such contacts with witnesses obstructed the defendant’s “legitimate need for unhindered access to information” to prepare for trial, and could impermissibly influence the witnesses, Lee said.

In addition to giving the defense extra time, Lee dictated the terms of a letter to go out on court letterhead to potential witnesses, stating that the government’s “requests” “are not in keeping with the Court’s judgment here that as a witness, you are equally available to lawyers for the defense and the Government at your own discretion. As a witness who may testify in court, you have the option to consent to an interview by counsel for the defendant and counsel for the Government. You have the option to decline such an interview if you are inclined.

“An interview outside of court is a way the lawyers can learn more about your proposed testimony in preparation for trial,” the letter advised. “You are not required to notify the Government of contact with defense counsel. You are also not required to have a Government agent present at your interview, if you decide to consent to an interview.”

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