Please ensure Javascript is enabled for purposes of website accessibility
Home / News Stories / Feds drop charge after judge finds misconduct

Feds drop charge after judge finds misconduct

A finding of prosecutorial mis­conduct by a U.S. attorney’s of­fice was expected to bring free­dom for an alleged pill pusher serving an 11-year sentence.

A Lynchburg federal judge overturned con­victions of the drug defendant based on miscon­duct by prosecu­tors who white­washed their required disclo­sures about a discredited cop. The judge or­dered a new trial but, in the wake of the judge’s blistering opinion, government lawyers announced last week they would move to drop the prosecution.

U.S. Attorney John P. Fishwick Jr. “has decided based on the court’s de­cision and his understanding of the case, that it is in the best interest of justice to dismiss the case,” a spokes­person said after the announcement.

Ordering a new trial on July 14, U.S. District Judge Norman K. Moon took the unusual added step of or­dering the removal of a prosecutor from the case. He concluded the gov­ernment’s failure to fully disclose the ex-detective’s misdeeds was “not an inadvertent oversight.”

Moon said assistant U.S. attor­ney Ashley B. Neese ignored advice from an in-house expert who said the damaging information should be disclosed to the judge and to defense counsel. Instead, Neese provided only a “diluted and sanitized account” of the detective’s actions, Moon said.

Moon declined to dismiss the in­dictment against accused drug dealer Les Burns, but he said it was a close call. Instead, Moon ordered a new trial in which the defense would be armed with the details of the detec­tive’s crude advances toward a wit­ness in the case.

“In sum, the Government failed to exhibit candor toward this Court and has compromised the validity of Burns’ conviction,” Moon wrote in U.S. v. Burns (VLW 016-3-319).

On July 20, prosecutors told Moon that they had recommended that the Justice Department not appeal his ruling and that they would seek leave of court to dis­miss the case against Burns.

The recommendation was to be re­viewed by the Solicitor General’s office, the prosecutors said.

“That process is underway but has not yet been completed. We have asked for that review to be expedited,” a spokesper­son said afterwards.

Operation Pain Train

The investigation, dubbed “Operation Pain Train,” was focused on trafficking in prescription painkillers in and around Bedford County.

Burns was nabbed for drug possession in a 2012 traffic stop and sought to work as an informant to reduce his penalty, according to Moon’s opinion. Burns was later thought to be working both sides and he came under questioning in 2013 by Pain Train’s lead investigator, Bedford County detective Christopher Cook.

Burns made a number of incriminating statements when interviewed by Cook and Neese, Moon said.

About two weeks later, Neese learned that Cook had made brutish sexual over­tures to a possible government witness during the pill investigation. Cook also lied to the witness, telling her he was not married and that she was a target of the investigation.

Cook was removed from the pill investi­gation, demoted and reassigned.

Eleven-year sentence

In late 2013, Burns was charged with conspiracy.

The government’s in-house expert on “Brady” rules for mandatory disclosure of favorable information told Neese that the dirt on Cook needed to be turned over to Burns’ counsel.

Burns was represented by Charlottes­ville’s J. Lloyd Snook at the time.

Neese did not disclose Cook’s actions at the time. She reasoned that prosecu­tors did not intend to call Cook at trial and that government policies and privacy laws barred disclosure.

When Burns claimed his confession was coerced, however, prosecutors sought to alert the judge to Cook’s behavior and get a ruling on whether the incriminating details had to be disclosed to the defense.

The report to the judge was only a “bare summary” of Cook’s encounter with the witness, Moon said. Prosecutors described Cook’s actions as “flirtatious,” omitting his attempt to pull the woman into his lap and his display of his penis. The report also left out Cook’s lies to the witness.

Despite the “soft-peddling,” by the gov­ernment, Moon said he ordered the gov­ernment to give the information on Cook to the defendant because it tended to im­peach Cook.

Burns did not fare well at trial. Moon allowed Burns’ confession as evidence and ruled that Cook could not be questioned about the witness incident. Cook took the stand and testified, without impeach­ment, about Burns’ purported confession.

Burns was sentenced to 136 months.

Litigation of Brady issue

Represented on appeal by Paul G. Beers of Roanoke, Burns obtained the docu­ments that revealed the sordid details of Cook’s misconduct. He asked Moon to kick the criminal charges entirely or to order a new trial.

“This is not the ‘rare case’ requiring dis­missal, although it is close,” Moon wrote as he ordered a new trial.

First, the evidence could have helped Burns, the judge said.

“Considering Cook’s abuse of power over a citizen in this very case, a jury could reasonably question Cook’s judg­ment as a police officer and the validity of his investigation,” Moon said.

Secondly, prosecutors “consciously pro­vided only a skeletal summary” of Cook’s meeting with the witness, Moon said, characterizing as flirtatious “what might be more appropriately called sexual as­sault.”

Finally, Moon concluded the situation undermined confidence in the trial out­come.

Cook “remained untainted by his own undisclosed conduct, allowing the Govern­ment to capitalize on a purported confes­sion through an unimpeached investiga­tor,” Moon said.

‘Good faith’ finding denied

Moon expressly rejected prosecutors’ request to find Neese’s actions to be in “good faith.”

“I cannot find the Government acted in good faith,” Moon said, directing the U.S. attorney to remove Neese as counsel in the case.

The prosecutors’ office notified Moon the next day that Neese had been re­moved from the case as counsel for the government.

Singling out a prosecutor for removal from a case makes Moon’s ruling unusual, said law professor Adam M. Gershowitz at the College of William & Mary. Brady violations are often exposed after the fact, he said.

“What’s unusual is to see a judge say, ‘I think you did this on purpose, and I’m go­ing to call you out by name,’” Gershowitz said. “That part is really rare.”

Moon’s ruling was welcomed by Rich­mond criminal law attorney Betty Layne DesPortes.

“Prosecutors too often fail to follow the requirements of Brady, and courts too of­ten fail to impose any consequences,” she said, adding, “Judge Moon’s decision is both correct and commendable.”

Snook said it was encouraging that the matter got new life when a different U.S. attorney handled the appeal.

“When the new U.S. attorney got into the case, the additional information was promptly turned over, and it appears that everything that happened after that was perfectly above board,” Snook said.

When prosecutors announced their in­tention to dismiss the case against Burns, pending review of the case by the U.S. Solicitor General’s office, Beers request­ed that Burns be released on unsecured bond.

“He’s pulled three and a half years, your honor,” Beers said to Moon in a telephone conference.

“The government does not oppose that,” said assistant U.S. attorney Rick A. Mountcastle.

“I’ll grant that motion,” Moon said, ac­knowledging he could not say how quick­ly Burns might be released. Beers said Wednesday he hoped Burns might be re­leased by Friday.

VLW 016-3-319