Updated 11:35 a.m.
Prosecutors in Washington today apologized for what the government called an "oversight" in the case against a local defense lawyer charged with trying to dupe jurors in a drug case.
The prosecutors handling the case against Charles Daum, a long-time defense lawyer in Washington, blamed an inadvertent omission for holding onto witness evidence for as long as the government did. Lawyers for Daum and two defense investigators today asked a federal trial judge to dismiss the case or issue sanctions.
A Justice Department trial lawyer, Donnell Turner, said in a court filing this afternoon that the prosecution has always maintained it would turn over exculpatory information as soon as the government learned about it.
“The government failed (mistakenly, but not in bad faith) to adhere to those policies, and it regrets that failure,” Turner said. “Nonetheless, the government’s deviation from its own internal policies does not give rise to legal remedies for the defense.”
Daum and the investigators, Daaiyah and Iman Pasha, are charged in U.S. District Court for the District of Columbia for their alleged roles in a scheme to trick jurors in a drug case in 2008.
Prosecutors alleged in charging documents that Daum used staged photos to convince jurors that a client’s brother was, in fact, guilty. The jury deadlocked and a mistrial was declared.
Prosecutors earlier this month provided to the defense attorneys in Daum’s case information that the trial judge says undercuts the government’s theory in the case.
A witness whom the government interviewed last year suggests an unidentified male—who is not charged—was involved in the scheme to manufacture evidence. The Pashas are both women.
Turner said the witness is the only person to say that a man showed up at the home of Daum’s client, Delante White, to help fabricate evidence. Four government witnesses identify the Pashas as having helped in the preparation of evidence that Daum later used to corruptly influence jurors. The witness’ recollection of the events, Turner said, is riddled with “significant inconsistencies.”
Prosecutors said in the court papers filed today that the government did not commit a violation of obligations to turn over favorable information.
“[A]lthough the government’s practice is to disclose exculpatory information as soon as it becomes aware of it, the law does not require immediate disclosure,” Turner said.
The Justice Department, Turner said today, provided the witness information to Daum’s lawyer, David Schertler, and to the attorneys for the Pashas still within time to be used at trial. Turner said the defense lawyers have not shown how the disclosure of the witness information has harmed Daum and the Pashas.
The trial judge, Gladys Kessler, commended DOJ for its early production of documents and other evidence since the inception of the case. But the judge said at a recent hearing that she has no doubt the government committed a so-called “Brady violation” in not producing the witness information sooner to the defense. Kessler did not speculate on any prosecutorial motive.
Turner said “in light of the government’s voluntary disclosure of voluminous discovery materials well in advance of the court’s deadline, its inadvertent omission here cannot be construed as bad faith.”
Lawyers for Daum and the Pashas today filed a motion to dismiss (PDF) the prosecution as a sanction for alleged misconduct. The witness' faded memory, the defense lawyers said, hurts Daum and the Pashas.
“[T]he government’s misconduct is merely the latest in a pattern of Brady violations and government overreach that reaches back decades in this jurisdiction,” the defense attorneys said. “In perhaps the most high profile matter, [the government] systematically withheld Brady material and relied on knowingly false evidence in its prosecution of former Senator Ted Stevens.”
Daum and the Pashas are scheduled for a bench trial in May.