Federal prosecutors in Washington are mulling whether to ask a judge here to reconsider her conclusion that the government was wrong to hold onto certain beneficial information in a criminal case against a longtime criminal defense lawyer.
The defense lawyer, Charles Daum, and two private investigators, are preparing for trial on charges of participating in a scheme to dupe jurors in a drug case in 2008. Daum and the investigators have denied government allegations rooted in the manufacture of fake evidence.
Justice Department lawyers ran afoul of their discovery obligations by holding onto witness information that undercuts the government’s case, U.S. District Judge Gladys Kessler said at a recent hearing. Kessler said “there is not the slightest doubt” that the government violated its obligation to turn over exculpatory information, committing a so-called "Brady violation."
“In this day and age with all of the publicity going on about Brady issues, not just the (Ted) Stevens trial, the series that is running these days in the Washington Post, so many other cases that are being dug up, it is hard to fathom why the government would not be super, super attentive to the issue of what is and what isn’t Brady,” Kessler said, according to a transcript.
Prosecutors say Daum and the investigators, Daaiyah and Iman Pasha, used staged photos in a federal drug case in 2008 in Washington to dupe jurors into thinking a client’s brother was actually guilty of drug possession.
After a mistrial, prosecutors determined the defendant and several others were in on the scheme. Daum and the Pashas were indicted last year. The government contends the alleged ethical breach in the drug case was not the first time Daum played loose with professional rules.
The information that prosecutors recently provided to the defense lawyers in the case is “totally inconsistent” with the government’s theory of the case, Kessler said at an April 19 hearing.
A new witness, whom the government interviewed last July, provided information that potentially undercuts the government’s charges against the two investigators. Prosecutors believe Daum sent the Pashas to a client’s house to stage photographs.
The Pashas are both women. If an unidentified man was involved in the alleged evidence manufacturing scheme, as the witness suggested, then the case against Daum and the Pashas could become more tentative.
A Justice Department narcotics division lawyer, Donnell Turner, said at the recent hearing that the government did not commit a Brady violation.
Turner argued there are three components to any violation: the material must be favorable to the defendant; the evidence must be suppressed; and there must be some harm to the defendant.
Turner denied that the witness information that was recently given to the defense lawyers is favorable. “If the evidence is favorable to the defense, then they would want to call” the witness themselves, the prosecutor said.
The government, Turner also said, did not suppress the witness evidence. He said the defense lawyers in the case received the information well in advance of a court-imposed deadline to turn over any favorable information.
The defense, Turner said, still had ample time to make use of the information before trial, which is scheduled for May 7. There is no requirement, Turner said, for prosecutors to turn over exculpatory information as soon as the government obtains it.
“The government’s policy, the DOJ’s policy is to provide Brady information, information of an exculpatory nature as soon as we become aware of it,” Turner said in court. “I acknowledged that I did not do that in this case, but that does not constitute a violation of Brady.”
The prosecutors in the case said in a recent filing that they are reviewing whether to ask Kessler to reconsider her finding that the government committed a Brady violation.
Lawyers for Daum and the Pashas have not yet filed court papers indicating what sanction should be imposed against the government.
A lawyer for Daaiyah Pasha, Cozen O’Connor partner Bernard Grimm, said this week that the defense will file a sanctions request on May 2.
At the recent hearing, Grimm said the new witness evidence “violently exculpates Mr. Daum because if Mr. Daum sent two women to stage this, who is this man that this person has now described in detail?”
Kessler, at the hearing this month, did not make a ruling on bad faith. “That ruling is not necessary at this time, and I am certainly not prepared to say the government acted in ‘bad faith’ especially in light of the fact that the government has been very forthcoming in providing a great deal of other information to the defense.”