The attorneys representing a Washington defense lawyer and two private investigators who were convicted in a scheme to dupe jurors want a judge to grant a new trial over allegations of government misconduct.
The judge, Gladys Kessler of U.S. District Court for the District of Columbia, found longtime defense attorney Charles Daum and the two investigators guilty in June for their roles in a conspiracy to manufacture fake evidence in a drug prosecution.
Daum's lawyers and the attorneys for the two private investigators blamed Daum's former client and his relatives and friends for developing and executing the evidence plot. Daum's lawyers said he had nothing to do with the plan, which pinned the blame for drugs on another person, and that Daum merely presented the evidence his client disclosed to him.
At issue in the motion for a new trial is whether the trial judge should have dismissed the indictment for the Justice Department's alleged failure to turn over information beneficial to the defense in a timely fashion. That information has to do with a witness statement the government provided to Daum and the investigators, Daaiyah and Iman Pasha, about a month before the start of trial.
Kessler assailed the Daum prosecutors for holding onto the information for as long as the government did. But the judge, who found that DOJ violated its obligation to turn over favorable material, did not throw out the case.
Lawyers for Daum, represented by David Schertler of Washington's Schertler & Onorato, and the Pashas want Kessler to revisit that decision. They've asked Kessler for a new trial.
"Meaning no disrespect to the court, normally in situations like this the court simply chastises and reprimands the government," Cozen O'Connor partner Bernie Grimm, who represents Daaiyah Pasha, said in court papers (PDF). "This explains the rampant, continuous and troublesome Brady violations by this office over the past decade."
Grimm said in the papers that "inaction or minor action by the Court in response to these violations serves to reward the government for its disregard of Brady v. Maryland. The only message that the government understands is a court-imposed sanction. Without this, the government’s behavior will continue."
Prosecutors, including Tritia Yuen and Darrin McCullough, trial attorneys in the Criminal Division's narcotics section, said in court papers filed July 9 that the witness disclosure in April was made one month before trial and two weeks before a court-ordered deadline.
The witness statement put into question the identity of the people took part in the actual staging of photos that would later be introduced into evidence at the underlying drug trial.
"A new trial is not appropriate because the government was at all times acting in good faith, the witness was available and ready to testify, his credibility was inherently suspect given the number of varying and contradictory statements he gave regarding the incident in question, and the evidence against the defendants was overwhelming," prosecutors said in court papers.
DOJ lawyers said the government produced "prodigious amounts of discovery" and conducted follow-ups with the defense lawyers to answer questions.
Kessler, earlier, said she didn't think at time that the government acted in bad faith by clinging to the witness information.
Still, the judge said the late disclosure of the information created "very substantial prejudice" for the defendants.