US Fourth Circuit Appeals Court rebukes federal prosecutors in NC's eastern district

ablythe@newsobserver.comAugust 26, 2013 

  • U.S. Attorneys in the Eastern District of North Carolina

    Thomas G. Walker, appointed by President Barack Obama and confirmed unanimously by the U.S. Senate, began the job of overseeing approximately 43 assistant U.S. attorneys and 57 support personnel in July 2011.

    Obama nominated Walker in 2009, but several key political corruption investigations underway in that district postponed Walker’s appointment for several years.

    George E.B. Holding, now the U.S. House member for the 13th congressional district, a nine-county area that includes Wake County, served as the Eastern District’s top prosecutor from 2006 to 2011.

    Holding, a Republican, was appointed by President George W. Bush as U.S. Attorney for the Eastern District. He remained in the post three years after Obama was elected under an agreement with North Carolina’s two senators Richard Burr, a Republican, and Kay Hagan, a Democrat, to allow the conclusions of probes into John Edwards, a former U.S. senator and presidential candidate, and former Gov. Mike Easley.

    Easley, a Democrat, pleaded guilty to a felony in state court, and Edwards, a Democrat, was acquitted on a charge of illegally using $1 million in campaign contributions to cover up his affair and child with Rielle Hunter, a campaign videographer.

    Read the Fourth Circuit opinion here:

— In a rare rebuke, the U.S. Fourth Circuit Court of Appeals has alerted the U.S. attorney general to what the court describes as a troubling pattern by federal prosecutors of withholding evidence from defendants in North Carolina’s Eastern District.

Circuit judges said in a ruling released Friday that a cursory review of Fourth Circuit’s opinions revealed at least three cases of “discovery abuse,” or failing to turn over evidence, in the 44-county region that stretches from Raleigh to the coast.

Among the problems cited were a prosecutor’s turning over of 1,000 pages from a case file to the defendant a week after the deadline and just one week before trial, arguing that the action was excusable because of a power outage in the Raleigh courthouse, that an order setting deadlines was misread, and that it was a last-minute decision to use certain evidence. Other problems included prosecutors’ failing to turn over evidence that might have been beneficial to a defendant in a firearms case, and leaving the false testimony of a witness uncorrected.

“Mistakes happen,” Circuit Judge Henry F. Floyd wrote Friday in a decision in the security fraud case of the United States v. Gregory Bartko. “Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the ‘flubs’ committed” by the Eastern District prosecutor’s office “raises questions regarding whether the errors are fairly characterized as unintentional.”

Two of the problematic cases listed by the appellate judges happened when George Holding, now a Republican U.S. congressman, was at the helm of the prosecutor’s office. Another happened under the leadership of Thomas Walker, the current U.S. Attorney for the district.

In the securities fraud case ruling, the appellate judges upheld the lower court decision against Bartko but continued with their rebuke of the prosecutors’ office.

“We may find such practices ‘harmless’ as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless,” Floyd wrote.

Floyd, with approval from Circuit Judge Barbara Milano Keenan and Henry E. Hudson, a U.S. District Judge for the Eastern District of Virginia, instructed the circuit court clerk to send a copy of their ruling in the Bartko case to the U.S. attorney general and the Office of Professional Responsibility for the Department of Justice. He asked that an accompanying lawyer highlight the section about prosecutorial concerns.

“[T]he United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees, and misrepresentations erode faith that justice is achievable,” Floyd wrote in the opinion. “Something must be done.”

Laurie Levinson, a professor at Loyola Law School in Los Angeles who teaches ethical lawyering, said judges are highlighting cases of prosecutorial misconduct more often after high-profile cases have gained more media attention, but actions similar to the one taken by the Fourth Circuit appeals court remain uncommon.

“It is unusual, but it is not unheard of,” Levinson said.

Walker, the district’s top prosecutor since July 2011, said he was troubled by the reports and planned to do what he could to make sure problems were curtailed.

Thousands of cases

In the Eastern District of North Carolina last year, more than 240 civil and criminal trials concluded, according to federal court data, and 3,068 new cases were filed by prosecutors, plaintiffs, prisoners and regulators,

“It is absolutely critical that the government abide by its disclosure obligations,” Walker said. “As prosecutors, we must strive every day to do so. The Court’s opinion raised concerns that we have worked – and will continue to work – to address.”

Holding, who was at the helm of the Eastern District prosecutor’s office from September 2006 until summer 2011, when he announced his campaign for the U.S. House in the 13th congressional district, said Monday he read the Fourth Circuit opinion.

“It was pointed,” Holding said. “Whenever the court is critical, we take it very seriously. … It does not undermine my confidence in the professional men and women who every day work as prosecutors.”

Holding said Monday that his office had a policy of open-file discovery, but in some cases, drug cases particularly, prosecutors withheld some information.

“One of the problems with open discovery is you can disclose confidential informants and put people in danger,” Holding said. But none of the cases discussed in Friday’s appellate decision discussed confidential informants.

Sometimes defense lawyers and prosecutors might have disagreed about what was “exculpatory,” or evidence that could have been favorable to a defendant, Holding added.

“In every case, there were potentialities for problems,” Holding said.

Wrong ‘for some reason’

Mary Judge Darrow, a former federal prosecutor in the Eastern District, was fired in 2004, when Holding was the second in command under Frank Whitney, a U.S. District judge in Western North Carolina who served as a U.S. Attorney from 2002 to 2006.

Darrow, who sued for discrimination and won a $170,000 settlement, said her superiors in the Eastern District prosecutor’s office referred her to the Office of Professional Responsibility in Washington. Her boss, Bobby Higdon, now chief of the criminal division of the Eastern District, wrote her up for handing over too much discovery to defense lawyers, she said.

“For some reason, that was wrong,” Darrow said Monday.

Darrow, an advocate of open-file discovery, said giving the full case file to defendants moved cases along and led to quicker plea deals.

Since Holder was appointed U.S. Attorney General, his office has offered more training on discovery issues for prosecutors.

“We urge the District Court in the Eastern District of North Carolina to meet with the United States Attorney’s Office of that district to discuss improvement of its discovery procedures so as to prevent the abuses we have referenced here,” Floyd wrote in the Bartko opinion. “Moreover, if this sort of behavior continues in subsequent cases, this court may wish to require that the United States Attorney for the Eastern District of North Carolina, as well as the trial prosecutor, be present at oral argument so that the panel can speak directly to her or him about any alleged misconduct.

“Sanctions or disciplinary actions are also options.”

Blythe: 919-836-4948

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