In May, U.S. Court of Appeals judges were so upset with federal prosecutors from North Carolina’s Eastern District for persistently hiding or mishandling criminal case evidence that a tongue-lashing, perhaps never heard before in the stately wood-paneled 4th U.S. Circuit Court of Appeals courtroom in Richmond, Va., was delivered from the bench.
“I’ve been an appellate judge for 28 years, and I have never made these kinds of comments to a prosecutor, never,” Appeals Court Judge Barbara Keenan told the prosecutor from the U.S. Attorney’s Office in North Carolina’s 44-county region that stretches from Raleigh to the coast. “But the increasing frequency from your office of this kind of conduct is really troubling, really troubling.”
The circuit judges followed with a ruling two weeks ago in the securities fraud case of United States v. Gregory Bartko, suggesting that a prosecutor had ignored false testimony instead of correcting it during trial, among other concerns. The judges said the case further highlighted a troubling pattern of Eastern District prosecutors withholding evidence from defendants. They asked U.S. Attorney General Eric Holder to review the behavior.
That has led to a shakeup at the U.S. Attorney’s Office for the North Carolina Eastern District. Thomas Walker, the appointed U.S. attorney since 2011, confirmed changes to the top ranks of his staff and said in an interview that he has adopted new rules for handling evidence in criminal cases.
Robert Higdon, the federal prosecutor who oversaw the work of nearly 30 assistant U.S. attorneys and two dozen special U.S. assistant attorneys prosecuting terrorism, drug, violent and white collar crime cases, now will no longer serve as the criminal chief, a position he held since 2002.
Higdon, who declined to comment on the staff changes, was a significant force behind the prosecution of John Edwards, the former U.S. senator and presidential candidate whose campaign-finance fraud trial resulted in an acquittal on one count and the dismissal of five other charges after a hung jury. Higdon will move into a senior litigator role. Longtime prosecutor Dennis Duffy, who had been serving as a senior litigator, becomes the new criminal division chief.
J. Frank Bradsher, who oversees the narcotics section at the root of many of the evidence problems, is being moved out of his job as deputy chief for the narcotics section. Prosecutor Leslie Cooley will assume that role.
Walker declined to discuss his internal management decisions. But in an interview, he talked broadly about his efforts to bring a new “transparency” to his office with policies outlining more checks and balances with hopes of restoring accountability.
In a petition filed Friday seeking a rehearing in the Bartko case, Walker outlined steps his office has taken in recent months to ensure that his office has been open with its “discovery,” the pre-trial phase of exchanging information, and providing a defendant with constitutionally required fairness and due process.
“We admit that there have been some discovery failures on our part,” Walker said in the petition to the appeals court panel.
But Walker, who was appointed to head the Eastern District office in July 2011 by President Barack Obama, asked the court “to reconsider its suggestion” that errors were “intentional, that trial counsel intentionally ignored false testimony, and that appellate counsel misled the court” in response to questions at oral arguments.
Judges express concern
According to online recordings of the Bartko oral arguments in May, Judge Henry Floyd had quickly interrupted the government lawyer in arguments about the case. Floyd said it was his second that week where the Eastern District office had violated discovery rules.
“Now it’s time for the Eastern District of North Carolina to clean up its act,” Floyd said from the bench. “You’re playing fast and loose. Our job’s ... not to protect the government. It’s to make sure that you and Mr. Bartko get a fair trial. And, there’s a pattern over there.”
Judge Barbara Keenan agreed there was a troubling pattern and history.
“It’s really gotten to the point, as far as I’m concerned, when I pick up a brief from your office, I’m looking for trouble,” Keenan said. “Two times last term, same thing, misrepresentations from my perspective, not being fully forthcoming. It’s really creating a credibility problem for your office.”
In the Bartko case, prosecutors had struck an agreement with a key witness and his wife that limited how the government would use information provided during an investigative interview.
Prosecutors failed to share that with defense lawyers who could use it during cross-examination to impeach the witness’s credibility.
Asked why the trial prosecutor, Clay Wheeler, allowed the witness to testify that the government made him no promises, assistant U.S. Attorney Kristine Frist had a simple answer for the court: He forgot.
Kennan dismissed that argument, saying it “just strains credulity.”
The judges ordered the court clerk to send the written Bartko opinion to Holder and the Office of Professional Responsibility, the arm of the U.S. Department of Justice that disciplines prosecutors.
The opinion also listed three other problematic cases where prosecutors mishandled evidence:
• During a case in which prosecutors sought to keep a sex offender in prison after his sentence expired, prosecutors failed to tell defense lawyers ahead of time that one of his victims would testify, depriving them of the ability to prepare for the hearing.
• In a firearm and drugs case from Wilmington, prosecutors refused to hand over grand jury testimony that could be favorable to the defendant, even after the judge suggested that they do so. The appeals court threw out the firearms conviction.
• In a complicated drug-trafficking case spanning two states, the judges were disturbed that prosecutors missed court-imposed deadlines and delivered more than a thousand pages of evidence just before the trial started.
Case of misidentification
Interviews and court records reviewed by The News & Observer point to other troubling cases not mentioned in the Bartko decision.
One was a drug case from Wilmington in which prosecutors had charged two men, Antwon Obey and Corey Carroll, with eight counts of drug trafficking and conspiracy. If convicted on all counts, they would have faced 50 years or more in prison. Seven of the eight counts relied on the testimony of a confidential informant.
In July 2012, during an initial hearing, a federal agent testified that the confidential informant and his wife had identified Obey as the person who threatened them with a handgun at a street corner in Smithfield.
But in February this year, Assistant U.S. Attorney Rudy Renfer Jr. told Obey’s lawyer that the wife had been mistaken. The case proceeded on the strength of the confidential informant.
Renfer gave the lawyer two reports from the federal agent, but they contained deleted sections.
In a May court appearance and a June court filing, Renfer insisted that it was only the wife who misidentified Obey.
Obey’s lawyer repeatedly asked for the full reports from the federal agent. Renfer handed them the full statements three days before the trial began. Contrary to Renfer’s repeated assertions in writing and in court, both the informant and his wife had misidentified Obey.
“The government’s repeated representations to counsel and this Court concerning the misidentification of Mr. Obey have been completely and inexcusably false,” Obey’s lawyer wrote in a motion to dismiss the case.
The government quickly settled the case, dismissing the drug charges and allowing Obey and Carroll to plead to two counts of conspiracy, which allow for a maximum sentence of 10 years. Renfer declined to discuss the case.
The defense lawyers in the case, Damien Blue and Josh Howard of Raleigh, declined to discuss the facts of the case. Both said they were very pleased with the outcome.
Walker said the “government’s representations in that matter are under review at this time.”
‘There were mistakes’
Bradley Bannon, a Raleigh defense lawyer who works on federal cases, said Walker’s new policy, now posted on the Eastern District website, is “an outstanding development and should be applauded.”
It is broad and addresses specific loopholes, Bannon said, pre-empting arguments that prosecutors have made in the past of being unaware of their obligations.
One downside, Bannon said, is that the nonbinding policy does not carry the force of law. In state courts, North Carolina statutes require prosecutors to share all evidence with defendants. Violations of the law can lead to cases being dismissed, evidence excluded from trials or sanctions against prosecutors – including losing their law licenses.
With no external legal consequences, it’s up to the U.S. attorney to hold his staff personally responsible, Bannon said.
In a telephone interview Friday, Walker declined to discuss the specifics of pending cases. The cases mentioned in the 4th Circuit ruling last month spanned seven years. George E.B. Holding, now the U.S. House member for the 13th Congressional District, which includes Wake County, served as the Eastern District’s top prosecutor from 2006 to 2011.
Walker said that as the current head of the district, he assumes responsibility for ensuring that prosecutors in his office are following the rules.
“There were mistakes made; we’re not in denial,” Walker said Friday. “Particularly in the area of drug cases, the government has a huge hammer with which it has to exercise discretion.”
Prosecutors, he said, must be held “to the highest standards,” and misconduct, intentional or not, is not “harmless” to the justice system. Not only will the policies for turning over evidence be on the district’s website for all to see, he also has asked that agents’ notes be turned over to defendants, something that Walker said distinguishes the Eastern District from others in the 4th Circuit.
“I think the court in the Bartko case raised serious and legitimate concerns,” Walker said. “I do not believe there was intentional misconduct. However, prosecutors are held to the highest ethical standards, and sloppiness and even unintentional mistakes can lead to the erosion of public confidence in our system of justice.”