HIDING THE FACTS

Discovery Violations Have Made Evidence-Gathering A Shell Game

Galen Kelly’s job had more risks than most. Parents hired him to rescue
their children from religious cults.

In 1992, Kelly, thinking he had found the daughter of a couple who had
hired him, grabbed a young woman off a Washington, D.C., street and
returned her to the family. But he had grabbed the wrong woman.

Federal agents charged the New York-based Kelly with kidnapping, and he
went on trial in Virginia.

He routinely faced risks in his job -- attacks by cult members who felt
threatened were not uncommon. But they were nothing compared to those he
would face trying to get a fair trial in federal court.

Throughout the proceeding, Kelly’s lawyers requested that Assistant U.S.
Attorney Lawrence Leiser of the Eastern District of Virginia turn over
discovery material.

Discovery material includes any evidence that might help prove a defendant
innocent. It also includes anything that might show the biases of a witness
against a defendant or background information that might lead jurors to
question a witness’s credibility.

Under federal law, defense attorneys are entitled to ask for discovery
information, and prosecutors must provide it.

Kelly and his attorney believed the woman Kelly was accused of kidnapping,
Debra Dobkowski, was a cult member who had set Kelly up by pretending to be
the woman she knew he was after.

Dobkowski testified she was not a member of the cult and that she’d had no
brushes with the law. Based largely on her statements, Kelly was convicted
and sentenced to seven years in prison.

Dobkowski, however, had lied.

She was one of the cult’s leaders, and when she testified, she was being
investigated for criminal mail fraud and money laundering.

Leiser knew about her lies, yet said nothing.

It was three years before an appeals court overturned Kelly’s conviction.
Dobkowki’s credibility was key to the government’s case, the court stated,
but her testimony was "false in numerous respects and the government at
least should have known it was false."

Leiser, the respected former head of the National Association of Assistant
U.S. Attorneys, was suspended from his job, though that action was later
overturned following an internal Justice Department appeal.

Even the short-lived suspension of Leiser, then 49, was unusual. What
Leiser did "was a bad judgment call, but one that was not indigenous to
Larry Leiser," Kelly’s attorney, Robert Stanley Powell, told reporters. "A
lot of federal prosecutors do what he did."

A two-year investigation by the Post-Gazette found Powell to be exactly right.

Its review of 1,500 allegations of prosecutorial misconduct over the past
10 years found hundreds of examples of discovery violations in which
prosecutors intentionally concealed evidence that might have helped prove a
defendant innocent or a witness against him suspect.

But most cases reviewed by the Post-Gazette shared a key difference from
the Leiser case: Prosecutors who violated discovery rules were seldom
punished. Many violated discovery rules over and over again.

An Issue Of Fairness

The discovery process is central to the American concept of a fair trial.

"Society wins not only when the guilty are convicted but when criminal
trials are fair," wrote U.S. Supreme Court Justice William O. Douglas in 1963.

"Our system of the administration of justice suffers when any accused is
treated unfairly."

His words were at the core of the Supreme Court’s Brady vs. Maryland
opinion, which set the standard for discovery rules in this country.

John L. Brady and an accomplice were convicted of murdering a man during a
robbery. Both were sentenced to death.

But during Brady’s trial, prosecutors withheld a police report that had
been requested by defense attorneys, in which Brady’s accomplice confessed
to pulling the trigger.

The court ruled that by withholding the evidence, the prosecutor violated
Brady’s rights under the equal protection clause of the 14th Amendment to
the Constitution.

Even if such information is withheld unintentionally, the court said, a
defendant might still be entitled to a new trial or a new hearing on his
sentence.

Brady’s case was remanded for re-sentencing and he was spared the death
penalty and given life in prison.

But as with many Supreme Court rulings, a clear statement of principles can
become fuzzy in its application. To rectify discovery violations, the
Supreme Court adopted a test that begins and ends with one basic premise: A
conviction should be reversed only if the verdict would have been different
had the discovery information withheld by prosecutors been known at the
trial. Otherwise, the discovery violation is "harmless error" -- and the
original court verdict should stand.

In its investigation, the Post-Gazette found that the test has evolved into
a devious calculation by many federal prosecutors: How much favorable
evidence can be withheld without risking a reversal on appeal?

Rather than abide by the Supreme Court’s admonition that their goal should
be to ensure a fair trial, many prosecutors try to figure just how much
they can cheat. Ignoring discovery rules improves the chances of a
prosecutor winning a conviction with little risk of penalty.

"Brady violations account for more miscarriages of justice than any other
violation," said Bennett L. Gershman, a former New York state prosecutor
and now a Pace University of New York law professor.

Gershman wrote "Prosecutorial Misconduct" in 1997 and has explored
discovery violations and the motives behind them.

"Prosecutors want to win," he said. "Some believe the defendant is so
guilty that any information that contradicts the guilt can’t be
trustworthy, so they believe they don’t have any obligation to turn over
untrustworthy material while telling themselves they are being honest."

The double whammy for defendants, of course, is that there’s no guarantee
that favorable evidence, once hidden by prosecutors, will ever be revealed.

"People have been sent to prison for many, many years before they find that
[prosecutors knew of] exculpatory evidence, but that’s the built-in
contradiction," Gershman said.

"If the information is hidden, how do you find it?" Gershman asked. "How do
you get it to make a claim? Much of this information will never see the
light of day, even if it may be critical in proving the defendant’s
innocence."

That hasn’t always been the way federal prosecutors operated.

Gary Richardson was appointed U.S. attorney for the eastern district of
Oklahoma by President Reagan, serving until 1984.

During his tenure, Richardson said, his office had an "open file" discovery
policy, which meant defense lawyers could come in and look at anything
prosecutors had collected on a particular case.

"My attitude was that if you can’t take the truth and win, then you weren’t
supposed to win," he said.

Now Richardson is a criminal defense attorney and says he regularly
complains about federal prosecutors hiding evidence favorable to his clients.

The open-door policy he advocated is no more.

Indeed, the Post-Gazette interviewed more than 100 defense attorneys for
this series and none had been given open access to a prosecutor’s files
during discovery.

Ramsey Clark, U.S. attorney general under President Johnson, is now a
defense attorney and bemoans the trend -- especially because of its impact
on defendants who are poor and can’t pay for lawyers who can uncover
attempts to withhold evidence.

"It is really tragic," he said, "how we grind up poor people in these
situations."

Discovery violations are rampant, in part because the Justice Department
has few rules penalizing a prosecutor who violates the discovery process.

When he served as attorney general, Clark would seek to overturn
convictions if he discovered misconduct by federal law enforcement officers.

"What we were trying for [was] sort of an open-file type of process," he
said, where prosecutors would take defense lawyers into a room and give
them the entire file on an individual charged with a crime.

"We used to confess error when we thought we were wrong." He said he rarely
sees that happen anymore.

Facing No Consequences

Indeed, the Post-Gazette found no federal prosecutors eager to apologize
for their conduct.

The only public reprimands tended to come from judges who overturned
convictions on appeal. And by that point in the judicial process, a
defendant often had already served months or years in prison.

Chake Kojayan, a middle-aged Lebanese woman, flew into Los Angeles in June
1991 with $100,000 worth of heroin sewn into her bag.

Within a day of her arrival, an acquaintance sold the drugs to two
undercover Drug Enforcement Administration agents. Kojayan and three others
were arrested.

She and the other defendants insisted they never knew the drugs were in the
bag. The other defendants maintained that another man, Krikor Nourian, was
behind the smuggling venture.

In fact, Nourian had been involved, and federal agents promised him
leniency in exchange for information he provided about Kojayan and the
other defendants. But defense attorneys were never told he’d become an
informant, even though they repeatedly asked prosecutors to turn over
information that would detail his role in the case.

No fewer than 11 times during the trial, Assistant U.S. Attorney Jeffrey
Sinek insisted that Nourian had no role.

Kojayan and her co-defendants were convicted and received sentences ranging
from six to 20 years in prison. Two years later, defense lawyers learned
that Nourian had been a government informer and that Sinek knew it.

Had defense attorneys known that during the trial, they could have
presented a credible defense that Nourian was snitching on innocent people
to save himself — which is exactly what Kojayan maintained.

The 9th U.S. Circuit Court of Appeals issued an opinion on Kojayan’s appeal
in 1993 that could as easily apply to hundreds of other discovery
violations found by the Post-Gazette:

"What we find most troubling about this case is not the [assistant U.S.
attorney’s] initial transgression, but that he seemed to be totally unaware
he’d done anything at all wrong, and that there was no one in the United
States attorney’s office to set him straight.

"Nor does the government’s considered response, filed after we pointed out
the problem, inspire our confidence that this kind of thing won’t happen
again.

"How can it be that a serious claim of prosecutorial misconduct remains
unresolved — even unaddressed — until oral argument in the [9th U.S.] Court
of Appeals? Surely, when such a claim is raised, we can expect that someone
in the United States attorney’s office will take an independent, objective
look at the issue.

"Yet the United States attorney allowed the filing of a brief in our court
that did not own up to the problem, a brief that itself skated perilously
close to misrepresentation."

The court ordered Kojayan released from prison. Sinek was never disciplined
for misleading the court.

He Didn’t Play Along

Prosecutors frequently argue that their discovery violations are
inadvertent. That would be a tough argument to make in the drug-smuggling
case against Miami attorney Frank Quintero Jr.

For years, Quintero had represented drug smugglers. Federal prosecutors in
1994 charged that he had gone from being a counsel for drug smugglers to
becoming one himself.

In preparing their case, they interviewed Constantine Roca, the manager of
a Florida marina. An informant had told federal agents that Roca had
handled the purchase of drug boats for Quintero and his Colombian cartel
clients.

But when questioned, Roca insisted that simply wasn’t true. In fact, he
didn’t even know Quintero. Roca’s statement carried weight -- he had no
criminal record.

Roca’s statement clearly should have been given to defense attorneys under
the court’s discovery order. But it wasn’t, and the case went to trial
without the defense knowing of Roca’s existence.

Had a defense attorney ignored a similar court order, he might have been
disbarred, or at least subjected to sanctions from an ethics tribunal.

Assistant U.S. Attorney Paul Pelletier’s deceit brought no sanctions.

Quintero’s first trial ended in a mistrial -- and his attorneys learned of
Roca’s statement from Roca’s attorney as they prepared for Quintero’s
second trial.

So they promptly put Roca’s name on their own witness list -- which proved
to be bad news for Roca.

In September 1996, just a few days after learning Roca might be a witness
for Quintero, Pelletier and Deputy U.S. Marshal Joe Godsk obtained a search
warrant for Roca’s business.

They would not reveal the basis for the warrant -- the agents refused
Roca’s lawyer’s request for a copy of an affidavit of probable cause, and
that information was nowhere on the public record.

Armed agents found nothing in the search that would result in charges
against Roca. Nor did they find evidence in the Quintero case.

But Roca’s landlord had seen enough. He evicted Roca, which effectively
destroyed his business. And for good measure, the government didn’t return
his business records until after Roca had gone bankrupt.

Pumping Up The Charges

Hiding evidence favorable to a defendant can clearly help a prosecutor win
a conviction.

And sometimes, the Post-Gazette found, it can help a prosecutor bring far
more serious charges than the facts would warrant.

Consider the case of Norberto Guerra and Ramon Jimenez.

They went to trial in January 1995 on charges of conspiring to bring more
than 7,480 pounds of cocaine into this country.

Witness after witness testified in Miami that they were the kingpins in the
drug-smuggling enterprise.

But they weren’t.

Guerra and Jimenez had worked on a boat that smuggled drugs and they
admitted that. They knew little else about the operation. They didn’t know
many of the witnesses who testified about their lofty status as drug lords.

They also didn’t know that most of these witnesses were paid government
informants who’d played key roles in the drug-smuggling venture. It was in
the interest of these witnesses to pin the rap on someone else so that
their own roles wouldn’t face scrutiny.

Time after time, attorneys for Guerra and Jimenez requested that
prosecutors turn over background information on the witnesses, because
their clients insisted the testimony was laced with lies.

Prosecutors insisted there was nothing to turn over.

It wasn’t until June 1995, after Guerra and Jimenez were convicted and
sentenced to 20 years in prison apiece, that they learned the depths of the
government’s deceit.

A hearing revealed that federal agents and prosecutors had hidden or
destroyed hundreds of pages of interviews with their key witness, Raul
Sanchez, a long-time drug smuggler who insisted Guerra and Jimenez were
among his top lieutenants.

Prosecutors also hid the fact that this key witness had confessed to being
involved in at least two murders.

This same witness had assured defense attorneys during the trial that he’d
received no offers of leniency in exchange for his testimony. Yet in the
evidentiary hearing on the charges of misconduct, the judge learned
prosecutors had indeed promised Sanchez leniency for his help.

That leniency offer was rescinded after Sanchez lied to agents to protect
another person who was a target in the same drug probe.

Yet defense lawyers never saw his failed polygraph test, which should have
been turned over as discovery material.

As the judge pointedly made clear: A star prosecution witness who lies to
the prosecution might be eyed with some suspicion by jurors.

There were dozens of other discovery violations: Plea bargains and payments
between the government and witnesses weren’t mentioned to defense
attorneys. Criminal records were not turned over.

In one instance, prosecutors gave defense attorneys the criminal background
sheet on witness Leonardo Alvarez, as required by law.

They missed one small detail, however: a murder conviction.

U.S. Magistrate Linnea Johnson grilled Assistant U.S. Attorney David Cora.

"I have no explanation for why it was done that way," Cora testified.
"Sometimes we hand over rap sheets. Sometimes the rap sheets are
indecipherable so we don’t hand them over that way. I have no explanation
for that, your honor."

Guerra and Jimenez were clearly guilty of something, but Johnson agreed
with their attorneys that the case against them should be dismissed.

To allow a prosecution to proceed where the government itself has failed
would be "wrong," Johnson ruled.

So Guerra and Jimenez went free. The witnesses against them received much
lighter sentences than they’d have faced had the trial not been marred by
multiple discovery violations.

Cora and the agents who helped him set up the case went back to their jobs.
No one in the U.S. attorney’s office was disciplined for the debacle.

Bowing To Pressure

The pressure to win convictions also played a role in many of the discovery
violations found by the Post-Gazette. The bigger the case, the more the
pressure.

Xioa Leung was arrested in China in 1988 for his part in a drug smuggling
operation to the United States. American lawmen lauded his arrest as one of
the first efforts to cooperate with the People’s Republic of China in
stopping drug trafficking.

Another Chinese national, Wang Zong, was prepared to identify key players
in the drug smuggling operation -- a perfect witness for the prosecution.
And no wonder.

To ensure his testimony would suit prosecutors, Chinese police officers in
1988 tortured Zong for a month.

They kicked him, dragged him through the streets, blindfolded him, and
shocked him with an electric cattle prod. He received little to eat or
drink. They denied him sleep. They beat him over and over again and
threatened him with death.

Obviously, U.S. law prohibits the use of torture in eliciting a witness’s
testimony.

Yet when Zong testified at the trial of Leung in San Francisco, federal
prosecutors insisted they knew nothing about his background that might help
defense attorneys discredit his testimony.

They lied.

Assistant U.S. Attorney Eric Swenson and U.S. Drug Enforcement
Administration Special Agent Tommy Aiu had both seen a confidential memo
from a U.S prosecutor stationed in Hong Kong. He warned that police in
China had threatened Zong with the death penalty if he did not cooperate.

That prosecutor, Robert McNair, also said he believed police had mistreated
Zong during their interrogation.

It wasn’t until Zong was nearly through testifying that the truth leaked
out on Jan. 30, 1990.

"I request that the court in America safeguard me," Zong said in open
court. U.S. District Judge William Orrick ordered the jury removed, then
listened as Zong continued.

"I am already in a position that I have been treated unfairly. The American
government and the American judge, I don’t know if they’re aware of that."

As Zong recounted his torture in China, the judge thought that Swenson and
Aiu had been duped by Chinese officials along with everyone else. He
appointed a former federal prosecutor, Cedric Chao, to investigate, then
declared a mistrial. In late 1990 Orrick ordered a new trial after ruling
that American lawmen had been "overwhelmed" by their collaboration with the
Chinese.

But Chao would soon learn that it hadn’t been U.S. lawmen who were duped.
He won the release of more and more information from the U.S. attorney’s
office, and the long-hidden McNair memorandum from the Hong Kong
prosecutor’s office finally was turned over.

By the spring of 1993, Chao was able to show that Americans agents knew
from their first trip to the Far East that Zong had been tortured.

Because of the prosecutorial misconduct, the judge gave key players in the
drug smuggling operation light sentences. In October 1993, he permanently
blocked Zong’s return to China, calling the case a flagrant violation of
the constitutional rights Zong was entitled to while on U.S. soil.

The judge accused Swenson of lying and covering up evidence in a "tunnel
vision approach to winning the case."

"The numerous instances of invidiously egregious conduct of important
officials of the U.S. government shocks the conscience of this court,"
Orrick wrote.

The judge ordered the Justice Department’s office of professional
responsibility to investigate him for perjury and obstruction of justice.
Nothing was ever made public about that probe.

Swenson was transferred shortly thereafter from the criminal division to
the claims and judgments unit, where he is responsible for collecting on
unpaid student loans.

Checked-by: Richard Lake