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GOVERNMENT ADMITS TO ‘SUBSTANTIAL’ BRADY FAILURES

In an October 30th letter, the United States Attorney’s Office for the Southern District of New York admitted to “substantial failures” in disclosing potentially exculpatory evidence, over a month after a Southern District of New York judge excoriated the prosecutors for multiple failures that led the court to dismiss a criminal case with prejudice after a jury had convicted the defendant.

In a September order in United States v. Nejed – a case in which the defendant was charged with export and money-laundering offenses arising from dealing with Iran – the government was found to have repeatedly misled the court and defense counsel as to facts relating to late production of evidence helpful to the defense. Ever since Brady v. Maryland, a 1963 Supreme Court decision, the prosecution has had a constitutionally-defined duty to turn over evidence that may help the defendant.

In Nejad, the government failed to do so. When prosecutors discovered during trial that a crucial piece of evidence had not been provided to the defense, email records showed that they schemed over how to bury the evidence in a massive “document dump” to defense attorneys, in hopes the defense would not notice it.

Ultimately, despite the fact that a jury convicted Defendant Nejad, the Court threw the case out after the Government was caught withholding evidence, and sheepishly agreed to the dismissal.

But that didn’t end things. District Judge Allison Nathan, understandably troubled by the Government’s conduct, issued an order subsequent to the dismissal, in which she observed

it is possible that the issues articulated above, as well as the precipitating factors the Court identifies, are not unique to this case. Indeed, in the last criminal case tried before the Undersigned, the Government also seriously breached its Brady obligation. Following that revelation, the Court was repeatedly assured by the leadership of the USAO that the matter was being taken seriously, would be systemically addressed through training, and would not reoccur. The record before the Court in this case belies those assurances.

It is impossible for the Undersigned alone to address and resolve these issues. Here too, it is thus the Court’s view that these errors should be investigated by DOJ’s Office of Professional Responsibility. Moreover, the manifold problems that have arisen throughout this prosecution — and that may well have gone undetected in countless others — cry out for a coordinated, systemic response from the highest levels of leadership within the United States Attorney’s Office for the Southern District of New York.

The US Attorney’s October 30 letter assured the judge that the mistakes were unintentional and would not happen again. The judge noted in her September order that she had heard that one before…

Memorandum Opinion and Order, United States v. Nejad, Case No 18cr224, 2020 US Dist LEXIS 169686 (September 16, 2020)

Law 360, Feds Admit ‘Substantial Failures’ In Iran Sanctions Case (October 30, 2020)

– Thomas L. Root