U.S. v. Jones, Cr. No. 07-10289-MLW.

• Decision Date: 18 May 2009
• Docket Number: Cr. No. 07-10289-MLW.
• Citation: 620 F.Supp.2d 163
• Parties: UNITED STATES of America v. Darwin JONES, Defendant.
• Court: U.S. District Court — District of Massachusetts

620 F.Supp.2d 163

UNITED STATES of America v. Darwin JONES, Defendant.

Cr. No. 07-10289-MLW.

United States District Court, D. Massachusetts.

May 18, 2009.

Joseph F. Savage, Jr., Goodwin Procter, Boston, MA, for Suzanne Sullivan.

John A. Wortmann, Jr., Suzanne M. Sullivan, Dina M. Chaitowitz, James D. Herbert, Michael K. Loucks, United States Attorney's Office, Boston, MA, for United States of America.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

This is yet another matter that arises out of "misconduct committed by a federal prosecutor who should have known better." United States v. Horn, 29 F.3d 754, 757 (1st Cir.1994). Defendant Darwin Jones was charged with being a felon in possession of a firearm. If convicted of that charge he would have been subject to a mandatory minimum sentence of ten years in prison.

Jones filed a motion to suppress, alleging that the police did not have the reasonable, articulable suspicion necessary to justify the seizure and search of him that led to the discovery of the firearm at issue. As described in detail in the January 21, 2009 Memorandum and Order:

[I]n an effort to justify the seizure of Jones, the government argued, and Boston Police Officer Rance Cooley falsely testified, that there was justification to stop Jones because, despite the dark and the distance between them, he identified Jones as he rode his bicycle down Middleton Street in Dorchester, Massachusetts. Cooley testified that his suspicions were raised when Jones pedaled away, from him because Cooley knew Jones and Jones had never avoided Cooley before.

However, Cooley had on several earlier occasions told the lead prosecutor in this case, Suzanne Sullivan, that he did not recognize Jones on Middleton Street and did not identify the man who had been on the bicycle as Jones until later, when other officers had tackled Jones at another location. Cooley's important inconsistent statements were not disclosed to Jones until the court conducted an in camera review of Sullivan's notes, just before the suppression hearing was complete. Sullivan and her supervisor, James Herbert, acknowledge that Cooley's prior inconsistent statements constituted material exculpatory evidence, and that the failure to disclose them violated the government's constitutional duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), its progeny, and the court's orders.

United States v. Jones, 609 F.Supp.2d 113, 115 (D.Mass.2009); see also id. at 115-18.

Cooley's prior inconsistent statements were discovered and disclosed in time for his false testimony to be discredited. Id. at 115, 121-22. Indeed, the government abandoned reliance on it. Nevertheless, the motion to suppress was denied on other grounds. Id. at 115, 122-29.

The court did, however, immediately consider whether sanctions should be imposed on Ms. Sullivan and/or the government. The court concluded that it was not appropriate to reward Jones, and punish the public, by dismissing the case against him because of the government's misconduct. Id. at 115. Nevertheless, that misconduct is too serious to ignore.

The prosecutorial misconduct in this case arose out of false testimony by a Boston Police officer. Id. at 115, 121 and n. 4. False testimony by Boston Police officers and those working with them has both a long and recent history in cases before this court. See United States v. Rullo, 748 F.Supp. 36, 45 (D.Mass.1990)(perjury by at least one Boston Police officer defeats operation of the inevitable discovery rule and results in suppression of firearm)¹; United States v. Jones, 609 F.Supp.2d at 122-23 n. 6 (finding that Massachusetts State Troopers William Cameron and Stephen Johnson testified falsely in United States v. Nygell Jones, Cr. No. 07-10339-MLW, and again in the instant case). Moreover, "[t]he egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court." Jones, 609 F.Supp.2d at 119 and n. 2.² Therefore, the court ordered United States Attorney Michael Sullivan and Ms. Sullivan to file memoranda and affidavits seeking to show cause why sanctions should not be imposed on the government and/or Ms. Sullivan.

The required submissions were made. The United States Attorney and Ms. Sullivan acknowledged that what they characterized as "mistakes" were made in this case. See United States v. Jones, 609 F.Supp.2d 132, 133 (D.Mass.2009) (citing submissions). They argued, however, that no sanction for Ms. Sullivan's misconduct is necessary or appropriate. Id. They requested a hearing if the court continued to contemplate imposing sanctions. Id.

After considering the submissions by the United States Attorney and Ms. Sullivan, the court "remain[ed] concerned about how and why the repeated errors in this case occurred, and also about the risk that such errors by Ms. Sullivan and other prosecutors will recur." Id. The court informed the United States Attorney and Ms. Sullivan that it was considering a range of possible sanctions, particularly including:

ordering that Ms. Sullivan reimburse the District Court for at least some of the time spent by defendant's Criminal Justice Act Counsel in dealing with issues caused by her failures to disclose material exculpatory information. In addition, because training involving only prosecutors does not seem to be sufficient, the court is considering ordering Ms. Sullivan to attend a program on the disclosure of exculpatory information involving judges and defense lawyers, as well as prosecutors, which the court would organize.

Id. at 134 (footnote omitted). Therefore, the requested hearing was scheduled.

Counsel for Ms. Sullivan subsequently filed a memorandum and numerous letters on her behalf. After being rescheduled to accommodate Ms. Sullivan's counsel, a hearing was held on May 12, 2009. The now Acting United States Attorney Michael Loucks, Assistant United States Attorneys James Herbert and Dina Chaitowicz, Ms. Sullivan, and her attorney each addressed the court.

For the reasons described in this Memorandum, the court is not appointing counsel to investigate and possibly prosecute Ms. Sullivan for criminal contempt of the order directing her to produce all material exculpatory evidence prior to the commencement of the suppression hearing on October 27, 2008. Cf. In re Special Proceedings, 373 F.3d 37, 41-44 (1st Cir.2004); United States v. Stevens, Cr. No. 08-231(EGS) (D.D.C. Apr. 7, 2009) (Order) (Docket No. 372). Such an appointment is not necessary or appropriate because it does not appear that Ms. Sullivan specifically intended to violate that order or intentionally misrepresented that she had done so. See United States v. Michaud, 928 F.2d 13, 15 (1st Cir.1991); United States v. Berardelli, 565 F.2d 24, 30 (2d Cir.1977). However, the court does intend to institute criminal contempt proceedings in future cases if there is good reason to be concerned that discovery orders have been intentionally violated.

As also discussed in this Memorandum, if Ms. Sullivan did not intend to mislead, she has still not adequately explained why on April 15, 2008, she filed a memorandum and affidavit of Cooley asserting that Cooley recognized Jones as the bicyclist on Middleton Street when her notes and testimony demonstrate that he told her on April 7, 2008 that he did not know that the bicyclist was Jones until Jones was tackled by other officers later at another location. See Jones, 609 F.Supp.2d at 121-22. On at least October 6, 2008, and evidently on October 24, 2008 as well, Cooley again told Ms. Sullivan that he did not recognize the bicyclist as Jones on Middleton Street. Yet Ms. Sullivan allowed him to testify repeatedly on October 28, 2009, that he immediately recognized the bicyclist as Jones on Middleton Street. She did not disclose her notes, or the information that they contained, concerning Cooley's important contradictory statements to her. Indeed, as Ms. Sullivan testified on May 12, 2009, she did not even review her notes to determine if they contained exculpatory information that she was required to disclose.

Ms. Sullivan's failure to produce the crucial information contained in her notes reflects a fundamentally flawed understanding of her obligations, or a reckless disregard of them, despite many years of experience as a prosecutor, substantial training by the Department of Justice, and an explanation of her obligations by this court on August 12, 2008. See Jones, 609 F.Supp.2d at 116-17. The persistent recurrence of inadvertent violations of defendants' constitutional right to discovery in the District of Massachusetts persuades this court that it is insufficient to rely on Department of Justice training programs for prosecutors alone to assure that the government's obligation to produce certain information to defendants is understood and properly discharged.

Therefore, this court is arranging to have a program presented on discovery in criminal cases involving judges, defense lawyers, and prosecutors. The program will be organized by United States District Judge Douglas P. Woodlock, assisted by Magistrate Judge Leo Sorokin. As Ms. Sullivan has offered to attend that program, it is not necessary to order her to do so. Her colleagues will be at least invited, and perhaps ordered, to attend as well. In addition, the Attorney General will be asked to designate a representative to participate in the program.

The court is also continuing to consider whether Ms. Sullivan should be ordered to reimburse the District Court for at least some of the time spent by Jones' Criminal Justice Act counsel in dealing with issues caused by her failure to disclose material exculpatory information.³ See Horn, 29 F.3d at 766-67; Jones, 609 F.Supp.2d at 134. However, Ms. Sullivan has requested that, if necessary, the court...