US v. Jones

• Decision Date: 07 May 2010
• Docket Number: CR. No. 07-10289-MLW.
• Citation: 686 F. Supp.2d 147
• Parties: UNITED STATES of America v. Darwin JONES, Defendant.
• Court: U.S. District Court — District of Massachusetts

686 F.Supp.2d 147

UNITED STATES of America v. Darwin JONES, Defendant.

CR. No. 07-10289-MLW.

United States District Court, D. Massachusetts.

February 19, 2010.

Order Supplementing Decision May 7, 2010.

Joseph F. Savage, Jr., Goodwin Procter, LLP, Boston, MA, for Interested Party, 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 Plaintiff, USA.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

In January, 2009, the court ordered Assistant United States Attorney Suzanne Sullivan and the United States Attorney to seek to show cause why sanctions should not be imposed on Ms. Sullivan and the government for her egregious error in failing to produce plainly important exculpatory information to defendant Darwin Jones. See United States v. Jones, 609 F.Supp.2d 113 (D.Mass.2009); United States v. Jones, 609 F.Supp.2d 132 (D.Mass.2009); United States v. Jones, 620 F.Supp.2d 163 (D.Mass.2009). This error extended "`a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court.'" Jones, 620 F.Supp.2d at 165 (quoting Jones, 609 F.Supp.2d at 119). Customary means of addressing errors and intentional misconduct had proved inadequate to prevent the repetition of violations of constitutional duties, the requirements of the Federal Rules, Local Rules, and court orders concerning discovery. See id. at 175-77 ("Neither referral to the Department of Justice, Office of Professional Responsibility, other disciplinary bodies, or public criticism has sufficiently deterred prosecutorial misconduct."). Therefore, the court gave notice that it was considering ordering Ms. Sullivan to personally reimburse the District Court for at least some of the cost of the time spent by the indigent defendant's court-appointed counsel in dealing with the issues raised by her errors. See Jones, 609 F.Supp.2d at 134; Jones, 620 F.Supp.2d at 166, 180; see also United States v. Horn, 29 F.3d 754, 758-59, 766 (1st Cir.1994).

Ms. Sullivan asked that the court defer for at least six months deciding whether to sanction her so that she would have additional time to demonstrate that a sanction is not necessary or appropriate. May 12, 2009 Hearing Tr. at 84-85; see also Feb. 10, 2009 Suzanne Sullivan Affidavit ("Aff.") ¶ 6. The court granted that request and, as a result, also deferred deciding whether to sanction the United States Attorney for failing to adequately train and supervise Ms. Sullivan. See Jones, 620 F.Supp.2d at 167-68, 185. In essence, the court found that there was reason to hope that the past would not be prologue, and that Ms. Sullivan, the new Attorney General, Eric Holder, and new leadership of the United States Attorney's Office would take actions that would obviate the need for sanctions. Id.

For the reasons described in this Memorandum, the court finds that this hope was not misplaced. Ms. Sullivan has continued her exceptional efforts to assure that her error is not repeated.

The United States Attorney's Office has made intensive efforts to better prepare its prosecutors to perform their duties to provide discovery. While the court remains skeptical that training involving prosecutors alone will suffice, representatives of the United States Attorney participated in planning the educational program prompted by this case, which was organized by the Court and involved prosecutors, defense lawyers, judges, and a law professor. That program was voluntarily attended by the vast majority of Assistant United States Attorneys in this District and by an official of the Department of Justice responsible for the training of federal prosecutors. The new United States Attorney, Carmen Ortiz, participated in the program, welcomed the "unique opportunity" that the program offered, judged it to have "considerable value," and pledged her best efforts to assure that her prosecutors always "do the right thing."

In addition, in January, 2010, Attorney General Holder instituted a series of initiatives to assure that prosecutors understand their duties concerning discovery and discharge them in a way that is faithful to the Department of Justice's highest aspirations and finest traditions.

Experience causes the court to have some doubt about whether the government's initiatives will succeed. However, the violation of the defendant's rights in this matter was unintentional rather than deliberate,¹ and Ms. Sullivan is not likely to commit comparable errors in the future. The new Attorney General and the current United States Attorney have made serious efforts to reduce the risk that other prosecutors will make similar errors. Therefore, in an effort to recognize the positive developments since May, 2009, and to encourage their continuation, the court has decided not to sanction the serious errors that were made in this case.

II. BACKGROUND

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 ten year sentence.

Jones filed a motion to suppress, alleging that the police did not have the reasonable articulable suspicion necessary to justify the seizure and the search of him that led to the discovery of the firearm at issue. As the court has previously explained:

In 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.

Jones, 609 F.Supp.2d at 115; 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 alternate 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, the misconduct was too serious to ignore.

Jones, 620 F.Supp.2d at 164-65 (quoting Jones, 609 F.Supp.2d at 115, 121-29).

Therefore, the court provided Ms. Sullivan and the United States Attorney an opportunity to seek to show cause why sanctions should not be imposed on Ms. Sullivan and/or the government. See Jones, 609 F.Supp.2d at 115.

Both the then United States Attorney, Michael Sullivan, and Ms. Sullivan readily acknowledged that her notes containing important exculpatory information should have been provided to Jones before the hearing on his motion to suppress. See Feb. 10, 2009 Suzanne Sullivan Aff. ¶¶ 5, 6; Feb. 10, 2009 Michael Sullivan Aff. ¶ 7(c). Following a May 12, 2009 hearing, the court found that although Ms. Sullivan's errors were inexplicable and inexcusable, they were inadvertent mistakes made by "an earnest public servant" who was "genuinely contrite." See Jones, 620 F.Supp.2d at 166, 182-83. As of May, 2009, Ms. Sullivan had made extensive efforts to educate herself on a prosecutor's discovery obligations and was also being more closely supervised. Therefore, the court found that it was "unlikely that she will again violate her duty to provide discovery." Id. at 183.

However, the court also found that:

The Department of Justice and United States Attorney's Office fully share responsibility for Ms. Sullivan's misconduct. The Department hired a prosecutor who, despite long experience, did not understand her duties under Brady and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) , including her duty to review her notes and those of law enforcement agents for material exculpatory information. Ms. Sullivan was given training by the Department and United States Attorney's Office. However, at least with regard to discovery, it was obviously inadequate to serve its intended purpose.

Id. After admitted Brady violations were discovered in other cases, the last two United States Attorneys informed the court of the extensive efforts of the Department of Justice and their office to instruct prosecutors on their constitutional duty to disclose material exculpatory information to defendants. See, e.g., United States v. Castillo, Cr. No. 01-10206-MLW, Jan. 11, 2002 Michael Sullivan Aff., Jan. 17, 2002 Michael Sullivan Aff., March 19, 2002 Michael Sullivan Aff.; United States v. Diabate, Cr. No. 99-10253-MLW, Jan. 20, 2000 Donald Stern Aff. Yet these efforts proved to be insufficient to prevent the recurrence of serious errors in cases before this court and many others. See Jones, 620 F.Supp.2d at 170-76, 185-93.²

Nevertheless, in May, 2009, the court found that there was reason ...