O MELVENY. Falling from Grace: How the Failed Prosecution of W.R. Grace Shows Why Rule 16 Needs Revision. Justin Ford, O Melveny & Myers, LLP

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1 O MELVENY Falling from Grace: How the Failed Prosecution of W.R. Grace Shows Why Rule 16 Needs Revision Article Contributed by: Carolyn Kubota, Jeremy Maltby, Robert Swerdlow, Justin Ford, O Melveny & Myers, LLP Carolyn Kubota Partner, Los Angeles Office Jeremy Maltby Partner, Los Angeles Office Robert Swerdlow Counsel, Los Angeles Justin Ford Associate, Los Angeles Introduction Discovery violations have become the Achilles heel of federal prosecutions, bringing down some of the Justice Department s highest profile cases. Most famously, the Department of Justice elected not to oppose former United States Senator Ted Stevens request to set aside his conviction, conceding that prosecutors had engaged in serious misconduct by failing, in violation of Brady v. Maryland 1, to turn over evidence that might have impeached the government s star witness. A similar story played out earlier this year in Missoula, Montana, when the government in the middle of trial was forced to acknowledge that it had failed to produce exculpatory evidence to the defendants in United States v. W.R. Grace. While the prosecution s case in Grace failed on many levels, fallout from that disclosure played an important role in the acquittal of all defendants on all charges weeks later. Though Brady was decided more than four decades ago, it has never been codified in statute or in the Federal Rules of Criminal Procedure. Courts and, perhaps more importantly, prosecutors interpret its mandate differently, leading to disclosure practices that vary widely among jurisdictions and even among individual prosecutors within a single jurisdiction. Our experience as defense counsel for one of the individual defendants in the W.R. Grace case convinced us of the need to reform Rule 16 to address the prosecution s pretrial duty to disclose Brady material. By failing to provide clear definitions of impeachment and exculpatory material, the threshold level of materiality for disclosure, and the scope of the due diligence required, the existing rules encourage gamesmanship and create risk that defendants will be denied their Constitutional rights. The government s failure to implement consistent Brady practices within its own corps of prosecutors has further compounded the problem. 1 Brady v. Maryland, 373 U.S. 83, 87 (1963). * Bloomberg Finance LP Originally published by Bloomberg Finance LP. Reprinted by permission.

2 Rule 16 and Existing Proposals for Reform In concept, the Brady doctrine is simple: exculpatory information in the prosecution s possession must be disclosed to a defendant because the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. 2 But the Brady doctrine is not a discovery tool; rather, it is a due process doctrine with discovery implications. The Brady doctrine has evolved in the context of post-trial appeals, in which a court of appeals asks, retrospectively, whether undisclosed evidence would have resulted in a different outcome. Brady s evolution in the post-trial context matters because Brady violations occur, not on appeal, but in the trial and pre-trial phases of a criminal case. As a post-trial remedy, Brady provides no clear guidance as to its application in a pre-conviction context. Pre-trial discovery in criminal cases is governed by Federal Rule of Criminal Procedure 16. Under Rule 16, criminal defendants can request production of evidence within the government s possession that is material to preparing the defense, will be used in the government s case-in-chief, or that was obtained from the defendant. 3 Rule 16 contains no reference to the production of exculpatory evidence. In 2003, the American College of Trial Lawyers sought to address that omission through an amendment to Rule 16 that would require information favorable to the defendant as to guilt or punishment be disclosed within 14 days of a defendant s request. 4 Favorable evidence was defined as any evidence that tended to a) exculpate the defendant; b) adversely impact the credibility of government witnesses or evidence; c) mitigate the offense; or d) mitigate punishment. The amendment would also require the prosecuting attorney to certify that he or she exercised due diligence in attempting to find favorable evidence and acknowledge a continuing obligation to disclose additional evidence once found. A subcommittee of the Judicial Conference working with the Department of Justice (DOJ) first watered down the proposed amendment, then delayed its implementation in light of changes made to the U.S. Attorney s Manual, 5 and finally, in September 2006, tabled it indefinitely. 6 And there is has remained for three years. Grace Case The prosecution against W.R. Grace and its former employees arose out of the company s vermiculite mining operation in Libby, Montana. The vermiculite deposit in Libby is contaminated with a naturally-occurring form of asbestos known as tremolite. Grace acquired the mine in 1963, and began upgrading its processes and safety measures shortly thereafter. The mine operated until 1990, when Grace closed its operations and sold off the mine property to local individuals and companies. Almost ten years later, in 1999, the Seattle Post- Intelligencer published a series of articles charging that Libby residents were suffering disproportionately from asbestos-related diseases. 7 According to the articles, almost 300 people had died and at least 2000 more were sick from exposure to Libby asbestos, with mesothelioma rates for the community far exceeding those of the broader populations of Montana and the United States. Many of those reported to be ill had never worked in the mining operation. The articles sparked a firestorm of publicity and prompted the Environmental Protection Agency (EPA), which has previously given Libby a clean bill of health, to send an emergency response team to Montana. EPA subsequently referred the matter to the DOJ which, in 2005, announced 2 Brady, 373 U.S. at Fed. R. Crim. P. 16(a)(1)(E). 4 American College of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16, White Paper (Mar. 2003) at 17 available at cfm&contentfileid=62. 5 See Minutes of Sept. 5, 2006 Special Session of the Advisory Committee for Criminal Procedure Rules at 7, available at Minutes/CR min.pdf. 6 See Minutes of Committee on Rules of Practice and Procedure, June 11 12, 2007 at available at min.pdf. 7 These articles are compiled at the homepage of the Seattle Post-Intelligencer. See

3 that it was indicting Grace and seven of its former employees. The indictment charged all of the defendants with conspiring to obstruct the EPA and the National Institute of Occupational Safety and Health (NIOSH) by failing to disclose the dangerous properties of tremolite, and to knowingly endanger the Libby community in violation of the Clean Air Act (CAA). Grace and two of the individual defendants were also charged with substantive violations of the CAA, and Grace alone faced four additional counts of obstructing the EPA s clean-up of Libby. The indictment alleged that the defendants knew Libby tremolite was an especially virulent form of asbestos and hid that knowledge from the government and the Libby community. In particular, Grace allegedly failed to disclose to the EPA and NIOSH a series of internal medical studies which the government said proved the dangerous nature of tremolite asbestos. Most explosive was the government s charge that the defendants had knowingly distributed tremolitecontaminated materials throughout the Libby community, including the placement of mining waste on the local high school running track and elementary school skating rink. Finally, the government claimed that when Grace closed the Libby facility and sold its properties in the early 1990s, the defendants left behind asbestos-contaminated vermiculite without warning the new owners and occupants that it was hazardous. Pretrial Discovery Because the government s conspiracy allegations spanned more than 30 years and involved at least ten state and federal agencies, discovery entailed the production of more than 3.5 million pages in a rolling production that continued even after the beginning of trial. Discovery disputes, including motions for Brady material, ensued. In a series of rulings, United States District Court Judge Donald Malloy held that the government s discovery obligations were commensurate with the scope of the sprawling case it had charged. Judge Malloy rejected the government s theory that it could satisfy its Brady and Rule 16 obligations by searching only those files in the custody of prosecution team members. Instead, he required all of the agencies involved in the case to certify they had reviewed their files for Brady material and to state the manner and scope of that review. Importantly, this order required both the prosecutors and the agencies involved to account for their efforts to locate responsive material. But despite all of these efforts (and orders) the defense entered the trial unaware of key exculpatory evidence. Undisclosed Evidence Surfaces The government s star witness at trial was Robert Locke, a disgruntled former Grace executive. Locke first met with government investigators in At that meeting, he revealed that when he left the company he had secretly taken documents with him, and was prepared to provide the government a roadmap to Grace s practices with respect to tremolite asbestos. On direct examination at trial, Locke testified that he had not received any form of immunity but had ultimately elected to testify because it was the right thing to do. On cross-examination, the defense elicited testimony showing that Locke had an axe to grind with Grace, and one of the individual defendants in particular, and that he was cooperating with the government to further his own wrongful termination lawsuit and to exact revenge for Grace s perceived mistreatment of him. During a break in his testimony for the spring holidays, the government s lead case agent reviewed his own archives and discovered four years worth of communications with Locke. Just before trial resumed, the defense first received more than 250 pages of messages between Locke and the case agent, as well as agent notes, a draft witness interview report and other materials. These materials painted a radically different picture of Locke s cooperation with the government than the one Locke had offered on direct. The s revealed that Locke had essentially become a member of the 3

4 prosecution team, conducting research into the defendants financial affairs and forwarding his findings with suggestions for additional charges, contacting at least one potential witness in the case, and even recommending arguments the government could use to withhold documents in discovery. The s also documented Locke s profound bias against the defense. Locke forwarded the agent a local news article about the shooting of a coyote in Cambridge, the town where Grace s offices were located, with the comment that there were some other coyotes in Cambridge that needed shooting as well. Finally, the new evidence undercut Locke s claim on direct examination that he elected to testify without immunity despite the possibility that he would be prosecuted as a co-conspirator. The new evidence showed that Locke had never faced any real possibility of prosecution. To the contrary, the government had encouraged Locke to refuse immunity so that he would seem more credible to the jury with the understanding that he would not face prosecution. Following the disclosure of this trove of exculpatory information, the court suspended Locke s examination and held a hearing on defense claims of prosecutorial misconduct in which it allowed the defense to examine the case agent regarding, among other things, his understanding of Brady. The agent understood that the prosecution must turn over evidence that would exonerate a defendant but not material merely helpful to the defense. He also explained his belief that notes of pretrial or informal meetings with witnesses was not required to be produced. When asked how he came to this understanding, the agent replied that he learned it from the prosecutors. In the end, Judge Molloy found no intentional misconduct but sanctioned the government in several ways. First, he refused to allow the government any redirect of Locke. Second, he read the jury a scathing instruction in the middle of trial advising them that the government had violated its constitutional duty to disclose exculpatory evidence to the defense. Finally, in light of what he characterized as an inexcusable dereliction of duty Judge Malloy prohibited the jury from considering any of Locke s testimony against one of the defendants (whom Locke had accused of making a particular statement that the Court found incredible) and admonished the jury to view all of Locke s testimony with skepticism. Need for Reform Brady Doctrine in Pretrial Practice Consistent with Brady s due process origins and posttrial focus, most cases discussing Brady provide minimal guidance (particularly as to appropriate remedies) for courts, prosecutors, and defense attorneys confronting discovery issues that arise at earlier stages of a case. United States v. Sudikoff is one of the few published decisions addressing Brady in the pretrial context. 8 In Sudikoff, a government witness entered into an immunity agreement following a lengthy negotiation with the prosecution. After the witness was immunized, the government memorialized its interviews with him in agent-created reports, which were disclosed to the defense. The defendants, however, sought discovery of communications relating to the period between [the witness s] initial contact with the government regarding possible cooperation and the point at which the witness and the government reached an agreement concerning the accomplice witness s testimony in hopes of identifying inconsistencies with the final reports. 9 The court analyzed the conceptual underpinnings of Brady and concluded that it required the government to produce evidence helpful to the defense that may reasonably be considered favorable to the defendant s case and that would likely lead to admissible evidence. 10 The court found that proffers that might contain inconsistent versions of a witness s testimony met that standard and compelled production. The court noted that, [n]either the government nor the Court is aware of the details of the defense strategy and therefore neither the government nor the Court can accurately determine which variations are important Sudikoff, 36 F. Supp. 2d Id. at Id. at Id.

5 In deciding pre-trial Brady motions in the Grace case, Judge Molloy took a somewhat different path and construed Rule 16 to subsume the Brady doctrine. Specifically, he held, any information requested by a defendant that is favorable to the accused under Brady is also material under Rule 16(a)(1)(E)(l) [sic] and therefore must be disclosed under that rule. 12 Judge Molloy reasoned that, while Rule 16 requires disclosure upon request of all information in the government s possession, and provides a mechanism by which a defendant may seek enforcement of the rule before trial, the Brady doctrine imposes a self-executing constitutional obligation, and generally is not the proper subject of court rulings prior to trial. 13 Judge Molloy and the Sudikoff court both concluded that Brady provides a basis to order pretrial disclosure of exculpatory material but articulated different standards for such disclosure. Judge Molloy s order delineated general categories of information the government was required to produce under Brady. The Sudikoff decision required the government to identify information favorable to the defense that would be admissible at trial or would lead to admissible evidence. But even in the Grace case, where Judge Molloy articulated his conception of Brady over three years before trial actually started, the defendants filed multiple motions identifying particular categories of information, and government officials signed certifications that they had met their Brady obligations, the government failed to produce evidence that undercut its star witness that was sitting on its case agent s computer. Non-Conventional Investigation as a Source of Brady Violations Potential solutions to the pretrial application of Brady lie in two directions. First, adopting the American College of Trial Lawyer s original proposal to amend Rule 16 would give much needed clarity to the government s pretrial Brady obligations. The proposal provides a workable solution to ensuring defendants receive their entitled evidence and prosecutors do not run afoul of their obligations. Second, prosecutors should identify and focus their attention on the areas of their work where Brady violations most often arise. The manner in which the government investigates and produces discovery in white collar cases normally results in the efficient production of Brady material disclosed through certain forms of investigation. For the most part, the government investigates white collar criminal cases by three means: (1) gathering documents through grand jury subpoenas; (2) agent-conducted interviews of witnesses, which are memorialized in interview reports and (3) witness testimony before the grand jury. These investigative activities all create written records that Brady included are routinely produced in discovery. But the government often runs afoul of Brady when exculpatory information comes to light in the course of nonconventional investigative activities. 14 With respect to those activities, there is no existing mechanism for the production of Brady material. Rather, its disclosure depends upon the alertness, diligence, and integrity of the prosecutors and case agents. In Grace, for example, the principal Brady violations arose from the case agent s exchanges with Locke and informal collection of evidence from him. According to the lead prosecutor, it never occurred to him that those s should be disclosed. Similarly, the Brady violations in Sudikoff and Stevens arose from non-conventional investigation in the form of witness proffer sessions (Sudikoff) and an informal telephone interview with the government s key witness (Stevens). Internal electronic communications may pose a particular blind spot for many prosecutors. Although the government routinely collects electronic communications from others, the Grace case suggests that prosecutors have been slow to focus on the discoverability of their own electronic communications. Electronic communications generate more documents that must be reviewed for potential Brady material, and result in more exculpatory statements preserved in written form. In the age of ubiquitous text and messages, this is likely an area rife with Brady violations. A related problem disclosed during the misconduct hearing in Grace was the lack of disclosure of witness statements 12 Id. at Id. 14 For example, Brady violations led the government to withdraw the case against former Senator Ted Stevens and against Ali Shaygan. 5

6 made in pretrial preparation sessions. The case agent testified that he did not believe information communicated during witness preparation sessions was subject to disclosure. 15 Because pretrial preparation sessions involve a free-flowing exchange between the witness and the prosecution team, but are rarely memorialized in any form, we believe that Brady material is often generated but seldom disclosed. Rule 16 Revisions This pattern suggests the DOJ would be well advised to educate prosecutors and agents, not just about the substance of their Brady obligations, but also as to the types of activities from which Brady violations typically arise. It is nonconventional investigation, such as proffers, pretrial witness preparation sessions, informal communications (especially s) with witnesses, and investigation ancillary to the case on trial, that have proved to be the most fertile ground for Brady violations. The DOJ recently announced that it will require additional training on discovery obligations. 16 Indeed, it seems that the DOJ would benefit from clearer rules governing the pretrial disclosure of Brady material, and from implementing uniform practices for disclosure of Brady. that give rise to Brady violations and focus its remedial measures accordingly. Unless and until the pretrial application of Brady is strengthened and clarified, the Department of Justice will continue to ineffectively comply with that doctrine. Carolyn Kubota is a partner in O Melveny s Los Angeles office and a member of the White Collar Defense and Corporate Investigations Practice. Jeremy Maltby is a partner in O Melveny s Los Angeles office and a member of the White Collar Defense and Corporate Investigations and Appellate Practices. Robert Swerdlow is a counsel in O Melveny s Los Angeles office and a member of the Class Actions, Mass Torts, and Aggregated Litigation Practice. Justin Ford is an associate in O Melveny s Los Angeles office and a member of the White Collar Defense and Corporate Investigations Practice. The opinions expressed in this article are those of the authors and do not necessarily reflect the views of O Melveny or its clients. Conclusion The United States government spent untold millions of dollars investigating and prosecuting W.G. Grace and its codefendants and produced millions of pages of documents before trial. But for all of these efforts the government failed to disclose key exculpatory evidence that had been in its possession all along. The government s inability to comply with its basic Constitutional obligations in this case suggests that change is needed. Through an amendment to Rule 16, Brady must become a clearly-defined pretrial discovery tool as well as a post-trial due process doctrine. And the DOJ must identify the types of prosecutorial activity 15 Similar problems have arisen in other prosecutions. For example, the conviction of former U.S. Senator Ted Stevens was vacated and the charges against him were dismissed following the revelation that the prosecution team had committed serious Brady violations. See Neil A. Lewis and David Johnston, Dismayed Lawyers Lay Out Reasons for Collapse of Stevens Conviction, N.Y. TIMES, Apr. 6, 2009, at A20. One of the most significant of those violations involved statements by a key government witness during an interview with four prosecutors and an agent. Although the interview took place pre-indictment, no interview report was prepared Press Release, Department of Justice, Attorney General Announces Increased Training, Review of Process for Providing Materials to Defense in Criminal Cases (Apr. 14, 2009) available at

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