Imagine that you're a U.S. Attorney and your office commits a huge Brady violation in a major murder case. You've got text messages from the boyfriend of your major eyewitness at trial to the lead FBI agent on the case that say that she's willing to alter her testimony and "testify to whatever you need her to" in return for certain benefits (namely, dropping charges against the boyfriend), and unless she gets them, she's going to "ple[ad] the 5th and say she don’t remember anything." This, by the way, the night before she's scheduled to testify at the trial.
But the AUSA's office doesn't disclose those text messages to the defense -- or earlier, similar messages either. Indeed, the next morning, as the trial's about the resume, defense counsel asks the prosecutors in open court "whether there was anything they wanted to bring up—they responded that there was not."
Defense counsel then tells the court about the text messages that the government didn't disclose. Texts that the defense serendipitously discovered from another source.
At which point the district court judge -- understandably -- goes ballistic. They call the witness to the stand and she admits "stand that she was willing to shape her testimony in exchange for receiving these benefits. When asked, “[Y]ou were willing to say whatever they wanted you to say . . . . That’s what you were willing to do, correct?,” she responded, “Yeah.” The court then followed up with a final question: “You were willing to change your testimony based upon whether or not you got this benefit; is that right?” Esmeralda offered an unequivocal “Yes” in response."
So the trial court excludes her testimony and makes a finding "that the Government’s 'egregious' conduct violated Brady." It also sanctions the government, making it pay "$4,844.68 (an amount that reflected the defense’s accounting) to the Federal Defenders of Eastern Washington & Idaho and $216.00 (the amount paid to jurors while they sat idle) to the district court clerk."
As a result, the government's down around five grand -- almost all of which it was going to pay to the public defender's office anyway, FWIW.
Faced with these circumstances, which course of conduct would personally you pursue?
A. Take your lumps. Pay the five grand, be happy that the defendant was convicted at trial despite your screw up -- and sentenced to multiple life terms, no less -- and go home. Or:
B. Appeal the $5,000 sanction order.
The U.S. Attorney's office elects to do (B). Resulting in more expense for lawyers on both sides of the appeal -- which the government itself pays for, and is surely many multiples of $5,000 -- plus losing the appeal anyway and resulting in a published opinion that recounts all the nasty details of what transpired at trial.
Seem like (A) might have been the preferable choice.
