By Jonathan Saltzman
Globe Staff / January 27, 2009
The chief judge of the US District Court in Massachusetts is threatening to sanction a federal prosecutor for what he characterized as the latest "egregious failure" of the US attorney's office to disclose evidence that could have helped clear a defendant.
Judge Mark Wolf (left) listed at least nine major cases in which he alleges prosecutors withheld important evidence.
NOT THE FIRST TIME
Chief District Court Judge Mark L. Wolf said in a sharply worded memorandum that Assistant US Attorney Suzanne Sullivan failed to disclose that a Boston police officer's testimony at a pretrial hearing contradicted what the officer had repeatedly told the prosecutor beforehand. The defendant, a Mattapan man arrested on gun charges in July 2007, is awaiting trial.
Wolf said the truth about the circumstances of the arrest came to light only when he reviewed Sullivan's notes of her interviews of the police officer, Rance Cooley. The judge wants Sullivan and her boss, US Attorney Michael J. Sullivan, who are not related, to file affidavits by Feb. 5 explaining why he should not sanction her, the US attorney's office, or both.
"The 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," Wolf, a high-ranking prosecutor in the office in the 1980s, wrote in his 42-page rul ing.
He listed at least nine major cases he presided over during the last two decades in which prosecutors working for Michael Sullivan and his predecessors allegedly withheld important evidence. In several instances, the jurist, 62, wrote, the misconduct led to mistrials and convictions that were overturned.
In an extraordinary rebuke of the office in July 2007, Wolf asked the Bar Counsel of the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against a veteran federal prosecutor, Jeffrey Auerhahn, who allegedly withheld key evidence in a New England Mafia case from the early 1990s. That matter is pending, according to the Bar Counsel.
Wolf said in Wednesday's ruling that his only successful sanction occurred in 2002, when he ordered an inexperienced prosecutor to attend a seminar on wrongful convictions after the lawyer repeatedly withheld critical evidence.
Yesterday, Michael Sullivan said in a statement that Suzanne Sullivan was a "valued member" of the office but that "we, of course, take seriously the issues raised by the court." He said he was reviewing the matter and would file a response.
Michael Sullivan, a President Bush appointee who has served as the top federal law enforcement official in Massachusetts since a week after the Sept. 11, 2001, attacks, is widely expected to be replaced by the Obama administration in the coming months.
John F. Palmer, the court-appointed lawyer for the defendant, Darwin E. Jones, 30, in the gun case, said he was disappointed Wolf found that the arrest still passed constitutional muster despite the alleged misconduct by the government. But Wolf's threat of sanctions illustrated that the judge will not tolerate the withholding of evidence, he said. "Judge Wolf is known to take exculpatory evidence issues very seriously, and, as he recounts in the decision, it's not the first time that it's happened," the Boston lawyer said. "And he wants to send a broader message. That's what I take from the decision. It is a big deal."Continued...
Wolf's ruling came in a relatively routine gun arrest by members of the Youth Violence Task Force, a joint effort by Boston police and the State Police. Around 11 p.m. on July 3, 2007, Cooley and other members of the unit went to Middleton Street in Dorchester in response to a complaint about a group of youths smoking marijuana and playing loud music.
Cooley testified at a pivotal pretrial hearing in October that he saw a man on a bicycle at the scene and made eye contact with him, and that the man then turned and rode away, according to Wolf's ruling. Cooley said this was suspicious because he recognized the bicyclist as Jones and had never known Jones to avoid him. After Jones allegedly rode away, other officers pursued him down a dead-end street, but he did not stop, the ruling said. He got off the bike and ran down an alley to another street, ignoring orders to halt. Officers on foot finally tackled him and found a gun in his pocket, authorities said.
However, the report that Cooley wrote immediately after the arrest said nothing about him recognizing Jones on the bicycle, according to Wolf's ruling. Rather, it says that Jones was identified later, after the officers tackled him.
Cooley repeatedly told the prosecutor in the case, Suzanne Sullivan, the same thing in the months after the arrest, Wolf wrote. Nonetheless, after Jones's lawyer challenged the arrest, the prosecutor filed an affidavit by Cooley saying he recognized Jones on the bike and found his behavior suspicious.
The truth, Wolf said, only came out during the pretrial hearing after he reviewed Sullivan's notes of her interviews with Cooley. She also took the witness stand at the hearing, during which Palmer questioned her and then Wolf did.
"The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court's in camera inspection," Wolf wrote. "Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of, or utter indifference to, the constitutional duty she repeatedly claimed to have understood and obeyed."
Suzanne Sullivan was a prosecutor in the Plymouth district attorney's office, which Michael Sullivan once headed, before she became a federal prosecutor.
Wolf ultimately ruled that the police had the right to arrest Jones because he allegedly fled when officers began pursuing him in a cruiser and on foot. A convicted felon, Jones faces a sentence of 15 years to life in prison if he is found guilty of gun possession, Palmer said.
Citing court precedents, the judge mentioned several possible sanctions against Suzanne Sullivan ranging from a fine to an order to attend an ethics seminar.
Wolf wrote that it is up to the US attorney's office to decide whether to prosecute any officer who testified falsely in the Jones case. Elaine Driscoll, a Boston police spokeswoman, said department lawyers were reviewing the matter to determine what action, if any, to take.
She said Cooley is a "highly respected member of the Boston Police Department and has done tremendous work out on the streets."
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