| SDNY Strauss Responds To
Discovery Abuse In Letter to Judges Castel and
Nathan Here
By Matthew
Russell Lee, Patreon Letter
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
Dec 18 – The mounting
criticism of the discovery
practices of the US Attorney
Office for the Southern
District of New York has today
given rise to a letter from
Acting US Attorney Audrey
Strauss.
The letter,
first reported by Inner City
Press here, is directed to
SDNY Judge P. Kevin Castel in
the case of US v. Niket Jain.
But it is explicitly cc-ed to
Judge Alison J. Nathan, who is
digging into misconducted in
US v. Nejad that resulted in
the dropping of a jury guilty
verdict.
It might
just as well has been cc-ed to
Judges like Katherine Polk
Failla, overseeing US v. Ahuja
and Shor, or Judge Engelmayer
in Teman, or Judge Hellerstein
in Coro, etc.... Letter
here
Strauss writes: "
The Court directed the
leadership of this Office and
FBI New York’s Criminal
Investigative Division to
confer regarding steps to
prevent a recurrence of these
mistakes and report to the
Court on corrective action.
(Id. at 25). The October Order
specifically cited breakdowns
in communication between case
agents and AUSAs, insufficient
policies to ensure compliance
with disclosure obligations,
and inadequate unit-chief
supervision of disclosure as
contributors to the devices’
delayed production. (See Dkt.
143 at 25 n.6 (citing United
States v. Nejad, 18 Cr. 224
(AJN), 2020 WL 5549931
(S.D.N.Y. Sept. 16, 2020), at
* 6)). As discussed below, we
have implemented policy
changes to mitigate the risk
of poor communication and
facilitate appropriate AUSA
and supervisory attention to
disclosure considerations from
the earliest stages of our
prosecutions. We have also
conducted disclosure training
for agents and prosecutors and
instituted additional AUSA
training on an ongoing basis,
emphasizing the need for
“prudent and timely” attention
to these responsibilities.
(Cf. id. at 2). Recognizing
that addressing this Court’s
concerns, as well as related
issues that surfaced in other
prosecutions, requires
sustained engagement, we
established a standing
Disclosure Committee, led by a
unit chief and deputy chief of
the Criminal Division, and
staffed by senior AUSAs, which
is helping oversee our policy
changes’ implementation,
assess their effectiveness,
and develop further
improvements. A Technology
Working Group is complementing
the Disclosure Committee’s
efforts by exploring ways to
enhance our technological and
administrative infrastructure
for data management and
disclosure.
Our
corrective actions began with
a concerted effort to
understand the underlying
failures. Informed by the
problems that arose in this
case, as well as concerns
highlighted by the Court in
other prosecutions (see
generally Nejad, 2020 WL
5549931), I and other
executive staff members
oversaw an analysis of
disclosure-related failures.
This assessment formed the
framework for meetings between
the executive staff and the
leadership of each unit in the
Office’s Criminal Division,
aimed at identifying flaws in
current procedures, as well as
best practices for data
management and disclosure.
Unit chiefs continued these
conversations within their
units, to ensure engagement on
these issues at all levels of
the Office and that our review
benefitted from line AUSAs’
perspectives."
And what
will defense counsel, and
civil libertarians, have to
say? Full
letter here
We'll have more on this.
***
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