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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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