Written by Peter Vieth | Judge orders prosecutor removed for new trial – Virginia Lawyers Weekly
A Lynchburg federal judge has ordered a new trial for a drug defendant based on misconduct by prosecutors who whitewashed their required disclosures about a discredited cop.
U.S. District Judge Norman K. Moon took the usual added step of ordering the removal of a prosecutor from the case. He concluded the government’s failure to fully disclose the ex-detective’s misdeeds was “not an inadvertent oversight.”
Moon said assistant U.S. attorney Ashley B. Neese ignored advice from an in-house expert who said the damaging information should be disclosed to the judge and to defense counsel. Instead, Neese provided only a “diluted and sanitized account” of the detective’s actions, Moon said.
Moon declined to dismiss the indictment against accused drug dealer Les Burns, but he said it was a close call. Instead, Moon ordered a new trial in which the defense will be armed with the details of the detective’s crude advances toward a witness in the case.
“In sum, the Government failed to exhibit candor toward this Court and has compromised the validity of Burns’ conviction,” Moon wrote in U.S. v. Burns (VLW 016-3-319).
Operation Pain Train
The investigation, dubbed “Operation Pain Train,” was focused on trafficking in prescription painkillers in and around Bedford County.
Burns was nabbed for drug possession in a 2012 traffic stop and sought to work as an informant to reduce his penalty, according to Moon’s opinion. Burns was later thought to be working both sides and he came under questioning in 2013 by Pain Train’s lead investigator, Bedford County detective Christopher Cook.
Burns made a number of incriminating statements when interviewed by Cook and Neese, Moon said.
About two weeks later, Neese learned that Cook had made brutish sexual overtures to a possible government witness during the pill investigation. Cook also lied to the witness, telling her he was not married and that she was a target of the investigation.
Cook was removed from the pill investigation, demoted and reassigned.
In late 2013, Burns was charged with conspiracy.
The government’s in-house expert on so-called “Brady” rules for mandatory disclosure of favorable information told Neese that the dirt on Cook needed to be turned over to Burns’ counsel.
Burns was represented by Charlottesville’s J. Lloyd Snook at the time.
Neese did not disclose Cook’s actions at the time. She reasoned that prosecutors did not intend to call Cook at trial and that government policies and privacy laws barred disclosure.
When Burns claimed his confession was coerced, however, prosecutors sought to alert the judge to Cook’s behavior and get a ruling on whether the incriminating details had to be disclosed to the defense.
The report to the judge was only a “bare summary” of Cook’s encounter with the witness, Moon said. Prosecutors described Cook’s actions as “flirtatious,” omitting his attempt to pull the woman into his lap and his display of his penis. The report also left out Cook’s lies to the witness.
Despite the “soft-peddling,” by the government, Moon said he ordered the government to give the Cook information to the defendant because it tended to impeach Cook.
Burns did not fare well at trial. Moon allowed Burns’ confession as evidence and ruled that Cook could not be questioned about the witness incident. Cook took the stand and testified, without impeachment, about Burns’ purported confession.
Burns was sentenced to 136 months.
Litigation of Brady issue
Represented on appeal by Paul G. Beers of Roanoke, Burns obtained the documents that revealed the details of Cook’s misconduct. He asked Moon to kick the criminal charges entirely or to order a new trial.
“This is not the ‘rare case’ requiring dismissal, although it is close,” Moon wrote as he ordered a new trial.
First, the evidence could have helped Burns, the judge said.
“Considering Cook’s abuse of power over a citizen in this very case, a jury could reasonably question Cook’s judgment as a police officer and the validity of his investigation,” Moon said.
Secondly, prosecutors “consciously provided only a skeletal summary” of Cook’s meeting with the witness, Moon said, characterizing as flirtatious “what might be more appropriately called sexual assault.”
Finally, Moon concluded the situation undermined confidence in the trial outcome.
Cook “remained untainted by his own undisclosed conduct, allowing the Government to capitalize on a purported confession through an unimpeached investigator,” Moon said.
‘Good faith’ finding denied
Moon expressly rejected prosecutors’ request to find Neese’s actions to be in “good faith.”
“I cannot find the Government acted in good faith,” Moon said, directing the U.S. attorney to remove Neese as counsel in the case.
The government “failed to exhibit candor toward this Court and has compromised the validity of Burns’ conviction,” Moon said.
Singling out a prosecutor for removal from a case makes Moon’s ruling unusual, said law professor Adam M. Gershowitz at the College of William & Mary.
Brady violations are often exposed after the fact, he said.
“What’s unusual is to see a judge say, ‘I think you did this on purpose, and I’m going to call you out by name,’” Gershowitz said. “That part is really rare.”
Moon’s ruling was welcomed by Richmond criminal law attorney Betty Layne DesPortes.
“Prosecutors too often fail to follow the requirements of Brady, and courts too often fail to impose any consequences,” she said, adding, “Judge Moon’s decision is both correct and commendable.”
A spokesperson for the U.S. attorney’s office said prosecutors “plan to abide by the judge’s ruling.” They plan on moving forward with a new trial, the spokesperson said.
“It is the right result,” said Beers. “We very much look forward to a new trial – a fair trial,” he added.