From [HERE] Federal prosecutors have recently been facing scrutiny for allegedly misleading the defense and the court (article available here(link is external)).

In yet another example, on Jan. 25, the Chief U.S. District Judge for the Western District of New York ordered an evidentiary hearing in a $500 million real estate fraud case to determine whether the charges should be dismissed with prejudice because of discovery violations and misrepresentations that she is concerned may have been intentional.

Those ethical breaches included telling a magistrate judge that discovery was complete when the government had not yet turned over the contents of several phones and computers and then continuing to mislead the court as to the status of discovery.

The Western District of New York case, U.S. v. Giacobbe, thus joins a growing list of cases in which federal courts have determined that federal prosecutors have engaged in serious misconduct.

Most notably, in the 2020 U.S. v. Nejad decision, the U.S. District Court for the Southern District of New York heavily criticized the government for failing to turn over exculpatory evidence, requiring the entire U.S. Attorney's Office for the Southern District of New York to read her opinion and referring the prosecutors to the Office of Professional Responsibility for disciplinary review.

As with the discovery failings in Giacobbe, in the April U.S. v. Weigand decision, U.S. District Judge Jed Rakoff of the Southern District of New York admonished prosecutors for their inadvertent failure to disclose significant discovery from an iPad seized from a cooperating witness until the third day of trial, remarking, "I see Judge Nathan's opinion [in Nejad] has had meaningful deterrent effect."

Similarly, in the 2020 U.S. v. Jain decision, another U.S. District Judge of the Southern District of New York criticized prosecutors and the FBI for neglectfully delaying disclosure of a significant amount of discovery totaling five terabytes of data. The court chastised the prosecution and the FBI, noting that the conduct "besp[oke] of negligence" and ordered corrective action to be taken to ensure that this "sorry chapter cannot be repeated." The court required that a letter from the U.S. attorney's office senior leadership be filed publicly on the docket addressing what corrective action would be taken by the office.

While increased scrutiny of prosecutors' compliance with their discovery and other obligations is welcome news for defense counsel, the obvious concern is that many prosecutorial missteps go unexposed and unaddressed, to the potential detriment of fair, reliable and just outcomes.