In a stunning and exceptionally rare 63 page "advisory" opinion issued yesterday, United States District Court Judge Ancer L. Haggerty excoriated both the United States Attorney for the District of Oregon and its prosecution team, in particular the Oregon State Police and OSP Detective David Steele, for their grossly incompetent and even criminal mishandling of the death penalty murder prosecutions of Holly Grigsby and David Pedersen.
The "problems" noted by Judge Haggerty in his opinion are nothing less than shocking and indicate that the egregious violations uncovered in the Pedersen/Grigsby case may extend into other prosecutions both state and federal. The violations fall into two broad categories: Failure to ensure all proper discovery and exculpatory evidence was preserved and turned over to the defense, and the unlawful and clandestine interception of attorney-client privileged communications.
The most serious and disturbing findings involved Oregon State Police Detective David Steele who Judge Haggerty concluded: Lied under oath in declarations made to the court, lied to Assistant U.S. Attorneys involved in the case, falsified evidence logs and reports, and intentionally destroyed and hid evidence favorable to the accused. The scope of Detective Steele's misconduct was so great that he invoked his Fifth Amendment right not to testify at the hearings on these matters. According to news reports he is now the focus of a federal criminal investigation. Judge Haggerty recommended that both state and federal authorities conduct audits of prosecutions in which Steele had been previously involved to ensure that he had not committed similar actions in other cases potentially leading to wrongful convictions.
Other problems identified with law enforcement agencies in the case included: Multnomah County Sheriff's Corrections Deputies (MCSCD's) lying in declarations filed with the court, MCSCD's opening attorney-client privileged mail, and various corrections agencies throughout the state participating in the unlawful interception of attorney -client privileged phone calls and providing these calls to the prosecution team.
Disturbing on another level was what Judge Haggerty termed the prosecutions "Laissez-faire" approach to its obligations to ensure that the prosecution lived up to its constitutional, ethical and moral duties to ensure that justice was done in the prosecution of a death-penalty case. Judge Haggerty pointed out a litany of complaints that are properly laid at the door of the current U.S. Attorney Amanda Marshall, who after months of repeatedly defending tenuous and factually unsupportable claims made by her team continues to defend her office's actions in the case.
The problems identified by Judge Haggerty include: Failing to review discovery materials as they were received from the various law enforcement agencies involved in the prosecution, failure to institute proper controls and indexing of the voluminous information to be provided to the defense, failing to notify the court and defense counsel of the obvious problems as they were discovered, misleading and misrepresenting the scope of the problem once defense counsel and the court became aware that there might be problems with both the evidence and that privileged communications were being clandestinely intercepted and provided to the prosecution attorneys, and finally a simplistic and unjustifiably cavalier approach to the overarching duty of a prosecution team in any criminal case - to see to it that justice is done.
For those attorneys who practice criminal defense in federal courts throughout the country, this is a sad and abject lesson that federal prosecutors have not, despite the internal intervention of the Department of Justice, learned anything in the wake of the Ted Stevens prosecution disaster. For those who practice in the District of Oregon, it is particularly troubling that the current US Attorney minimizes the import and effect of her office's seemingly institutionalized neglectful, incompetent, unethical and perhaps even criminal approach to its prosecutorial mission. Ms. Marshal, do the right thing. Step down and call for an independent audit into your office's prosecutorial policies and procedures before another injustice occurs.