Crime

Have Prosecutors Stolen Defense Work Product For Years?

A potentially egregious abuse of the criminal justice system.

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Attractive businesswoman holds magnifying glass, isolatedLawyers in U.S. v. Schapiro allege a potentially egregious abuse of the system on the part of the U.S. Attorney’s Office for the Southern District of Florida. In a motion to dismiss filed last week, Howard Srebnick and Rossana Arteaga-Gomez — both of Roy Black’s firm, Black, Srebnick, Kornspan, and Stumpf — contend that federal prosecutors take advantage of the clerical system to systematically steal a peek at defense attorney work product. And that they have for upwards of 10 years.

The Southern District of Florida Blog is all over this story, as one would expect:

Those who practice in this District know that in large fraud cases, the government stores its documents at a facility in Miramar. If you want to see or copy the documents, you need to go there. The Schapiro defense alleges that it flagged documents for copying from the warehouse. The copy service scanned those documents and gave the defense a CD, which included the documents, titles the defense assigned to those documents, and post-it notes on the documents. Unbeknownst to the defense, the copy service would also give that CD with this material to government agents. And the copy service has been doing this for 10 years.

If true, that’s a neat trick — rather than hand over all the documents, hand them out piecemeal and then get that extra leg up of knowing what documents the defendant and his or her legal team seem to think are important. Why pore through terabytes of data when you can piggyback off the defense’s judgment of what might be relevant? According to the government’s copy service representative, in an email quoted in the filing, this was standard practice for 10 years even in cases where the government wasn’t paying for document services or paid only half.

But perhaps the most troubling aspect?

To the prosecutor’s credit, he informed the defense of this when he found out about [it] in this case. But query why it took 10 years for any prosecutor or agent to speak up.

Why indeed?

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Actually, no, wait a minute… this is the most troubling claim:

[The government’s response] also makes the surprising claim that the defense has waived any claim because it either knew or should have known about this procedure. Wow.

That’s a lot to put on the defense bar. And Judge Cooke, no stranger to penning a brutal benchslap, probably agrees, given her initial reaction to this alleged practice was to call it “repulsive.” An inauspicious beginning for the prosecutors.

While everyone seems to agree that this happened, it seems hard to believe the USAO systematically took advantage of the process. The USAO isn’t much of a home for lifers, and when AUSAs routinely cycle out and join the defense bar after a few years, it’s hard to believe something like this would last a minute once some assistant found themselves on the other side in a partner office trying to defend some complex fraud case. They’d immediately jump all over this. Remember Spygate (otherwise known as the first time the Patriots were embroiled in a major cheating scandal)? That happened because a former New England coach found himself on the opposite sidelines and immediately blew the whistle to protect his new team. Ten years is a long time to not get called out on something like this if prosecutors really knew about this.

Then again, maybe this is a case of former prosecutors just not realizing how big an advantage this afforded them. There’s an esprit de corps among prosecutors that could keep them from considering this a problem even after they switched sides. It’s an interesting question that will surely be litigated out.

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(Check out the initial filing on the next page and the government response on the page after that…)

Has the government been using its copy service to spy on defense work product for the past 10 years? [Southern District of Florida Blog]

Earlier: Benchslap of the Day: Judge Cooke Sanctions Greenberg Traurig and TD Bank

Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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