White-Collar Crime

What We Have Here Is A Failure To Imaginate: On Prosecutors And Secret Witness Agreements

Prosecutors need to revisit the scope of their obligations.

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It is a truth universally acknowledged that where you stand on something depends on where you sit. But so does whether you even see something in the first place.

I’ve been thinking about this a lot after reading an interesting article in the Newport News Daily Press, which discussed a Virginia public defender’s recent discovery of secret agreements between the police, state prosecutors, and testifying expert witnesses in child abuse cases.

First, a little background: For years, a local hospital — the sublimely named Children’s Hospital of the King’s Daughters — has supplied medical experts to testify in child abuse cases. Think things like shaken-baby syndrome or a three-month old showing up with an arm fracture. These are often complicated cases in which there are few if any witnesses and testimony from medical experts about the cause of injury is enormously important.

When the government would call doctors from this hospital, they would testify just like any normal expert would testify — say that they examined a child, looked at the records, and reached an expert opinion about what the cause of the injury was, such as whether it was intentional or accidental, or whether it could have been caused by a fall or not. This is garden-variety expert stuff that you have in most criminal cases. So far, nothing to see here.

Typically, of course, the government is required to disclose any payments it makes to the expert in exchange for their testimony. Some lawyers will cross on this, and some won’t. Most jurors know that doctors don’t work for free, so there’s nothing particularly remarkable about finding out that, say, a pathologist was paid to testify in court. That is dog-bites-man stuff, not man-bites-dog stuff.

The man-bites-dog stuff is what tenacious Deputy Newport News Public Defender David Lee discovered after he followed a hunch about why it might be that the hospital’s doctors often seemed to come out on the government’s side, even in very ambiguous cases:

“You kind of get the sense that this organization has one thumb on the scales of justice,” he said. “For a long time I’ve been brooding over the fact that whenever CHKD doctors testify in court, in very, very ambiguous factual circumstances, they nevertheless consistently find clear evidence that injuries were inflicted due to abuse—as opposed to accidents, or some sort of underlying medical condition, or some other reason.”

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It turns out that CHKD didn’t exactly have an arms-length relationship with the government. In fact, it had signed a memorandum of understanding in several Virginia jurisdictions in which its doctors agreed, along with — wait for it — the local police chief, the Commonwealth’s attorney, and city attorney, to join “a multidisciplinary team to better investigate, diagnose, and prosecute cases of child maltreatment.” The agreement went on to say that it would use “a multi-disciplinary team approach… in the investigation, assessment, referral for prosecution, medical care and mental health treatment involving child victims of abuse.”

Think about that for a second. Here, you have a hospital that is supposedly providing neutral experts entering into an agreement with the police and the prosecutor to help “prosecute cases of child maltreatment” and help the prosecution with the “referral for prosecution” of child abuse cases.

And until Mr. Lee filed a state public-records request, the government never told the defense about that.

So across the Commonwealth of Virginia, neither criminal defendants, their lawyers, nor any juror realized that the supposedly neutral expert had effectively signed on as part of the prosecution team.

The government, of course, defends this practice and suggests that there is nothing wrong with this. Of course, they say, the government will have to cooperate with medical experts in order to deal with child abuse cases.

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That may be true, but the point is that you have to tell the defense about it. You have to allow a defendant to cross-examine on something like this. What might such a cross look like, for those of you playing at home? I reached out to Mr. Lee, and he said it might start like this:

  • You are a physician.
  • You work for the CHKD Child Abuse Program.
  • Your employer, the CHKD Child Abuse Program, has entered into an agreement with the Norfolk Police Department.
  • It is a formal agreement.
  • It is a written agreement.
  • Your employer has also entered into an agreement with the Norfolk Commonwealth Attorney’s office.
  • This is also a formal agreement
  • It is also a written agreement
  • These agreements call for the creation of a “multidisciplinary team.”
  • CHKD serves as the linchpin of this “multidisciplinary team.”
  • In this formal agreement, CHKD commits its employees to investigating child abuse cases.
  • In this formal agreement, CHKD commits itself to diagnosing child abuse cases.
  • And in this agreement, CHKD commits itself to prosecuting child abuse cases.
  • It is through this formal agreement that you work with local police.
  • It is through this agreement that children are brought to you for examination.
  • And, in line with your duty to investigate, you examine the children brought to you.
  • Also through your duty to investigate, you interview children.
  • Further, through your obligation to investigate, you interview parents.
  • You personally consult with the Norfolk Police Department on a regular basis.
  • You obtain information from investigators.
  • You provide information back to investigators.
  • You provide your medical assessments to investigators.
  • It is also though this formal agreement that you work with prosecutors in the Norfolk Commonwealth Attorney’s office.
  • You educate prosecutors.
  • You advise prosecutors how to pursue cases.
  • You suggest theories and rule out theories.
  • You work closely with prosecutors.
  • Prosecutors rely on your judgment.
  • Prosecutors rely on your expertise.
  • As part of your role as a Child Abuse Program physician, the Norfolk Commonwealth’s Attorney’s office regularly calls you to testify in court.
  • You testify in probable cause hearings.
  • You testify in trials.
  • You have testified before judges.
  • And you have testified before juries.

And so on. As Mr. Lee suggested to me, by the time he’s done, he wants to have the jury questioning whether these doctors spend even one full day a week practicing medicine, as opposed to serving as litigation consultants for the government.

But there’s never been a cross like this in Virginia because the government never told the defense that these agreements existed.

The government’s failure to recognize that this is obvious impeachment material — Giglio evidence, in the parlance of the game — points out a common problem that some prosecutors have.

In short, it’s a lack of imagination.

What seems like common sense to them — of course we’re going to work with doctors on these cases! — is often something that a good defense lawyer could exploit in front of a jury, as Mr. Lee’s mock cross-examination shows quite effectively.

Many prosecutors get themselves in trouble not because they intentionally try to hide evidence like this, but because of what you might call a failure of imagination. They just don’t stop to think about how good lawyers can work with evidence. They don’t think through what the cross-examination of a witness using that document might look like. They just say, “I mean, no juror would really care about something like this,” and don’t bother to disclose it.

In short, they just can’t see the argument from where they sit.

What’s the remedy for this kind of prosecutorial myopia? I’m not sure, but I think it involves trying harder to picture how the other side might use it. Maybe that will take listening to defense lawyers or reading more opinions that find prosecutors responsible for misconduct. Maybe it takes being a defense lawyer before you’re a prosecutor. I don’t claim to have a silver bullet, but rather to suggest that this type of error is far too common in many prosecutors’ offices.

Here, you had a signed agreement between a hospital, the police department, and the prosecutor’s office to work together on prosecutions. If a prosecutor doesn’t see how that could be a problem, what else might he not be seeing?

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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