“Justice Gone Wild”

Here’s the pertinent excerpt from the opinion supporting your position. The last line is the killer.

“[F]or over two weeks of trial, the prosecutor consistently
claimed that he had disclosed the required
material to the defendants . . . . And I accepted that,
I accepted [the AUSA’s] statement as an officer of
the Court and overruled the objection on several
occasions. . . . Only after I excoriated the Assistant
U.S. Attorney in the strongest terms did he then offer
an apology to the Court, not a heartfelt apology, but
simply a response to me. And finally I said, be quiet
and listen to me because he was just saying, yeah,
I’m sorry, I’m sorry, I’m sorry, and not really meaning
it.”
The prosecutor has a “sworn duty . . . to assure that the defendant
has a fair and impartial trial,” and his “interest in a particular
case is not necessarily to win, but to do justice.” N.
Mariana Islands v. Bowie, 236 F.3d 1083, 1089 (9th Cir.
4960 UNITED STATES v. CHAPMAN 2001).

In this case, the district court was clearly troubled by the government’s conduct
and its failure to own up to its actions. We are similarly troubled,
both by the AUSA’s actions at trial and by the government’s
lack of contrition on appeal. The government attorneys
who appeared in the original AUSA’s stead on the critical day
of the hearing on the motion to dismiss the indictment told the
trial court that they “took this matter extremely seriously” and
conceded that the government made a “very serious mistake
in terms of [its] discovery obligations.” Before us, however,
these same attorneys have attempted to minimize the extent of
the prosecutorial misconduct, completely disregarding the
AUSA’s repeated misrepresentations to the court and the failure
to obtain and prepare many of the critical documents until
after the trial was underway. Instead, they claim for the first
time on appeal that none of the 650 pages were required disclosures
under Brady/Giglio. When the district court first
indicated that it was inclined to dismiss the indictment, it
noted that it was “concerned [that] any lesser sanction [would
be] like endorsing [the AUSA’s conduct].”

The government’s tactics on appeal only reinforce our conclusion
that it still has failed to grasp the severity of the prosecutorial
misconduct involved here, as well as the importance of its
constitutionally imposed discovery obligations.