Mimesis Law
21 September 2019

Oregon Prosecutors Lie to Court; Guess What Happened Next!?!

October 19, 2016 (Fault Lines) — Talk to a police officer about police shootings—he’ll probably say that there wouldn’t be any problems if suspects complied with commands. Even if the officer is doing something illegal, he’ll say, you should just go along for now and let the courts handle it. Good advice for citizens. But for prosecutors? Maybe not so much.

Take the good people of the Oregon Attorney General’s Office, pressed into service to defend lawyers who had deliberately lied to a judge to avoid compliance with his order. Now, if those lawyers were defense attorneys, there could be little doubt their eventual fate—suspension, disbarment, and on a bad day, criminal charges.

Fortunately for these fine advocates, their clients were prosecutors. Prosecutors who, despite some mild scolding from the Oregon Court of Appeals, will go on to exercise discretion over other people’s lives without further repercussion.

The defendant was a doctor, who went on a date with a chemist. They had drinks and went to his apartment. Five hours later, the chemist left, “having sustained injuries to her jaw, eye, neck, shoulder, upper back and vaginal area.” The defendant said it was because they had been having rough sex. The victim said that the defendant had badly abused and raped her. The victim went home and texted a friend to say that she had been raped, then googled the issue to see if what had transpired between them was rape under Oregon law.

But the defendant had a theory. He thought that the victim had looked up his CV to make sure that he was a doctor because, in addition to going after him criminally, she was also suing him for two million dollars. Without facts to back this up, of course, it was just empty supposition, unlikely to persuade a jury.

So the defendant sought to have Google disclose the victim’s search history from the day of the incident. If it showed that she looked up how much money he had, or how to sue for sexual assault, it would be useful evidence in support of this theory. And there was a time crunch on this—in the related civil suit, he had learned that the victim had destroyed or given away her computer and deleted all relevant information. Obviously, he needed the search history before Google could delete its archives.

But Google declined the request, noting that it only had an obligation to disclose stuff like that to law enforcement. Defense attorneys don’t count. So his lawyer moved to compel the State to ask for the records, and to then disclose them in discovery as Brady material. The judge went along with it, even though prosecutors argued that, without the victim’s consent, such disclosure would violate the Oregon Victim’s Bill of Rights.

The State was cagey, though. It knew that if it could just delay the proceedings long enough, Google would delete the records and it would be off the hook. So it began what it described as “protracted resistance” to the judge’s order. Not an appeal. Just non-compliance. So a month passed, and when the old judge retired and a new one came in, the State asked him to reconsider. He refused.

Two weeks later, they met again. The State hadn’t even begun to request the records. Instead, it produced an “expert,” a police officer who had talked to some other police officer who had talked to a “lawyer at Google” whose name he couldn’t remember, who said that Google doesn’t keep records past 28 days. A ballsy move, but the judge was unpersuaded. It didn’t help that the defendant pulled up Google’s website and showed that Google keeps files for at least nine months. The State’s “expert” had been mistaken or, less generously, pulling stuff out of his butt when he came up with the 28-day figure, and prosecutors should have known it.

Prosecutors also told the judge that the request was impossible, because they didn’t have the victim’s IP address and they had no way to obtain it. This was also a lie. Defense counsel would later show that prosecutors had possessed the IP address for at least 8 months at the time they made the claim. So the case dragged on.

Two months later, prosecutors claimed to have discovered a new roadblock. Google would only turn the evidence over in response to a search warrant, not a request. And search warrants, the State claimed, couldn’t be used to discover evidence of innocence. Hmmm. How convenient.

The judge pointed out that this was nonsense, and ordered them to go get the search warrant they claimed to need. But by this point, the defendant had had enough, and moved to dismiss the case for prosecutorial misconduct. The judge not only denied the motion, he reconsidered his earlier order that the State had spent the past few months disobeying. The defendant was convicted and given a hefty sentence.

So on appeal, the defendant argues that the State has seriously messed up. That by lying to the judge and hiding evidence beyond the point it could be recovered, prosecutors had made a fair trial impossible. Only an acquittal would do. But the Oregon Court of Appeals found a way to make nobody happy, scolding prosecutors while denying relief:

We find the state’s conduct at trial to be seriously disturbing. Its “lack of good faith” with respect to obtaining the Google information was significantly worse than foot-dragging, delay, and resistance. It was repeated, intentional, and conceded defiance of a court order. Such defiance is nothing short of an attack on the judicial system itself. A sincere, strong, and (as it turned out) correct belief that a court order is erroneous does not give the person to whom it is directed license to disobey it. However, there is a significant difference between prosecutorial misconduct—even sanctionable prosecutorial misconduct—and misconduct that justifies dismissing a case. For that reason, as explained below, we conclude that the trial court did not err in denying defendant’s motion to dismiss.

Additionally, the Court held that a criminal defendant can’t use Brady to force the government to go to third parties for information. That means that even though the prosecutors dragged their feet and disobeyed the order, they basically lucked into the right result by not complying.

Still, all is not lost. The trial court ultimately did end up subpoenaing the victim’s computer to see if her search history was recoverable. If there ends up being exculpatory information on it, the Oregon Court of Appeals has held that the State can’t shield itself by claiming the victim’s “right to privacy” should keep it out of the defendant’s hands. If there’s something decent on there, he may get a second chance to make his argument.

But this case ultimately isn’t about whatever punishment the defendant received. It’s about how ineffective our justice system is at dealing with prosecutors who fail to act as officers of the court. That mild tongue-lashing about justice might be the harshest consequences anyone who made those decisions receives. And if that’s the price of some lost evidence and a trial victory, it’s a price many prosecutors will be happy to pay.

3 Comments on this post.

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  • Chris
    19 October 2016 at 10:40 am - Reply

    The trial court should have issued subpoenas to Google from the beginning and forced them to release the info under penalty of contempt etc. if necessary. The Court of appeals is correct that was never a Brady issue. So the Court ordering the State to do the defense attorney’s job for them, was a bad order. It is not a Brady violation to fail to investigate the Defense theory or to fail to get things in the possession of a private party.

    • Andrew Fleischman
      19 October 2016 at 12:25 pm - Reply

      I’m not saying the Court was wrong, Brady-wise. But obviously lying to a judge about whether you have evidence is a problem. If you disagree with an order, you appeal it. You don’t drag your feet and hope it goes away.

  • FCA Aficionado
    19 October 2016 at 4:34 pm - Reply

    You can bet those same prosecutors have used some variation of “send a message by being tough” in their closing arguments.

    By not seriously sanctioning officers of the court, the judge has greased the slippery slope.