United States District Court, D. Oregon, Portland Division
ANCER L. HAGGERTY, District Judge.
Defendants David Joseph Pedersen (Pedersen) and Holly Ann Grigsby (Grigsby) were charged in a fifteen count Indictment. Defendants were charged in Count One with Racketeering, in violation of 18 U.S.C. § 1962(c); in Count Two with participating in a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, in violation of 18 U.S.C. § 1962(d); and the remaining thirteen counts relate to acts of violence, use and possession of firearms, and other criminal activity committed in Washington, Oregon, and California, from September 26, 2011 through October 5, 2011. The indictment in this case includes a Notice of Special Findings regarding five counts that could have formed the basis for a death penalty prosecution. On February 7, 2014, following a number of revelations concerning discovery violations and the interception of defendants' privileged communications, the government filed notice that it would not seek the death penalty against either defendant,
On March 11, 2014, Grigsby pleaded guilty to Count One of the indictment. On April 23, 2014, Pedersen pleaded guilty to Count Eleven of the indictment, carjacking resulting in the death of Cody Faye Meyers, and Count One of the Superseding Information , carjacking resulting in the death of Reginald Alan Clark. Both defendants' plea agreements call for sentences of life without the possibility of release and both defendants have been sentenced accordingly. Prior to the entry of their guilty pleas, both defendants had made oral motions for a finding that the government had acted in bad faith. From April 7, 2014 through April 10, 2014, this court held a four-day evidentiary hearing concerning defendants' allegations. Briefing from the government and from Pedersen's counsel regarding the issue of bad faith was due on April 25, 2014. However, both defendants' plea agreements required them to withdraw their requests for a finding of bad faith, and that briefing was never submitted. This Supervisory Opinion now issues pursuant to the court's supervisory powers to address some of the issues raised during the pendency of this case.
As an initial matter, the court notes that the plea agreements reached by both defendants result in an appropriate resolution to this case. Nothing that follows should be interpreted to suggest that the charges pleaded to, or the sentences imposed, are in anyway inappropriate for the crimes coim-nitted. Additionally, there is no evidence that either defendants' guilty plea was unfairly influenced by the government's conduct in this case. Rather, both defendants made intelligent and voluntary pleas of guilty while using the goverment's conduct as leverage to secure favorable plea agreements.
However, this case was mishandled by the prosecution team and Filter Team One, very nearly jeopardizing this case altogether. During the relevant period, the core prosecution team included two Assistant United States Attorneys ("AUSA1 and AUSA2"), staff at the United States Attorneys Office (USAO), Oregon State Police (OSP) Detective Dave Steele and an OSP analyst ("Analyst I"), a captain from the Oregon Department of Corrections ("ODOC Captain"), and agents at the Federal Bureau of Investigation (FBI). Filter Team One was comprised of one AUSA ("AUSAF"), an FBI agent ("Agent F"), and an OSP analyst ("Analyst F").
The most egregious misconduct was committed by Detective Steele. He was directly responsible for destroying and withholding Brady material, failing to catalog and turn over discovery, backdating evidence reports, lying to the USAO regarding this conduct, intercepting and listening to privileged defense communications, and filing a false declaration with this court. That said, the problems in this case were not limited to Detective Steele or OSP.
Whether the acts and omissions of the other members of the prosecution team and Filter Team One were made in "bad faith" is no longer an issue before this court. Whether those acts and omissions prejudiced defendants' trial preparation is also no longer an issue before this court, and the court is satisfied that both defendants made knowing and voluntary guilty pleas while aware of the conduct at issue. However, the testimony adduced during the evidentiary healing and the arguments made at that hearing suggest to the court that the USAO does not understand how this case was mishandled. Without such an understanding, the court does not believe these issues should remain unaddressed. Some of the government's transgressions can be viewed as aberrational and unlikely to be repeated, however, much of its conduct appears to have stemmed from systemic problems and is likely to recur absent corrective action. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991) (noting that a courts supervisory powers "may be exercised for three reasons: to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct"). Additionally, the court does not believe that it can, in good conscience, allow the government's conduct to pass without comment.
When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public's trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.
United States v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013) (Kozinski, C.J., et al., dissenting from denial of rehearing en banc) .
The conduct at issue can generally be placed into two categories: (1) issues concerning discovery and (2) issues concerning interference with defendants' attorney-client privilege and Sixth Amendment rights. While the two categories are not mutually exclusive, the division is useful and the facts relevant to each category will be set forth separately. The court first provides an overview of the factual background as it relates to the discovery violations and then as it pertains to the Sixth Amendment violations. Both violations also implicate defendants' Fourteenth Amendment due process rights. The court will then discuss those violations as well as suggested remedial measures to ensure that they do not recur.
The timeline of events laid out below is not strictly linear. One of the most serious problems in this case is that the government did not notify the court regarding the mistakes and misconduct at issue. As a result, what initially appeared to the court to be only hiccups turned out to be much larger problems. The seriousness of those problems was largely concealed until the fall of 2013, when the defense discovered privileged telephone calls in discovery and the government produced Volume 31 of discovery which contained pre-indictment material that should have been disclosed much earlier. Not until the evidentiary hearing did the full scope of the problems come into focus. In order to convey the issues as they were presented to the court, it is sometimes necessary to move backwards and forwards in time.
I. Discovery Violations
The provision of discovery in this case was incomplete and untimely. Perhaps more importantly, the prosecution did not make a concerted effort to notify the court or defendants regarding the pervasive discovery problems until late in the case.
A. Overview of Death Penalty Protocol
The indictment in this case was entered on August 16, 2012, Until February 7, 2014, when the government announced that it would not seek death against either defendant, this case was treated as a death penalty case. The deliberative process by which the government determines whether pursuing the death penalty is appropriate is known as the Death Penalty Protocol (DPP) and it is governed by guidelines in the U.S. Attorney's Manual (USAM). Pursuant to the DPP, the United States Attorney for the relevant district submits a death penalty evaluation form and memorandum to the Attorney General of the United States setting forth the United States Attorney's recommendations regarding the propriety of the death penalty in a particular case. The USAM provides that the United States Attorney "shall give counsel for the defendant a reasonable opportunity to present any facts, including mitigating factors, for the consideration of the United States Attorney." USAM § 9-10.050. The mitigation materials submitted by defense counsel are included in the United States Attorney's submission to the Attorney General. USAM § 9-10.080. Under the protocol, the United States Attorney's submission to the Attorney General should be made "no fewer than 90 days before the Government is required... to file notice that it intends to seek the death penalty." Id.
The materials submitted by the United States Attorney are then reviewed by the Attorney General's Review Committee on Capital Cases, and if the United States Attorney recommends pursuit of the death penalty or a member of the committee requests a conference, defense counsel have the opportunity to "present evidence and argument in mitigation." USAM § 9-10.120.
B. Initial Delays
Early in the case there were a number of delays from what appeared to be minor problems. At the inception of this case, the defense presentations to the United States Attorney were scheduled for May 1, 2013. At a hearing  on December 20, 2012, the goverment indicated that it believed it could produce all discovery, except pending investigation discovery (PID), by February 1, 2013. The court ordered  the production of discovery consistent with the government's representations. However, given the relatively ambitious discovery schedule in a case of this magnitude, the court noted that "[i]f the government does not anticipate producing discovery in a timely manner, the government shall request an extension of time in advance of February 1, 2013." On February 1, 2013, the goverment requested  such an extension and suggested March 3, 2013 as a reasonable date for the provision of all discovery except PID. The court granted  the government's request and set March 3, 2013 as the discovery deadline. There were no additional requests for an extension of the discovery deadline. The government produced thirteen volumes of discovery prior to the discovery deadline.
In light of discovery delays, the parties agreed to a three month extension in the DPP and the defense presentations to the United States Attorney were moved to August 1, 2013, with the Capital Review Committee scheduled to meet on August 19, 2013. On June 10, 2013, Grigsby requested  an additional extension of time due to the effects of funding cuts to the Criminal Justice Act Panel caused by sequestration and because of additional delays in the timely provision of discovery in readily accessible formats. Because of the large number of law enforcement agencies involved, it was apparently difficult to convert electronic discovery into formats that defendants could utilize. The government acknowledged that it had encountered some difficulty in obtaining discovery from law enforcement agencies and did not oppose a limited extension of time, but argued that it had "far exceeded its discovery obligations under Federal Rule of Criminal Procedure 16(a), as well as Brady, Giglio, and the Jencks Act." Gov't's Resp.  at 5. Because the parties were unable to agree on a new schedule and because Pedersen objected to a lengthy continuance, this court denied  Grigsby's request with leave to renew.
Grigsby then filed a renewed motion for an extension of time . Because of the government's failure to provide accessibly formatted discovery in a timely manner and due to sequestration's effects on defense preparation, the court granted  the requested continuance over the objections of Pedersen. The defense presentations to the United States Attorney were scheduled for November 4, 2013; the defense presentations to the Capital Review Committee were set for December 9, 2013; and a status conference regarding the Attorney General's determination was set for February 7, 2014. The court set July 7, 2014 as the date to begin jury selection.
On September 27, 2013, Grigsby requested  an additional two-month delay in the schedule. Oral argument on her motion was held on October 2, 2013. During oral argument, counsel for both defendants complained about continued discovery delays. However, this court concluded  that the November 4, 2013 hearing date would give Grigsby a "reasonable opportunity to present any facts, including mitigating factors, for the consideration of the United States Attorney" and denied Grigsby's requested continuance. USAM § 9-10.050. At that time, the court was unaware of the gravity of the discovery problems as the prosecution team had acknowledged only a fraction of the problems then known to it and had argued that "the DPP has been delayed long enough... defendants have been given far more time and far more discovery than most defendants receive before the death penalty decision is forwarded to the [Capital Review Committee] and the Attorney General." Gov't's Resp.  at 7.
C. Volume 31 of Discovery and Initial Exposure of Serious Problems
On October 9, 2013, Grigsby filed an additional Motion for Extension of Time . That motion came on the heels of the prosecution's production of Volume 31 of discovery, which contains video and audio recordings of five interviews with defendants' family members that were recorded in 2011, These interviews are "death penalty interviews" and take place with a defendant's family members soon after the commission of a murder, The government produced Volume 31 of discovery the day after the October 2, 2013 hearing. At no time during, or prior to the hearing, did the government notify the court or defendants that the additional pre-indictment discovery was forthcoming.
That same discovery, in part, prompted Pedersen to file a Motion to Compel , which requested, among other things, additional unproduced evidence that Pedersen believed to be in existence due to the content of Volume 31, including photographs received from Pedersen's family members during the death penalty interviews. Pedersen's Motion to Compel also requested additional unproduced evidence, such as Pedersen's jail calls from the Multnomah County Detention Center (MCDC), none of which had been provided despite the fact that Pedersen had been housed there for approximately one year. Lastly, Pedersen requested the reproduction of some discovery in useable format. The Motion to Compel outlined wide-ranging and pervasive discovery problems in the case beyond the specific items requested.
In opposing Pedersen's Motion to Compel and Grigsby's Motion for Extension of Time, the goverment filed declarations from both AUSAs on the prosecution team and from Detective Steele, who was at that time, the lead investigator for the prosecution team. The declarations addressed defendants' broader allegations of discovery violations and the specific facts related to Volume 31 of discovery.
With respect to the broader discovery problems, AUSA2 explained that the government had generally processed discovery promptly upon receiving it, but that processing discovery in this case has been difficult because the crimes charged in the indictment occurred in three states and were investigated by dozens of different law enforcement agencies. Gov't's Decl.  at ¶¶ 2 and 5. AUSA2 explained that because of ongoing discovery difficulties the USAO sent an email to multiple law enforcement agencies in July 2013 requesting that they "provide the USAO with any index/log/lists of evidence and reports they had in connection with this investigation" Id. at ¶ 3. More recently, both AUSAs had directed Susan Cooke, the Supervisory Information Technology Specialist for the Automated Litigation Support unit within the USAO, to conduct a comprehensive audit of the discovery in this case. Id. at ¶ 5. As of October 16, 2013, the government had produced thirty-two volumes of regular discovery with over 48, 000 files, which included hundreds of hours of audio and video recordings. Id. at ¶ 5.
With respect to the discovery already produced, AUSA2 stated that the "USAO maintains a Discovery Log that tracks exactly what was provided to defense counsel, to whom it was provided, the date provided, and a brief description of any notes regarding it." Id. at ¶ 6. Additionally, the USAO "maintains a Discovery Index, which tracks each and every item (usually documents or recordings) in discovery including the Bates number, volume, number of pages, and a brief description of the item, as well as other identifying fields." I. at ¶ 7. AUSA2 stated that the Discovery Index covers all thirty two volumes of discovery produced at that time, and had been provided to defendants "with each and every production" of discovery. Id. at ¶¶ 7-8.
With respect to Volume 31, the AUSAs explained that they were aware that the five death penalty interviews had taken place in 2011, but were unaware until September 18, 2013 that the interviews had not been provided to the USAO and had not been produced in discovery to defendants. Upon learning that the recorded interviews had not been produced, the AUSAs requested that OSP provide them with the interviews immediately. One week later, on September 25, 2013, the AUSAs realized that they still did not have (and had not produced to defendants) the interviews and requested them again. On September 27, 2013, OSP overnighted the interviews to the USAO and on October 3, 2013, the USAO produced them to defendants, The AUSAs stated that they did not think to mention the forthcoming discovery during the hearing on October 2, 2013, because they were focused on the arguments at hand. In hindsight, they state that they should have mentioned the missing discovery to defendants as soon as they became aware that it had not been produced. Gov't's Decl.  ¶¶ 2-4; Gov't's Deci.  ¶¶ 16-19.
Detective Steele, for his pail, explained that "[t]he recordings and reports of the Death Penalty Interviews done in this case were set aside and maintained separately from the investigatory reports and evidence at OSP." Steele Deci.  ¶ 4. Apparently, "[t]his was consistent with [OSP's] normal practice in state death penalty cases." Id. According to Detective Steele, the AUSAs had repeatedly asked for all reports and evidence, but "[b]ased on my state death penalty experience at OSP, I understood those requests to apply to the reports and evidence generated through the investigatory process, not the separate death penalty process." Id. at ¶ 5. Detective Steele also reported that "[w]e did not obtain any photographs from [Pedersen's sister.] or other family members interviewed." Id. at ¶ 8.
During oral argument on the Motion to Compel and Motion to Extend Deadlines on October 16, 2013, defense counsel immediately took issue with the veracity of the government's declarations and with the government's characterization of how discovery had been provided in this case. In particular, one of Pedersen's attorneys, Assistant Federal Public Defender (AFPD) C. Renee Manes, argued that less than half of the volumes of discovery were provided with an index and that the indices provided contained relatively little information. In some instances, a single Bates number would contain dozens or hundreds of files and almost no description of the contents. Moreover, only thirteen of the thirty-two volumes of discovery produced at that time were produced in compliance with the court's discovery deadline. The majority of the untimely discovery was not PID. AFPD Manes argued that:
So to say that somehow the Government has provided these indexes and there's no reason why we can't-understand what's going on in their discovery is a complete fallacy. If they had provided such indexes, if they did know what was in their discovery, they would have known that they had attorney-client phone calls of Ms. Grigsby, of Mr. Pedersen, and of their informant. If they had so many indexes, they would not have twice provided to us duplicative Bates number discovery... So to believe from [AUSA2's] declaration that somehow the discovery is all well and good, is all being provided to us expeditiously in useable formats and there's no problems, that is just false. It is a false statement.
During oral argument, AUSA1 acknowledged the discovery problems but initially stood by the declaration of AUSA2, stating: "We do have the discovery indexes. We have the detailed - I forget how Ms. Cooke described the difference between - oh, the discovery log versus the detailed discovery index to try to track what discovery is there." Later, AUSA1 backed away from that statement to a certain degree, stating that she "can't answer now - if the Court needs a further explanation, we can find out from Ms. Cooke further details about those indexes and what the discrepancy is between what Ms. Manes has told the Court about the indexes and what our understanding of those indexes is." Prior to oral argument, defendants had suggested that they might request a finding that the government had acted in bad faith in accordance with the Ninth Circuit's ruling in United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). By the end of oral argument, both defendants requested that this court make a finding that the government had acted in bad faith. One of Grigsby's attorneys, Kathleen Correll, argued that:
[I]t seems like the prosecutors' position is that "we need adequate time to do and take certain steps that we need to take, but you, defense, can just keep sucking up the late discovery that we keep giving you and deal with it"... they don't even know what they have or the extent of their discovery and what it entails. And the' fact that this stuff has been dealt with - stuff they're dealing with in July, the efforts they're making now are great, but I still don't know - I haven't heard any explanation about why those efforts weren't made... when the defendants were arraigned.
AFPD Manes argued that:
Our position is at some point in time this negligence amounts to bad faith. If the government had informed us back in March, "We're still having problems getting material. It's going to roll in slowly. We just want to make you aware of that, " there might have been less bad faith, but that type of representation was never made. This material was just dropped on us and dropped on us the next time and dropped on us the next time, and never was there an explanation... they are not complying with their obligations, they are not complying with the court's order, and the only time they make that acknowledgment is when we file motions and we bring it to the court's attention.
At the conclusion of that hearing the court granted Grigsby's request for an extension of time and ordered that the defense presentations to the United States Attorney be moved from November 4, 2013 to December 9, 2013; that the defense presentations to the Capital Review Committee be moved from December 9, 2013 to a mutually agreeable date in early January 2014; and that all other deadlines remain the same, including the February 7, 2014 status conference. This shortened the time frame during which the Attorney General would be able to consider whether death was appropriate. Under that resolution, the court was able to provide Grigsby with additional time without causing prejudice to Pedersen, who continued to oppose any further delay in the case schedule.
On October 17, 2013, Pedersen filed a supplemental brief  noting that the defense had only received fifteen discovery indices and that they were not the detailed indices outlined in AUSA2's declaration. Pedersen had requested copies of the indices outlined in AUSA2's declaration, but the government indicated that it would need additional time to provide them, in part because some discovery volumes were inaccessible due to the pending taint review process.
In the declarations attached to the government's response, Cooke and AUSA2 provided clarification regarding what had, and had not, been produced to defendants. AUSA2 stated that in drafting her previous declaration, she had relied on emails from Cooke regarding the number and content of the indices provided in discovery because Cooke "understands the technological details of the discovery in this case much better than I do." Gov't's Decl.  at ¶¶ 2, 4-5. AUSA2 stated that since filing the October 16, 2013 declaration, "it has come to my attention that the discovery index for this case is maintained in a variety of different formats, and that the amount and type of indexing information varies." Id. at ¶ 10. "I now realize that the indices for some discovery volumes have less detailed information than I had seen with other productions and that I understood we were providing in this case when I prepared my declaration of October 16, 2013." Id. Cooke explained that when she provided information to AUSA2 regarding the nature of the discovery indices it was primarily "to confirm that the goverment maintains discovery logs and other indexing materials for this case that can be used to identify what discovery has or has not been produced." Cooke Decl.  at ¶ 3. Cooke further explained that indices had been provided with nearly all volumes of discovery. Id. at ¶ 15. However, Cooke uses the word "index" quite broadly and interprets it to refer to many types of indexing information including Excel files, file listings, Adobe indices, and cover letters. Id. at ¶¶ 8, 14. Given this definition of the term "index, " it is obvious that "[s]ome volumes of discovery have indices with more detailed information and some have less." Id. at ¶ 9; Tr. 465-66 (some Bates numbers included multiple audio or video files, for example, in one instance a single Bates number was associated with approximately 8, 000 files). Cooke provided defendants with the USAO's discovery index on October 22, 2013, along with previously produced individual indices. Id. at ¶ 15.
The court eventually granted  Pedersen's Motion to Compel. Along with the response to Pedersen's supplemental brief, the government filed a Motion to Appoint a Magistrate Judge  to oversee discovery in the case. That motion was later denied  as the court did not want a duplication of judicial efforts or the possibility of inconsistent direction to the prosecution team.
D. Initial Revelations of Detective Steele's Misconduct
On December 13, 2013, Cooke was working on the discovery audit in "the cave, " a workspace used by OSP personnel on the prosecution team, when she discovered a letter on Detective Steele's desk. The letter, dated November 29, 2011, was from Pedersen's sister and read "Hi Detective Steele, Here are the pictures you requested. I'm sorry it took me so long to get them to you. My main worry is that whomever gets these pictures will use them to paint my brother in a good way.." Notice  at 5; Ex, 236 In response to this revelation and others, Detective Steele was removed from the prosecution team and was placed on administrative leave. The discovery audit continued and extensive, previously undisclosed evidence, was produced in discovery. Status Report Regarding Gov't's Discovery Audit .
E. Evidentiary Hearing
The goverment requested an evidentiary hearing to resolve defendants' requests for a finding of bad faith. During the evidentiary hearing held April 7, 2014 through April 10, 2014, the court gained additional insight into what had occurred in the months leading up to the initial exposure of discovery problems in October 2013 and in the provision of discovery after the comprehensive discovery audit began in October.
At the outset of the case, OSP was supposed to be the central repository for receiving and organizing discovery. Analyst 1, a research analyst at OSP, was responsible for organizing much of the discovery, though she did not handle any actual evidence. Tr. 227-28. Rather, she was supposed to receive and organize all reports regarding evidence. The actual evidence was segregated from the reports at OSP, though it does not appear the AUSAs were aware of this. Tr. 637. The discovery would then be transferred from OSP directly to the AUSAs. Tr. 297. The AUSAs then transferred it to the Automated Litigation Support Unit to process and add Bates numbers. Tr, 297-98. The processed discovery would be returned to the AUSAs and they would provide it to defense counsel. Cooke and her team members on the Automated Litigation Support Unit were responsible for providing technical support but were not tasked with reviewing discovery or ensuring that the USAO was producing legally sufficient discovery. Sometime during the spring of 2013, evidence was transferred from OSP to the FBI, in part due to concerns the AUSAs had regarding organization at OSP. Tr. 315.
Initially, the AUSAs believed that discovery was being provided in accordance with the discovery deadline. AUSA2 testified that "the only things that we thought were still remaining [to be produced] as of March 1st were matters related to our ongoing investigation." Tr. 630. It appears this confusion stemmed from the fact that the AUSAs were not actively reviewing the discovery as it was produced.
The District of Oregon Criminal Discovery Policy states that AUSAs "will gather and review all case-related reports and evidence." The Federal Criminal Discovery Blue Book,  citing the Ogden Memo, states that "[it is preferable' but not always feasible or necessary' for prosecutors to review the relevant material to identify discoverable information, " and the Ogden Memo itself suggests that "No ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed." Tr. 631; Exs. 15 at 2; 350 at 24; 351 at 4. The AUSAs determined that it was impractical and unnecessary to review all discovery in this case due to the large volume of discovery involved and because they had taken the position that, as a potential ...