by Shawn Musgrave and Brooke Williams, Published by Criminal Legal News with permission from The Intercept, July 18, 2018

A team of federal prosecutors charged with promoting “consistency and fairness” in death penalty cases has been hurling incredible, on-the-record accusations against one another — from neglecting boxes of evidence to destroying interview notes — and defense attorneys want to know why this is the first they’re hearing about this alleged misconduct.

Publicly, prosecutors typically are tight-lipped about missteps. But a recent internal dispute and civil lawsuit prompted some members of the Capital Case Section to speak up about serious misconduct in some death penalty cases.

In 2016, federal prosecutor Jacabed Rodriguez-Coss sued the Justice Department, alleging supervisors in the Capital Case Section discriminated against her and retaliated when she filed a complaint. A judge tossed out her lawsuit in late June, according to court records, and she intends to appeal.

While Rodriguez-Coss’ lawsuit had nothing to do with how federal prosecutors behaved in a courtroom, both sides dredged up alleged misconduct in how they handled death penalty cases.

It’s rare for details like these to come out publicly, and even more unusual for prosecutors to be pointing the finger. Even judges almost always redact the names of prosecutors when they find misconduct egregious enough to throw out a conviction.

But now defense attorneys are questioning the capital case unit’s overall integrity.

“It is safe to assume that if Ms. Rodriguez-Coss had never filed her gender-discrimination suit, the government never would have disclosed even the limited information it has now provided,” defense attorneys wrote to a judge in March.

Serious Failures and Deficiencies

When she filed her discrimination lawsuit, several former colleagues of Rodriguez-Coss submitted affidavits in support of her case. One of them delved into the way prosecutors handled death row cases, pointing to “serious failures and deficiencies.”

James Peterson, who still works on the death penalty team, allegedly destroyed interview notes he took as part of an ongoing murder case in Indiana. But the defendant’s attorney would have never known that the interviews happened in the first place — much less about the possibility of destroyed evidence — if it weren’t for Amanda Haines, who retired from the team in 2017 and submitted a sworn statement in support of Rodriguez-Coss’ lawsuit.

In her affidavit, Haines, who worked for the Justice Department for about two decades, said she brought concerns to her supervisors about the way some of her male colleagues handled cases, but they did nothing.

Reached via phone, Haines declined to discuss prosecutorial misconduct in the capital case unit.

When Haines took over an Indiana death penalty case in 2014, she said in her affidavit, she found Peterson had destroyed notes from interviews with a dozen witnesses. She claimed this violated a Justice Department directive requiring that “prosecutor notes and original recordings should be preserved.”

That directive was issued in 2010, in the wake of high-profile misconduct cases, such as the systematic hiding of evidence in the prosecution of late Alaska Sen. Ted Stevens.

The Indiana defendant, Andrew Rogers, claimed he unsuccessfully sought mental health treatment from the prison before killing another inmate. On his supervisors’ orders, Peterson interviewed people who might have had knowledge about Rogers’s attempts to seek treatment — details that might have helped Rogers. But Haines alleged that he destroyed notes from these conversations.

Only because of the Haines affidavit did the defense even know these interviews took place. The New York Times wrote earlier this year about the lawsuit and the demotion of two Capital Case Section chiefs amid separate harassment allegations.

“The government actually continued to withhold the information for years, to be discovered only by chance after a former CCS lawyer filed a civil lawsuit in a district almost a thousand miles away,” defense attorneys wrote to the judge.

In her statement, Haines said she told supervisors she believed Peterson’s conversations with mental health professionals “needed to be disclosed to the defense.” But rather than investigate, she said, they took her off the case.

After Haines’ affidavit, Peterson wrote to the court that his interviews were brief and none of the interviewees provided details that might “exculpate Rogers or damage the government’s case against him.”

“At no time, have I attempted to suppress the fact that I interviewed [Bureau of Prisons] personnel,” Peterson wrote.

In January, Rogers’ attorneys asked a judge to prohibit the government from seeking the death penalty, calling it “shocking that prosecutors in the section dedicated solely to capital cases would be so cavalier in regard to a defendant’s life.”

Over prosecutors’ objections, the judge ordered the government to search for any handwritten notes or other documentation from Peterson’s interviews that might still exist. The judge also ordered Haines and Rogers to answer questions under oath about the matter.

Rogers’ attorney, Nathan Chambers, declined to discuss the case and said in an email that his team didn’t “want to be perceived as litigating the issue in the media rather than in court.”

The U.S. Attorney’s Office for the Southern District of Indiana declined to comment.

In the same affidavit, Haines accused another former co-worker, Steven Mellin, of failing to review stacks of potential evidence or interview important witnesses in another death penalty case. She inherited the case from Mellin in 2013, she said, only to discover potentially exculpatory material sitting in unopened boxes.

“I learned that significant deadlines had been missed and that important documents had not been reviewed or produced,” Haines wrote in her affidavit, adding that key witnesses “had never been interviewed.”

Mellin did not respond to multiple emails and calls.

Upon interviewing the neglected witnesses, Haines found that one might have lied on the stand. The defense asked the judge to prohibit the government from seeking the death penalty, claiming “a troubling pattern of non-disclosure by the prosecution.” Notably, the court had reversed the original death sentence after a different group of federal prosecutors withheld several FBI reports.

The judge denied motions alleging prosecutorial misconduct, and the government eventually agreed to a plea agreement with life imprisonment.

At the time, Haines said, she flagged Mellin’s handling of this case to her supervisors. But far from being investigated for potential discipline or retraining, he was assigned to lead the high-profile trial of Boston Marathon bomber Dzhokhar Tsarnaev.

The U.S. Attorney’s Office for the Middle District of Pennsylvania declined to comment.

Mellin left the Capital Case Section and currently is a federal prosecutor in Texas.

Ruth Friedman, a federal defender in Maryland and director of the Federal Capital Habeas Project, said in an email that Haines’s allegations of misconduct were disturbing.

“Her references to prosecutors withholding exculpatory, impeachment, or mitigation evidence at the very least raise serious questions about the fairness of federal capital trials,” she said.

Serious and Unacceptable Problems

After the Rodriguez-Coss lawsuit grabbed national headlines, defense attorneys around the country began taking a second look at cases involving the death penalty squad.

An attorney for Ricky Fackrell, a white supremacist sentenced to death in Texas in June for killing another inmate, filed a motion alleging the prosecutor’s handling of his client’s case “fits the pattern” Haines described.

There are “serious and unacceptable problems at the CCS,” his attorney, Gerald Bourque, wrote in a motion seeking the prosecutor’s interview notes. The judge denied the request, ruling that “purported personnel problems” in the unit were not relevant to the case at hand.

“The CCS makes itself a target for investigation,” Bourque said in an email. “From its makeup to its decision-making processes to its in-house politicking. It’s all subject to scrutiny. Are they deciding based on case value or on advancement or other non-case related factors?”

Fackrell has appealed his conviction. The U.S. Attorney’s Office for the Eastern District of Texas declined to comment.

In May, defense attorneys for Donald Fell, who is facing the death penalty in Vermont, argued that assertions by “insiders” like Haines “raise questions about the integrity of the Department of Justice’s handling of pending Federal capital cases.”

Until Rodriguez-Coss sued, they didn’t know one prosecutor was being disciplined for how he was handling their client’s case while it was still ongoing. They asked for materials showing whether “misconduct, ethical lapses, and/or malfeasance within the Capital Case Section” might have tainted the trial.

Prosecutors responded that the alleged misconduct had nothing to do with Fell’s case and his request for documents was “premised on the ambiguity of loaded verbiage cherry-picked from a civil suit.”

“Those claims may impugn the ethics of some government employees, but they shed no light on Fell’s case,” wrote Assistant U.S. Attorney Bill Darrow in a motion. Darrow declined to discuss the case.

Blameworthy Conduct

The discrimination lawsuit even surfaced allegations against Rodriguez-Coss herself.

In denying her suit in June, the judge said her supervisors’ actions were justified given Rodriguez-Coss’s “egregious” behavior and “clear and repeated failures” to follow court orders.

Asked about their decision to call Rodriguez-Coss back to Washington, D.C. — a move she said was retaliation after she complained about travel requirements — supervisors pointed to a California judge’s “blistering criticisms” of her behavior.

In January 2014, during a murder trial in Fresno, California, the judge lectured both sides, chastising the defense for a motion he considered an “overreaction.” However, the judge said, those concerns “pale in comparison to my reaction to some of the stuff that’s going on with the government in this case.”

“It might be most charitably described as cavalier,” the judge said of the string of deadlines Rodriguez-Coss and her team had missed. He counted off six late filings from the previous year alone.

Almost a year earlier in the same case, the judge had noted the government’s tardiness in responding to discovery motions, further admonishing Rodriguez-Coss that her responses “all too often appear cursory.”

He also pondered “why government counsel should not be held in contempt for their flagrant disregard of the court’s orders.” Another judge warned Rodriguez-Coss that a “pattern of late filings” might lead to sanctions.

At the January 2014 hearing, Judge John Coughenour asked her what further options he had.

“One would be to send a letter to the Attorney General of the United States expressing my displeasure at the way this case is being handled,” Coughenour said, adding that he could send her supervisor a transcript of the rebuke.

“I’m not going to do either of those things today,” he said. “But I’ll do both of them if this doesn’t stop right now.”

Rodriguez-Coss did not return multiple phone calls or an email requesting an interview.

Gwynn Kinsey, who was deputy chief of the Capital Case Section until he was investigated for harassing an administrative assistant, according to the New York Times, said he ordered Rodriguez-Coss to the Justice Department’s headquarters for closer supervision — not out of retaliation. He said he did so after the court made good on its warning and sent hearing transcripts to the U.S. attorney’s office in Sacramento.

“I’ve never had a case where I’ve had these kinds of expressions of concern by a court with one of my attorney’s performance,” Kinsey said in an August 2017 deposition as part of the discrimination lawsuit. He considered the judge’s frustrations to be “fair criticism,” he said, but didn’t formally determine whether Rodriguez-Coss committed misconduct.

Rodriguez-Coss said the judge’s courtroom reprimand wasn’t out of the ordinary.

“If you haven’t been yelled at by a judge or admonished at some juncture in your career as a litigator representing the government in court, then you haven’t been to court much,” she said in a deposition. Rodriguez-Coss said the judge’s criticism was “unjustified.”

The judge who ruled on her lawsuit pointed to how Rodriguez-Coss’ behavior had “caught the attention of not just one, but two federal judges.”

Rodriguez-Coss resigned from the Capital Case Section in May 2014 after accepting a position in the Connecticut U.S. attorney’s office as deputy chief of the national security and major crimes unit.

An examination of court records shows Rodriguez-Coss’ alleged misconduct hasn’t been limited to cases involving the death penalty team. More than a decade earlier, before she joined the Capital Case Section, the 1st Circuit found “bad behavior” in her handling of a drug case. She failed to disclose key details of a deal with a cooperating witness, the court found, and her closing argument undercut the constitutional presumption of innocence.

“This conduct is blameworthy and the government should take steps to see that it does not recur,” the 1st Circuit ruled, although the panel determined that her actions didn’t entitle the defendant to a new trial. They did not name her in the published opinion.

“Again, we do not approve of the prosecution’s conduct; we hold only that it does not provide a basis for reversal,” the opinion stated.

Rodriguez-Coss said she notified the Justice Department about the 1st Circuit ruling at the time and was later “cleared of any misconduct during an internal investigation.”

In an ongoing intellectual property theft case in Connecticut, defense attorneys have accused Rodriguez-Coss and her team of “multiple and serious violations,” such as failing to turn over FBI interview reports. The judge currently is considering a motion for a new trial based on allegations of prosecutorial misconduct. 

This article by Shawn Musgrave and Brooke Williams is published by Criminal Legal News with permission from The Intercept. It originally appeared July 18, 2018, on the intercept.com. Copyright, First Look Media Works, Inc.

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