For over a decade, Mirriam has been railing against the injustices that frequent our courts. My piss n’ vinegar boiled when I heard about the recent case, U.S. v. Annappareddy, and Mirriam graciously lent me space to rant and rave about prosecutorial misconduct.
Sandra Wilkinson, head of the Major Crimes Division at the United States Attorney’s Office in Baltimore, personally directed the destruction of evidence in this case. That’s right. Destroy. She didn’t misplace it in a cluttered office. She affirmatively and unapologetically destroyed it. The accused, Annappareddy, was a pharmacist. They accused him of getting paid for scripts he didn’t deliver. They destroyed receipts and logs that could have proved his innocence.
Mirriam and I talk exhaustively about the unfettered power prosecutors wield in the federal court system. Prosecutors threaten double digit prison sentences to coerce people into guilty pleas. This happens every damn day. Is that not enough? Do prosecutors need such maniacal control of outcomes that they have to destroy evidence and put on false testimony? This shit has to stop.
Judge Russell, as of last Thursday, had already ordered a new trial because of false testimony put on by the feds in the first trial. More on that as we progress. But now, procedurally, he had to decide if he was going to let the prosecutor re-prosecute him after their outrageous conduct in the first trial. You should’t be able to cheat and lie and get another stab should you? Judge Russell is no bleeding heart jurist. He will let you put on your case as a defense attorney, but you aren’t ever going to hear a prosecutor complain about him giving some wussy jail sentence. With that information, like a soothing bedtime story from your daddy, lets read straight from Judge Russell‘s ruling/roasting:
The failure to disclosure (sic) is in violation of Brady, the history of late disclosures and the promotion of false significant testimony in this case does shock the conscience of this Court. …..Furthermore, the Court is very hesitant to invade the province of the Executive Branch of government. However, the Court finds that the violations of Rule 16 and the defendant’s Fifth Amendment Constitutional right to due process due to the aforementioned conduct of the government including its witnesses at trial is sufficient to require the Court to enter an order dismissing both Counts 1 and 2 of the second superseding indictment with prejudice. (Sentencing Transcript p. 59-60)
We win right? Justice wins right? Yah right. This poor sap and his family went through hell for 3 years and the prosecutor made a mockery of our judicial system. Nobody wins. Unless, we take action.
Sandra Wilkinson asserted to the court that she didn’t think she did something wrong. How many other times has she done this? She is not a rookie prosecutor. Wilkinson is a long-time AUSA who oversees other prosecutors. She has had the role of mentoring and training newer AUSAs. Did she teach the practice of destroying evidence while cases are pending? I don’t know. I suspect (and hope) that skilled defense attorneys will use this well-documented instance of outrageous behavior to delve further into other cases handled by this prosecutor (or the office as a whole).
In addition to evidence destruction, the government put on two separate pieces of materially false testimony that directly led to Mr. Annappareddy’s conviction. After the first trial, new defense counsel Schamel and Greenberg engaged in intensive evidence and trial transcript review. The following was revealed.
In 2012 Mr. Annappareddy received an email from Jigar Patel, an employee of Mr. Annappareddy’s business. The email referred to concerns of Mr. Patel’s regarding the necessity of reversing some insurance claims. The Government argued at trial that this email made references to unlawful practices of the pharmacy and that Annappareddy’s lack of of response was evidence of his guilt. In closing the government argued:
“[T]he Jigar Patel e-mail that is so damning in July of 2012, that [a prosecutor] showed you. You just have to go back and read that. And the fact that Mr. Annappareddy didn’t respond to [it], it speaks volumes.”
(Trial Transcript, December 1, 2014. at 237:23 – 238:2
The government agent testified that she reviewed all relevant phone records for the time period the email was sent. The agent testified, unequivocally, that Annappareddy did not respond. This was false. The defense discovered that the government had not even requested the appropriate phone records to support their assertion of Annappareddy’s silence. The government did not request phone records for Jigar Pate’ls cell phone number for that date. Further, the records show that the government did not obtain phone records for Mr. Annappareddy or Jigal Patel for the appropriate time period at all. Defense counsel recovered the right phone records that clearly showed that there had been contemporaneous communication between Patel and Annappareddy.
At the recent motions hearing AUSA Wilkinson admitted that the agent didn’t review the applicable phone records for July 25, 2012 prior to testifying. The Court found that the agent’s testimony was false. The Court then admonished the AUSA Wilkinson for vouching for the agent at the hearing. Prosecutors vouch for their agents all of the time. They are rarely called on it. But, they were here!. Judge Russell:
But I’m interested in the facts. There’s some significant evidence that was put before this jury that this gentleman was convicted under, if it weren’t for the resistance of the government in the motion for new trial that, because of that resistance, if I let it go, he’d be in prison right now. He would be in prison. And the Court would have sentenced him to prison. But actually, he shouldn’t be in prison, because his constitutional due process rights were violated, and they were violated by mistakes the government made. (Tr. 18)
Prison. Russell flat out said he was about to send this guy to prison. When the government lies and cheats people go to jail. Period. This case is Exhibit A.
As if this case wasn’t outrageous enough, the government artificially inflated the dollar amount of fraud in this case in order to give the defense little hope of success. If you try to convince a jury of a few thousand dollars in fraud you might have some reasonable doubt as to whether or not it was intentional. (especially a high-volume business) Prosecutors can fix such a dilemma by jacking up their amounts. They also inflate these numbers because it gives them a big scary hammer to wack people with. Many times defendants plead guilty in federal cases under the threat of daunting jail sentences created by such ridiculous estimates.
At various points during the prosecution the government came up with wildly different amounts of $ loss caused by Mr. Annappareddy. The government expert first testified that the loss was about $4.5 million dollars. Later in the trial the same expert testified that the loss amount was around $2.4 million. The amount of loss actually became even lower through subsequent review and investigation. Of course, this all happened after Mr. Annappareddy was found guilty. Judge Russell again at the motions hearing:
I understand the methodology. I understand the methodology is different. I understand that MEDIC came up with a loss amount using another methodology that’s different, that’s different. And you came up with an in-and-out methodology that is different but terribly flawed. And that methodology, if the defense had it, then they would have been able to cross-examine Miss Hammond on the discrepancy. (Tr. 23)
Later, in the during Russell’s ruling, he found that the government was well aware of the risk artificially inflated $ loss and they did not disclose any of it to the defense team.
In the federal criminal justice system the majority of the power lies with the prosecutor, not the court. Defense attorneys must look into other cases handled by this prosecutor and we must also push for reform of criminal practice and procedure. There must be significant consequences for this type of behavior. If not, it will be repeated.
Judges assume that prosecutors are telling the truth about their case and their evidence. They shouldn’t and neither should you.