Check out the Ninth Circuit’s decision in U.S. v. Chapman for a sharp rebuke of the government, including the affirmance of a district court’s dismissing an indictment with prejudice — thus barring retrial — because of government misconduct:
The district court did not abuse its discretion in dismissing
the indictment. The government egregiously failed to meet its
constitutional obligations under Brady and Giglio. It failed to
even make inquiry as to conviction records, plea bargains, and
other discoverable materials concerning key witnesses until
after trial began. It repeatedly misrepresented to the district
court that all such documents had been disclosed prior to trial.
The government did not admit to the court that it failed to disclose
Brady/Giglio material until after many of the key witnesses
had testified and been released. Even then, it failed to
turn over some 650 documents until the day the district court
declared a mistrial and submitted those documents to the
court only after the indictment had been dismissed. This is
prosecutorial misconduct in its highest form; conduct in flagrant
disregard of the United States Constitution; and conduct
which should be deterred by the strongest sanction available.
Under these facts, the district court did not abuse its discretion
in characterizing these actions as flagrant prosecutorial misconduct
justifying dismissal. Nor did it abuse its discretion in
determining that a retrial — the only lesser remedy ever proposed
by the government — would substantially prejudice the
defendants.
And from earlier in the opinion:
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. Accordingly,
although dismissal of the indictment was the most severe
sanction available to the district court, it was not an abuse of
discretion.
By the way, note that the panel decision was unanimous, and that the panel consisted of two moderate Clinton appointees (Judges Wardlaw and Hawkins) and a quite conservative Reagan appointee (Judge O’Scannlain).