Superior Court Justice Daniel Billings presides over an arraignment in West Bath District Court in July. Billings criticized state prosecutors last month for disclosing information that witnesses may not be credible too close to trials. Brianna Soukup/Staff Photographer
Maine prosecutors say there’s nothing wrong with how they disclose concerns about their witnesses’ credibility – even if those disclosures sometimes come days or weeks before a criminal trial.
Still, a judge’s criticism that prosecutors are either being “tactical” or “slipshod” in their late disclosures is prompting the Office of the Maine Attorney General to adjust its policies.
Superior Court Justice Daniel Billings issued a rare sanction against the Office of the Maine Attorney General last month after defense attorneys said a prosecutor waited until two weeks before a homicide trial was set to begin to disclose personnel information that showed a witness might not be credible – information the attorneys argued the state has known about since 2020. He called the situation “outrageous.”
Prosecutors are required under federal and state law to hand over all “favorable” evidence to a defendant, including any information affecting a witness’ credibility, even if it’s not directly related to a defendant’s case. These are known as Brady or Giglio disclosures, required by two U.S. Supreme Court cases that have been established precedent since the 1960s and 1970s.
The problem, according to many Maine defense attorneys, is that this information is often handed over just before trial, complicating months of work invested in presenting an effective defense.
“This is an enormous problem,” said Tina Nadeau, the director of the Maine Association of Criminal Defense Lawyers. “This troubling practice is, unfortunately, very common. Prosecutor offices very rarely disclose constitutionally mandated Giglio information in a timely fashion.”
Danna Hayes, a spokesperson for the attorney general’s office, said Thursday that the office plans to modify its practices. Hayes said in an emailed statement that the office “takes seriously its obligation” to turn over records in a timely manner. She said prosecutors have to balance “the privacy rights of individuals involved” with their obligation to share information with the court and the defense.
Going forward, Hayes said the office will automatically share the personnel information referenced in Billings’ order as well as any other routine records.
‘IT IS PERVASIVE’
Billings’ sanction is tied to the state’s case against Jason Ibarra, who is accused of strangling his mother to death in her Bath apartment on May 24, 2022.
The judge’s order meant Assistant Attorney General Leane Zainea could no longer call on the witness – whose identity is not disclosed in court records – because of the late disclosure. He said the state’s explanation, which is also not provided in written court documents, is “at best lacking and at worst inconsistent.”
Ibarra took a plea deal this month and is awaiting sentencing.
Defense attorneys say this isn’t just a problem in homicide cases – they see it in other felonies and misdemeanor cases, too.
“It is pervasive,” said Timothy Zerillo, a Portland attorney and director of the National Association of Criminal Defense Lawyers. “It’s systemwide and it happens all the time.”
Nadeau said prosecutors “rarely” disclose Giglio information in a timely fashion. And if a case isn’t going to trial, she said, sometimes the information doesn’t come up at all.
“It baffles the mind as to why prosecutors wouldn’t request Giglio material on their list of witnesses directly from law enforcement agencies at the commencement of the case and make further requests as the case progresses for any updates,” Nadeau said. “They have an affirmative duty to ferret out such information. They are falling down on the job.”
Prosecutors are legally required not only to disclose evidence that a witness may not be credible, but also to be aware of any evidence that might exist.
But Natasha Irving, the district attorney for Sagadahoc, Lincoln, Knox and Waldo counties, said that prosecutors’ offices also have limited resources and often rely on the law enforcement agencies to disclose potential issues.
Irving declined to comment on Billings’ order because she doesn’t know the details of the case, but said prosecutors are “routinely discussing” their obligations under Brady and Giglio. She said attorneys in her office regularly track law enforcement officers who have credibility issues and notify defense attorneys of that evidence during a defendant’s first appearance.
“I don’t want to pretend that we know everything that happens all the time, but the police agencies are supposed to be keeping us abreast of the issues,” Irving said. “In my district, it does seem like they want to be doing the right thing, because they understand.”
NO CENTRALIZED LIST, AGENCY
Nadeau and Zerillo believe judges should issue more sanctions to bar witnesses from testifying or even dismiss criminal charges.
“If judges hold prosecutors’ feet to the fire and hold them accountable for what they should have been doing since 1965, this will not happen,” Zerillo said. “When judges allow them to get away with it, then you have this culture of constitutional violations.”
Thea Johnson, a professor at Rutgers Law School in Camden, New Jersey, said these kinds of sanctions are rare, and send a message.
“When prosecutors violate these rules, judges tend not to punish them for it,” Johnson said. “And if they’re not punished for it then they don’t get the message.”
She said properly disclosing Giglio material can be integral to resolving cases and helping defendants make better decisions about “whether or not it’s in their best interest to pursue a plea agreement or go to trial.”
Rory McNamara, one of the attorneys defending Ibarra, said the issue points to a larger problem in Maine where there are no centralized resources for criminal defense – there is no statewide list of Giglio-impaired officers, and until last year Maine did not have a public defenders office (which still only has five members).
He and other attorneys say Maine should have a central list of law enforcement officers who have credibility issues, similar to New Hampshire’s “Laurie list,” which was made public in 2021.
And because the state does not have a centralized public defenders office, defense attorneys are often bound by protective orders and cannot share personnel information about witnesses, no matter how early it’s disclosed in a case.
“It’s because there’s no collective body, there’s no office behind us all, saying ‘Our attorneys, all of us, need to know that information,’ ” McNamara said.
Times Record Staff Writer Jason Claffey contributed to this report.
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