Appellate judge notes ‘concerning conduct’ of US attorney’s office in eastern NC

A federal Appeals Court judge issued her concerns Monday about practices within the US attorney’s office in Eastern North Carolina. Her concurring opinion in a federal firearms case calls attention to the office’s “concerning conduct.”

A three-judge panel of the 4th US Circuit Court of Appeals unanimously affirmed trial court decisions against Terry Kendell George Jr., who was convicted of firearm possession by a felon.

George had challenged the conviction based on information his lawyers learned during the course of his case.

“In the midst of trial, Appellant learned that the Government’s key witness had changed his story two weeks before trial, but the Government had failed to disclose that information to Appellant,” Judge Stephanie Thacker wrote for the panel.

George had been stopped by authorities in August 2020 while riding as the only passenger in a vehicle driven by his cousin, Prince Frazier. A vehicle search yielded a gun and ammunition authorities linked to George.

In December 2021, two months after George’s indictment on the firearm charge, Frazier told authorities two other passengers had been riding in the vehicle before the law enforcement stop. In March 2022, Frazier named two different people as the back-seat passengers.

“Although the Government supplemented its discovery responses to inform Appellant about the pre-trial interview and other information Frazier provided during the interview, the Government did not disclose to Appellant that Frazier had changed his story with regard to the identities of the rear passengers,” Thacker wrote.

Appellate judges agreed with the trial court that the failure to disclose the information “was not material” to George’s defense. The 4th Circuit agreed with the trial court that the error did not violate George’s rights under the 1963 precedent case Brady v. Maryland.

Yet Thacker added a two-page concurrence that criticized the US attorney’s office.

“Despite our conclusion that there was no Brady error in this case, I am compelled to write separately to address the concerning conduct of the United States Attorney’s Office for the Eastern District of North Carolina,” Thacker wrote. “The Government readily concedes that it should have disclosed the fact that Frazier changed his story when it supplemented its discovery before trial, and it has acknowledged that it ‘fell short of [its] own standards in this case.’”

“But the problem goes beyond offending the Government’s ‘own’ standards,” Thacker added. “While Brady provides a remedy for discovery abuses that prejudice defendants, discovery abuses that do not ultimately prove ‘material’ oft go unrebuked. … Even where discovery abuses are ‘harmless’ in a technical sense, they nonetheless ‘violate constitutional guarantees’ and erode public trust in the justice system.”

“I find it particularly troubling in this case that the Government supplemented its discovery to include some information about its final pre-trial interview with Frazier but did not disclose the critical information that he changed his story about the rear passengers,” Thacker wrote. “As the Government readily admitted at argument, ‘that decision was wrong … there was an error in judgment there, and we should have turned over the inconsistency.”

Thacker placed George’s case in context.

“And it is worth noting that this court has previously questioned this particular United States Attorney’s Office’s commitment to constitutional and unabusive discovery Practices,” she wrote. In a case called Bartko, the 4th Circuit raised concerns that the US attorney’s office believed “it can permissibly withhold discoverable materials and ignore false testimony.”

“To be sure, Bartko was ten years ago,” Thacker wrote. “Nonetheless, the similarities here are striking. What is more, on the same day we heard oral argument in this case, a separate panel of this court heard argument in another case which also involved misrepresentations and delayed disclosures by the United States Attorney’s Office for the Eastern District of North Carolina.”

“Suffice it to say, I am concerned about the Government’s discovery practices in the Eastern District of North Carolina,” Thacker concluded. “Given the confluence of cases in which the Eastern District of North Carolina United States Attorney’s Office has breached its discovery standards, it appears a re-evaluation is in order.”

Then-President Barack Obama appointed Thacker to the 4th Circuit in 2012.

US Attorney Michael Easley Jr. has served in his post in the Eastern District of North Carolina since November 2021.

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