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Prosecutorial Misconduct

Here are a couple of stories from around the U.S. that will interest those searching for some sanity in American criminal justice.

To start, we have a story from the Federal Criminal Appeals Blog. It turns out that the government believes riding in a car with drugs, even if a defendant had no idea drugs were present, is still a crime worth many years in federal prison. The story goes like this: a construction worker (Mr. Tavera) was riding to Tennessee to do a roofing job.

Prosecutor Hides Evidence of Innocence

Tavera’s driver had lots of construction equipment in the back of the truck, including a bucket of nails and a large quantity of methamphetamine below those nails.

The US Attorney for the case (D. Taylor) was told by the truck driver that Tavera had no idea the Meth was there, but forgot to mention that at Tavera’s trial which ended up netting him over 15 years in prison.

From the story:

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady 1Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963) material is still a perennial problem, as multiple scholarly accounts attest.”

See United States v. Tavera, 719 F.3d 705, 708 (6th Cir. 2013)

The Sixth Circuit explained that the prosecutor (Taylor) figured the conviction was Tavera’s lawyer’s fault for not doing a good enough job on defense. U.S. Supreme Court rulings are, however, very explicit that it is the prosecutors job to be forthcoming with any such evidence to ensure a fair trial.

With the deck already stacked so squarely in favor of the prosecution in federal cases, do they really need to act this poorly? The Sixth Circuit decided that this was so clearly unfair, that it ordered a new trial.

How long will this new trial even last with this evidence on the record for a jury to see? My guess: not long.

Update to Mr. Tavera’s Case

In researching the conclusion of this case, the conclusion was more depressing than expected. After the Sixth Circuit vacated Mr. Tavera’s conviction, and remanded back to the Eastern District of Tennessee for a new trial, the wheels of justice turned slowly.

While the appellate Court saw clearly that the testimony of Mendoza exonerated Tavera in June of 2013 when it decided the case, the prosecutor continued to pursue a new trial for nearly a year. In April of 2014, the bad-acting prosecutor finally moved the Court to dismiss the charged against Tavera.

Despite this, however, Tavera did not get to go home. Instead, a week before the Mr. Tavera’s drug charges were dismissed, the government charged him with being in the United States illegally, and for failing to report a felony he knew about (called “Misprision of a Felony”). United States v. Tavera, No. 2:14-CR-39 (E.D. Tenn. April 8, 2014).

The prosecutor in that case?

You guessed it: Taylor.

The same prosecutor who knew Tavera was innocent of the drug charges, but still condemned him to 15 years in prison for simply riding in the wrong truck. It seems Taylor could not just let his defeat go and required a pound of flesh from Tavera.

Tavera, who had already been incarcerated for more than four years during the process of his exoneration, signed the plea agreement for illegally entering the U.S. and for not telling authorities about a felony he knew nothing about.

Tavera was given a “time served” sentence and released to spend one year on supervised release. It is likely that Tavera was deported after this plea agreement. He still was a felon but, at the very least, he was free of the tyrannical and malicious prosecutorial authority of Assistant United States Attorney Taylor.


1 Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963)

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