Prosecutorial Misconduct In The Prosecution Of Former Governor Ed DiPrete

The following is taken from Judge Bourcier's dissenting opinion regarding the reinstatement of charges against the DiPretes [Case 97-167-C.A. (P1/94-1000 A&B)]. I have taken the liberty of adding some emphasis regarding the prosecutorial misconduct.

Prosecutorial Misconduct
Rule 16(i) Sanctions

Some four years ago, on March 24, 1994, a state grand jury returned an indictment against the defendants in this case, alleging, inter alia, that both had conspired between 1985 and 1990 to engage in criminal bribery and extortion to acquire money and election campaign contributions, using as inducement the awarding of state leases and contracts. They were arraigned on that indictment in April 1994 and pled not guilty.

The state's charges, some dating as far back as thirteen years, to 1985, appear to be grounded upon the recollections of four expected key state trial witnesses, Rodney M. Brusini (Brusini), Frank N. Zaino (Zaino), Michael W. Piccoli (Piccoli), and Mathias J. Santos (Santos). The first three named are in fact unindicted alleged co-conspirators with the defendants.

Defense counsel, in order to adequately prepare for trial and to effectively confront their clients' accusers at trial, attempted, commencing on June 6, 1994, first by agreement with prosecutors assigned to the case and, next, through Rule 16 discovery proceedings, to ascertain whether the four key state's witnesses had been involved in any previous criminal activities and whether they had been courted by the state with any promises of absolution, immunity, or leniency in return for their cooperation and testimony.

The state's response to those simple and direct discovery requests evolved unfortunately into what turned out to be a prosecutorial game of "hide-and-seek" that played out over a two-year period. In the course of playing out that game, certain of the state's prosecutors not only violated their agreement made with defense counsel to furnish that specific pretrial discovery witness information but also repeatedly violated pretrial discovery orders entered by the Court providing for disclosure of that requested witness information.

Apparently not content with simply violating their Rule 16 discovery obligations and the trial justice's court orders, the case record further reveals that certain prosecutors, motivated by what appears as unbridled prosecutorial ferocity, then actually lied both to defense counsel and to the trial justice in a frantic attempt to conceal not only their ongoing discovery transgressions but also their own active complicity with two of the state's key witnesses, Brusini and Zaino, in their attempt to cover up and conceal the previous commission by those two witnesses of crimes such as perjury, state income tax evasion, and the filing of fraudulent documents with the Rhode Island Family Court. That was done so that the state's prosecutors would then be able to present Brusini and Zaino at trial as "clean" witnesses.

It was not until July 29, 1996, more than two years after the defendants' arraignment, that the iniquitous prosecutorial pretrial discovery chicanery [use of tricks, cunning] began to unravel and surface. On that date the state's prosecutors, after having been prodded by defense counsel and the trial justice, informed the trial justice that they suddenly found some thirty additional boxes of materials that could be relevant to defense counsel's discovery requests but that ten of those boxes contained what the prosecutors asserted were privileged materials not subject to discovery.

The trial justice, by this time understandably skeptical of the prosecutors' assertions, ordered them to produce the ten boxes for his in camera inspection. The prosecutors quickly recanted their privilege assertion and instead offered defense counsel the opportunity to inspect and review the boxed materials, consisting of some 68,000 pages, at the offices of the Department of the Attorney General. When defense counsel looked into the ten boxes, they found there discovery information that had been earlier represented to them, as well as to the trial justice, as either not existing or as having been already disclosed.

Defense counsel thereafter on August 26, 1996, convinced that they and the defendants had been the victims of egregious prosecutorial misconduct, filed motions with the trial justice, seeking imposition of Rule 16(i) discovery violation sanctions.

Hearings on the defendants' motions for sanctions commenced on October 21, 1996, and extended over a period of some thirty-two hearing days. Following that extended hearing, the learned and experienced trial justice on March 11, 1997, filed a comprehensive thirty-eight-page decision in which he found that various of the state's prosecutors assigned to prosecute the state's indictment had, over a two-year period of time, deliberately concealed crucial requested pretrial discovery materials that were essential to defense counsel's ability to adequately prepare for trial. He additionally found that during that two-year time period certain of the prosecutors had not been truthful in their dealings with defense counsel, as well as with the court, apparently attempting to conceal the fact that they had withheld requested Rule 16 discovery information from the defendants.

The trial justice additionally found that various prosecutors had intentionally concealed from defense counsel and the court known evidence of past criminal conduct on the part of their four key witnesses as well as evidence of immunity and leniency deals that had been made with those witnesses in return for their cooperation and testimony.

He also found that certain of the state's prosecutors had actually assisted and participated with two of its witnesses (Brusini and Zaino) in a scheme to cover up past criminal conduct on the part of those witnesses so as to be able to present them at trial as "clean" witnesses.

The trial justice then aptly noted that the prosecutors who had actually assisted in the crime cover-up scheme had conceivably not only violated our Rules of Professional Conduct but also engaged in conduct that could be deemed criminal as well and had lied to both defense counsel and the court in an attempt to conceal their improper conduct with those witnesses. I find significant, particularly in light of the Rule 16(i) discovery violation sanction concerned in this appeal, the trial justice's clear and explicit review of the extent and duration of the egregious prosecutorial misconduct that was unearthed and exposed at the sanction hearing and his conclusion therefrom that defendants had been substantively prejudiced by that flagrant prosecutorial misconduct. That conclusion was reached following diligent adherence to the sanction imposition guidelines set out by this Court in State v. Coelho, 454 A.2d 241, 244-45 (R.I. 1982).

In Coelho this Court noted that a trial justice, when determining the appropriate remedy for a violation of Rule 16, must consider

"(1) the reason for nondisclosure, (2) the extent of prejudice to the opposing party, (3) the feasibility of rectifying that prejudice by a continuance, and (4) any other relevant factors." Id. at 245.

In this case the trial justice diligently considered each of these factors and carefully reviewed all of the contradictory reasons put forth by the state's prosecutors for both their failure to disclose the requisite exculpatory materials and their continued denial of any wrongdoing on their own part. The trial justice considered, noted, and outlined in detail the nature and extent of the prejudice caused to the defendants by the gravity and the duration of the prosecutors' misconduct and concluded that neither a mere trial continuance nor the exclusion of the four key state's witnesses' testimony would serve as an adequate remedy.

After painstaking consideration of the hearing evidence and the case travel, the trial justice exercised his discretion and determined that the only appropriate Rule 16(i) sanction that could fairly serve to remedy the prosecutors' misconduct and the resulting prejudice to the defendants was case dismissal. That was clearly his discretionary judgment call to make, and while the majority may disagree with that choice of sanction, mere disagreement cannot translate itself into a holding that the trial justice clearly abused his discretion. This Court should not second-guess the trial justice on what is a discretionary judgment call simply because the majority might have made a different call. Unless this Court can say that the trial justice clearly abused his discretion, we should not disturb his action.

The case dismissal sanction chosen by the trial justice was selected by him only after he had meticulously complied with every directive that we have made applicable to imposition of Rule 16(i) sanctions. As Coelho instructed, the trial justice considered what was "right and equitable under all of the circumstances and the law." Initially he addressed what would be right and equitable under all of the factual circumstances disclosed from the case record and the recently concluded thirty-two day sanction motion hearing.

The hearing evidence disclosed and presented to him a fact scenario that clearly demonstrated a heretofore unparalleled prosecutorial ferocity that appeared unwaveringly hellbent on securing a conviction in a high-profile criminal prosecution reeking of political ramification. That uncontrolled zealousness and prosecutorial misconduct was especially disturbing to the trial justice because it surfaced in the offices of the state's Attorney General, the very office entrusted with protecting the constitutional rights of the citizens of this state.

As Justice Sutherland eloquently noted in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the prosecutor

"is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id. at 88, 55 S.Ct. at 633, 79 L.Ed. at 1321.

That special duty of a prosecutor is embodied in our Supreme Court Rules of Professional Conduct, Article V, Rule 3.8. Among the special responsibilities of a prosecutor specifically listed in Rule 3.8(d) is that

"[t]he prosecutor in a criminal case shall * * * make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused * * *."

In this case the prosecutors utterly failed to abide by that rule of professional conduct. Accordingly the trial justice in this case was confronted not only by dire facts of prosecutorial misconduct but also by his own sworn obligation to preserve and protect the integrity and credibility of our justice system and the Superior Court Rules of Criminal Procedure, adopted by this Court to "govern all criminal proceedings in this state." Super.R.Crim.P. 59.

He commendably recognized that he had before him in this case a societal concern that transcended the apparent prosecutorial self-interest of the state's prosecutors, and he responded to that concern by properly noting:

"[T]he manner and magnitude of the prosecutorial misconduct * * * in this case has not only resulted in substantial prejudice to the defendants but has the effect of eroding confidence in the criminal justice system. Of equal concern is that the situation also raises the alarming specter that the system works only if an accused has the financial resources to make independent investigation prior to trial to ferret out misconduct to ensure due process. At the very least, the court would be justified in precluding the testimony of the witnesses for the State (Brusini, Zaino, Piccoli, and Santos) but that remedy does not effectively respond to the evidence. It does nothing to impress upon the prosecution that it cannot be allowed to benefit from having acted in a manner that is less than constitutional and ethical in the pursuit of convictions."

The trial justice thereafter addressed the second factor consideration included in the Coelho directive, namely, his obligation to do what is right and equitable under the law. He properly noted, as I do, the intended purpose of Rule 16 in criminal proceedings in this state. Rule 16 of the Superior Court Rules of Criminal Procedure became effective on September 1, 1972, and, as amended in 1974, had for its intended purpose

"to provide for the fullest, reciprocal discovery in criminal cases in the Superior Court * * *."

Rule 16 Reporter's Notes to 1974 Amendment. In State v. Garcia, 643 A.2d 180 (R.I. 1994), this Court said that the purpose of Rule 16 was to

"ensure that both parties receive the fullest possible presentation of the facts prior to trial." 643 A.2d at 186 (quoting State v. Concannon, 457 A.2d 1350, 1353 (R.I. 1983)).

We acknowledged later in State v. Evans, 668 A.2d 1256, 1259 (R.I. 1996), that our Rule 16 was among the most liberal discovery mechanisms in this country and that its intention was to hopefully eliminate unfair surprise and procedural prejudice at trial. See also State v. Ramos, 553 A.2d 1059 (R.I. 1989).

In Evans we also noted that Rule 16 was intended to ensure that every defendant through pretrial discovery would be able to adequately prepare for trial. 688 A.2d at 1259 (citing State v. Scurry, 636 A.2d 719, 725 (R.I. 1994)). In order to ensure that an accused who is by law presumed to be innocent was given every opportunity to prove that innocence, we have held that whenever a defendant requests pretrial discovery, the state's prosecutors are obligated to respond to that request in good faith, fully and candidly, and must disclose all known relevant information encompassed within the defendant's discovery request. See State v. LaChapelle, 638 A.2d 525, 530 (R.I. 1994); State v. Darcy, 442 A.2d 900, 902-03 (R.I. 1982).

Any failure on the part of the state's prosecutors to respond candidly to their Rule 16 obligations serves to undermine the judicial process. Ramos, 553 A.2d at 1067. In particular, and pertinent to the prosecutorial misconduct in this case, we have consistently condemned untimely disclosure of requested pretrial discovery information, Scurry, 636 A.2d at 725, and have said that when defendants are misled into proceeding to trial unprepared, the basic concepts of due process are violated and

"[t]he courts cannot allow the integrity of the criminal system to be undermined by the overzealous prosecutor." In re Ouimette, 115 R.I. 169, 175, 342 A.2d 250, 253 (1975).

The majority questions the trial justice's reference to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in assessing the substantial and irreparable pretrial prejudice that he found to have resulted to the defendants as a result of the prosecutors' flagrant disregard of their Rule 16 pretrial discovery obligations. The majority states that "the Brady principles have no relevance to pretrial discovery." I disagree with that restricted keyhole view of Brady. In United States v. Polisi, 416 F.2d 573 (2d Cir. 1969), that court aptly noted:

"The importance of Brady, then, is its holding that the concept out of which the constitutional dimension arises in these cases is prejudice to the defendant measured by the effect of the suppression upon defendant's preparation for trial, rather than its effect upon the jury's verdict." Id. at 577.

Several years later our First Circuit's opinion in United States v. Donatelli, 484 F.2d 505 (1st Cir. 1973), reflected that same Brady interpretation. It noted that,

"[a] defendant in a criminal trial has the right to a fair trial, and as one aspect of this right he must be supplied by the prosecution all evidence which may be materially favorable to him, [citing Brady], including evidence which would have a material effect upon trial preparation." Id. at 507-08.

Indeed one need only refer to what Justice Shea said in State v. Coelho, supra, to challenge the majority's narrow keyhole interpretation of Brady in its application to Rule 16 pretrial discovery proceedings. In Coelho, writing for a unanimous court, he correctly noted that the true nature of the prejudice that Rule 16 sought to remedy was

"to ferret out procedural, rather than substantive, prejudice." 454 A.2d at 245. He then added, "In determining whether this type of prejudice exists in a given case, the trial justice must determine whether the discovery violation prevented the defendant from properly preparing for trial." Id. See also The Prosecutor's Constitutional Duty to Reveal Evidence to the Defendant, 74 Yale L.J. 136 (1964).

I believe that the trial justice in this case properly referred to Brady in determining whether the prosecution's violation of its pretrial discovery obligations so prejudiced the defendants that any conviction following would be inherently infected by that prejudice and predestined for reversal. Any trial thereafter would be nothing but a costly, time-consuming judicial charade at the expense of the taxpayers and would serve only to heap additional prejudice upon the defendants.

The majority responds to the trial justice's conclusion that the defendants could never receive a fair trial that could satisfy constitutional standards by claiming that his dismissal interfered "with the public interest in having the guilty brought to book." That noble pronouncement overlooks first the fact that these defendants are still presumed by law to be innocent and, secondly, the majority's statement appears to be strangely reminiscent of the chant heard from spectators in the ancient Roman Coliseum just before the lions were let loose.

Certainly not to be overlooked here is the undeniable fact that the defendants in this case are entitled, by both our State and our Federal Constitutions, not only to a fair trial on the charges made against them but also to a speedy trial. Their right to a speedy trial is constitutionally guaranteed because all reasonable judicial authority clearly recognizes that human memories are apt to dim, vary, and/or change with time and can thus adversely impact upon a defendant's right to a fair trial. Certainly no trial can ever be a search for the truth if the trial is delayed to the point where the trial witnesses are unable to accurately recall what the truth is.

In that same vein we should not overlook the fact that the defendants here are facing charges some of which date back thirteen years to 1985, and the state, in order to sustain those charges, must rely in great part upon the recollections of its four key witnesses. Defense counsel, recognizing that their clients' rights of confrontation connote something more than simply their right to face those four witnesses, diligently attempted for more than a two-year period of precious pretrial preparation time to learn from the state through pretrial discovery whether those four witnesses had any criminal conduct in their backgrounds and whether the state had made any deals with them in return for their cooperation and testimony. That requested and later court-ordered information was certainly necessary, if not crucial, for defense counsel to have prior to trial in order to permit them not only to plan trial strategy but also, and perhaps more importantly, to enable defense counsel to adequately prepare for their cross-examination of those four state's witnesses at trial.

This Court has long recognized that a defendant's right encompassed within the confrontation clause, while fundamentally a trial right and not a constitutionally compelled rule of pretrial discovery, nonetheless should not restrict a defendant's ability to adequately prepare for the cross-examination of the state's trial witnesses. In re Douglas L., 625 A.2d 1357, 1360 (R.I. 1993)(citing Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965)). Indeed two of the majority justices have recently recognized that very fact in their dissent in State v. Brown, No. 95-648-C.A., slip op. at 34 (R.I., filed March 13, 1998), in noting that

"the confrontation clause is fundamentally a trial right and should not be confused with a `constitutionally compelled rule of pretrial discovery.' * * * Yet the principle will compel a state to produce material when the failure to do so would improperly restrict the types of questions defense counsel may ask during cross-examination. State v. Kelly, 554 A.2d 632, 635 (R.I. 1989)." (Emphasis added.) See also State v. Myers, 115 R.I. 583, 588, 350 A.2d 611, 613-14 (1976).

We have long noted that procedural prejudice is inflicted upon a defendant when his or her defense counsel must proceed to trial unprepared because of the state's noncompliance with its Rule 16 obligations. State v. Brisson, 619 A.2d 1099, 1103 (R.I. 1993). In State v. DeAngelis, 658 A.2d 7 (R.I. 1995), we noted that the

"inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. at 12.

The trial justice additionally noted that the defendants had been substantively prejudiced by the state's repeated and continuous refusal to comply with the trial court's discovery orders. The state's misconduct ultimately necessitated a lengthy thirty-two-day hearing during which defense counsel were required to establish the exact nature and scope of the state's wrongdoing in order to protect their clients' right to a fair trial.

During the course of that expensive and protracted hearing on remedial sanctions, defense counsel were required to satisfy the trial justice of the materiality and relevance of the pretrial information that had been withheld by the state. In order to meet that burden, defense counsel were forced to reveal to the state's prosecutors virtually their entire trial strategy. Further, the prosecution gained the unfair advantage of previewing firsthand defense counsel's planned cross-examination of the state's witnesses. The majority places the blame for this prejudice at the feet of defense counsel, saying it resulted from defense counsels' "voluntary" action in seeking remedial sanctions in the first instance.

Under that theory a defendant's attorney, believing that the state is withholding material exculpatory evidence, would have to choose between filing a motion to compel and requesting remedial sanctions or proceeding to trial woefully unprepared. No competent attorney would ever accept such a Hobson's choice, and there is no rule of criminal procedure that requires such a choice, despite the majority's unsupported statement that pretrial strategy is not beyond disclosure. See Super.R.Crim.P. 16(d).

A criminal defense attorney's mental impressions as to how evidence relates to issues and defenses constitute opinion work product and are especially protected from disclosure by the work product privilege. United States v. Horn, 811 F.Supp. 739, 746 (D.N.H. 1992). In this case, I believe that the hearing on remedial sanctions, necessitated by the actions of the prosecution, permitted the state to intrude upon this privileged area and, therefore, significantly prejudiced the defendants.

Indeed I find it unusual that the majority would in effect seek to punish defense counsel for enforcing an order of the state's trial court. That, however, is precisely what the majority does when it blames defense counsel for the prejudice that resulted from the prosecution's illegal and unethical actions. Would the majority fault the unfortunate victim in a medical malpractice case for having elected to seek medical treatment or a bank for electing to have funds available on its premises that the robber could then steal?

What I believe the learned trial justice found most disturbing and damaging of all, however, was the very real possibility that even as of the date of his decision, the defendants may not then have yet received all of the exculpatory materials that had been requested and to which they were entitled. The trial justice actually found that defense counsel at that late time could still not be assured that the prosecution had laid all its cards on the table and was not persuaded by the state's protestations to the contrary because those same protestations had in the past, without exception, been untruthful. The defendants here should not be compelled to walk blindfolded into battle and risk yet another ambush by the prosecution.

I referred earlier to the case record disclosing that for a period in excess of two and one-half years the state's prosecutors had played "hide-and-seek" with the defendants' Rule 16 discovery requests and as well with the trial justice's pretrial discovery orders. In support of that assertion, I submit now as examples just two of the nefarious machinations by various members of the state's prosecutorial team with key state's trial witnesses, Rodney M. Brusini and Frank N. Zaino.

Brusini had testified in March 1992 before a grand jury investigating Joseph Mollicone, Jr. (Mollicone), of Heritage Loan and Investment Company fame. In that grand jury proceeding he testified under oath that he had no ownership interest in a property known as the Rosemac Building located in Providence. At the time Brusini so testified, the state's prosecutors were then in possession of clear evidence establishing that Brusini in fact co-owned the building with Mollicone.

In August 1992, some five months later, and while the state was attempting to build its case of criminal wrongdoing against the DiPretes, the state, knowing full well that Brusini could be a key witness against the DiPretes, presented evidence to a new grand jury in an effort to indict Brusini for his past-known perjury. That grand jury proceeding was suddenly halted, but only after Brusini agreed to testify for the prosecution against the defendants. In exchange, the state agreed not to further pursue the perjury charges arising from Brusini's prior grand jury testimony regarding his ownership interest in the Rosemac Building. That deal is evidenced by the sworn testimony of both former and present members of the prosecution team as well as that of Brusini's own attorney.

Despite those known facts the state continued to repeatedly represent to both the court and to defense counsel that it had no knowledge of Brusini's having ever committed perjury or of any agreement made by the state with Brusini not to pursue perjury charges against him in exchange for his testimony against the defendants. Even when specifically ordered by the trial justice to produce all of the state's knowledge of Brusini's criminal conduct, the state surreptitiously and cleverly directed the court and defense counsel only to the formal immunity petition given to Brusini. Later, when again specifically ordered by the court to produce all promises, rewards, or inducements offered to Brusini, the state once again cleverly directed the court and the defendants to only Brusini's immunity petition. Brusini's immunity petition, however, contained no mention of Brusini's perjured testimony before the grand jury regarding his ownership interest in the Rosemac Building.

The state contends that no misconduct occurred in the withholding of this classically exculpatory and witness impeaching evidence from the defendants and that no prejudice resulted to them as a result of the prosecutors' failure to reveal Brusini's perjury and the resulting nonprosecution agreement that the state had entered into with Brusini. In support of those arguments, the state has advanced several contradictory and incredible assertions.

First, the state asserts that the defendants should have been able to deduce that Brusini committed perjury in front of a grand jury from defense counsel's earlier review of some 600 boxes filled with materials that the state originally had provided to the defendants. The simple response to that assertion is that the trial justice's pretrial discovery order did not provide for the delivery of an avalanche of documents. It specifically directed that the state furnish defense counsel with its specific knowledge of Brusini's criminal conduct. The state's knowledge of Brusini's criminal conduct was not flagged or otherwise clearly identified in the 600 boxes of materials. Rather the state's knowledge was in great part founded upon specific and particular documents contained therein. Defense counsel were left, however, to search for and hopefully find what they had specifically requested. What the state did here in responding to defense counsel's specific discovery requests, we condemned in State v. Verlaque, 465 A.2d 207, 214 (R.I. 1983).

Next the state denied the existence of any agreement with Brusini to forgo prosecution of Brusini for perjury in exchange for his testimony. That assertion, however, was flatly contradicted by J. Richard Ratcliffe (Ratcliffe), a former chief prosecutor on the prosecution team when the deal was made. The state's prosecutors attempted to neutralize Ratcliffe's testimony by contending that the arrangement made between the state and Brusini was merely an "understanding" and not a "deal." This type of semantic obfuscation was typical of the prosecution's posture throughout the pretrial discovery proceedings. The irrefutable fact that surfaces is that the state had made a deal with a known perjurer in order to enlist his aid in convicting the defendants, and the prosecutors then ignored the trial justice's order that specifically directed them to inform the defendants about witness inducements of this type and nature.

Finally, the state's prosecutors went as far as to represent to the trial judge and to defense counsel that there was no chargeable case against Brusini for his perjured grand jury testimony. That argument was perhaps the least plausible and the most ludicrous. In fact the state's very own documents indicated that it knew of at least ten separate individuals, all identified by the state prosecution team as reliable witnesses, who were capable of establishing Brusini's ownership interest in the Rosemac Building. Clearly the state knew that Brusini had committed perjury, or it would never have presented that evidence to a grand jury in August of 1992 in an attempt to indict Brusini for that very crime. To reason otherwise, the prosecutors would have to admit that they had abused the grand jury process in order to force Brusini to cooperate in the prosecution of the defendants. In either case one fact becomes clear and that is that the prosecutors were overly zealous in their attempt to ensure that the defendants would not be able to adequately prepare for trial and that as a result their prosecution would be successful.

As to Frank Zaino, another unindicted co-conspirator, it was discovered almost on the eve of scheduled trial that the state's prosecution team had actually assisted Zaino in falsifying tax returns and filing false documents with the Family Court in order to amend and conceal Zaino's previous false filings in an effort to present a "clean" or unimpeachable witness to the jury at the defendants' trial.

The prosecution was fully aware that between 1988 and 1990, Zaino had failed to report fraudulently obtained income on his tax returns. In order to correct that blemish and present a "clean" witness to the jury at the defendants' trial, the state actually proceeded to assist Zaino in preparing amended tax returns. The amended tax return filed for tax year 1991 falsely reported income that was earned in previous years. This error was known to the state, but instead of dutifully enforcing the law, certain members of the Attorney General's office chose to assist Zaino in filing these false tax returns with the Internal Revenue Service and the Rhode Island Family Court with regard to his divorce proceeding in that Court.

Despite the state's firsthand knowledge of Zaino's tax fraud and the state's decision to forgo any prosecution of Zaino in exchange for his cooperation, the state deliberately failed to produce any information to the defendants regarding Zaino's criminal conduct and deal. Instead the state once again pointed to the immense amount of material contained in the approximately 600 boxes already provided to the defendants and attempted to convince both the court and defense counsel that a competent and hard-working advocate would have been able to deduce that Zaino had lied on his tax returns. Once again the state ignored what this Court said it was obligated to do in Verlaque, 465 A.2d at 214.

The state's position that all of the materials withheld from the defendants were somehow actually present in the 600 boxes of materials already provided to defense counsel was later discovered to be not only factually incorrect and false but also totally unresponsive to the trial justice's previous discovery orders. Those orders had specifically directed the prosecution to reveal to defense counsel the state's knowledge of all criminal conduct on the part of any of the unindicted co-conspirators whom the state planned to call as witnesses at the defendants' trial. The court's orders were repeatedly and deliberately ignored by the state.

In light of the baneful prosecutorial misconduct found in this case and the resulting substantial and irreparable prejudice inflicted upon the defendants, I am satisfied beyond question that the trial justice, acting pursuant to the authority granted him by Rule 16(i) of the Rules of Criminal Procedure, had not only clear authority but as well, ample justification to select case dismissal as the appropriate Rule 16(i) discovery violation remedial sanction.

The state in its appeal claims that it did no wrong. That of course is the very same claim that comes from every prisoner now confined in the Adult Correctional Institutions. The Court of Appeals for the Ninth Circuit addressed a similar contention in United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993); it stated,

"What we find most troubling about this case is not the [prosecutor's] initial transgression, but that he seemed to be totally unaware he'd done anything at all wrong, and that there was no one in the [prosecutor's] office to set him straight. Nor does the government's considered response, filed after we pointed out the problem, inspire our confidence that this kind of thing won't happen again." Id. at 1324. "In a situation like this, the judiciary -- especially the court before which the primary misbehavior took place -- may exercise its supervisory power to make it clear that the misconduct was serious, that the government's unwillingness to own up to it was more serious still and that steps must be taken to avoid a recurrence of this chain of events." Id. at 1325.

In this case the state's failure to even acknowledge any wrongdoing on its part lends further support for the trial justice's choice of remedial sanction.

I fear that if on the egregious facts present in this case and the findings of fact made by the trial justice witness exclusion and case dismissal sanctions are not authorized, the message the majority's holding sends out to all prosecutors in this state is that they can continue hereafter to ignore Rule 16 pretrial discovery obligations, violate court discovery orders, and play "hide-and-seek" with defense counsel. If not caught, no one will ever know. If caught, the only remedial Rule 16(i) penalty that can be imposed, according to the majority's holding, will be a case continuance -- which in effect simply means that the prosecutor's game clock will have to be rewound and reset and the game replayed.

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