Hiding the facts

Discovery violations have made evidence-gathering a shell game

Pittsburgh Post-Gazette/November 24, 1998
By Bill Moushey

Galen Kelly’s job had more risks than most. Parents hired him to rescue their children from religious cults.

In 1992, Kelly, thinking he had found the daughter of a couple who had hired him, grabbed a young woman off a Washington, D.C., street and returned her to the family. But he had grabbed the wrong woman.

Federal agents charged the New York-based Kelly with kidnapping, and he went on trial in Virginia.

He routinely faced risks in his job — attacks by cult members who felt threatened were not uncommon. But they were nothing compared to those he would face trying to get a fair trial in federal court.

Throughout the proceeding, Kelly’s lawyers requested that Assistant U.S. Attorney Lawrence Leiser of the Eastern District of Virginia turn over discovery material.

Discovery material includes any evidence that might help prove a defendant innocent. It also includes anything that might show the biases of a witness against a defendant or background information that might lead jurors to question a witness’s credibility.

Under federal law, defense attorneys are entitled to ask for discovery information, and prosecutors must provide it.

Kelly and his attorney believed the woman Kelly was accused of kidnapping, Debra Dobkowski, was a cult member who had set Kelly up by pretending to be the woman she knew he was after.

Dobkowski testified she was not a member of the cult and that she’d had no brushes with the law. Based largely on her statements, Kelly was convicted and sentenced to seven years in prison.

Dobkowski, however, had lied.

She was one of the cult’s leaders, and when she testified, she was being investigated for criminal mail fraud and money laundering.

Leiser knew about her lies, yet said nothing.

It was three years before an appeals court overturned Kelly’s conviction. Dobkowki’s credibility was key to the government’s case, the court stated, but her testimony was "false in numerous respects and the government at least should have known it was false."

Leiser, the respected former head of the National Association of Assistant U.S. Attorneys, was suspended from his job, though that action was later overturned following an internal Justice Department appeal.

Even the short-lived suspension of Leiser, then 49, was unusual. What Leiser did "was a bad judgment call, but one that was not indigenous to Larry Leiser," Kelly’s attorney, Robert Stanley Powell, told reporters. "A lot of federal prosecutors do what he did."

A two-year investigation by the Post-Gazette found Powell to be exactly right.

Its review of 1,500 allegations of prosecutorial misconduct over the past 10 years found hundreds of examples of discovery violations in which prosecutors intentionally concealed evidence that might have helped prove a defendant innocent or a witness against him suspect.

But most cases reviewed by the Post-Gazette shared a key difference from the Leiser case: Prosecutors who violated discovery rules were seldom punished. Many violated discovery rules over and over again.