While the Fourth Circuit affirmed Bartko’s convictions and his 272-month sentence, its opinion takes a turn against the government in its discussion of the motions for a new trial, dissecting the discovery practices of the Eastern District of North Carolina’s United States Attorney’s Office, focusing its scrutiny on their repeated "mistakes" in this and other cases. Here, the Fourth Circuit reviewed three alleged constitutional violations - two examples of withholding discoverable evidence, and one instance of leaving uncorrected a witness’s false testimony.
From Judge Floyd:
What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.
Some of the other examples cited by the Fourth Circuit of discovery abuses include the sending of over 1,000 pages of discovery to a defendant in the week prior to trial, despite a court order to provide the discovery at least 14 days prior to trial, and in that same case, sending a fax to defense counsel without confirmation on the Saturday before trial started the following Monday; failing to disclose to a sexual predator that a victim would testify at the commitment hearing; and, failing to disclose potentially exculpatory grand jury testimony in a felon in possession case, despite requests for the production.
Finally, to ensure that these problems are addressed, the Fourth Circuit sent a copy to the Attorney General as well as the DOJ’s Office of Professional Responsibility. This may not be much consolation to Bartko, however, whose convictions and sentence were undisturbed.
NOTE: This case was decided on August 23, 2013.