EDNY Judge Precludes Use of Defendant’s Proffer Statements at Trial Due to “Egregious” Behavior of Detectives

History is full of examples of wrongdoers who incriminate themselves with the records they made of their own misdeeds. Add to that pantheon, Robert Trotta, the too-cunning detective in United States v. Morrison, 2007 WL 2852591 (E.D.N.Y. October 3, 2007), who taped his conversations with Morrison “for his [Trotta’s] own good,” as he transported the incarcerated and represented defendant (without his lawyer) between the U.S. Attorney’s office and the detention center. On the tape, Trotta and his colleague can be heard urging Morrison, then charged with arson and weapons offenses, to accept an 18-year plea offer, saying, variously, that Morrison should be “kissing” the prosecutor’s rear-end right now; his lawyers just “want a new boat;” if his lawyers, including the one who was “that little girl” were being “totally honest” with him, they would advise him to plea; after trial he would face “either life in prison or [the] death penalty;” the jury, disgusted by his wife-beating and employees tattooed with his initials “will crush him;” the government’s case is “quadruple substantiated;” and “in the federal system . . .[p]eople don’t win. They don’t win.”

This time, however, the defendant won – although a victory that hardly matches the gravity of the detective’s interference with Morrison’s right to counsel. Deeming the detectives’ behavior to be at the very least “egregious,” the judge found that the government had denied him effective assistance of counsel under the Sixth Amendment, by driving “a wedge” between him and his then lawyer, and successfully convincing Morrison that Trotta was “the key player in determining his fate.” In fact, as the court noted, Trotta’s insidious usurpation of the role of counsel was so effective, it caused Morrison to abandon trial as a possible option, or at least a bargaining chip, discharge his then counsel, and hire new counsel for the sole purpose of negotiating the best possible disposition of the charges.  In addition, the detectives’ behavior also compromised Morrison’s Fifth Amendment right against self incrimination, since it caused him several months later, as part of the newly adopted “hat in hand” plea bargaining strategy, to enter into a proffer session accompanied by his new lawyer where he made incriminating statements to the prosecutor.  Morrison’s decision to participate in the proffer session, the court held, “was largely driven by his belief, created by the detectives’ comments, that, as a practical matter, he had no choice. As such, his decision was significantly predicated on intimidation and deception promulgated by government agents.”  And if the Sixth and Fifth Amendment violations were not enough, the court found that the proffer session was also a product of a discovery violation, because the government had failed to turn over the tape or Trotta’s machinations to Morrison’s lawyers until twenty months after it had been made.

The appropriate remedy, the judge concluded, quoting (coincidentally) United States v. Morrison, 449 U.S. 361 (1981), is to deny the government “the fruits of its transgression.” Accordingly, he ruled that the government was precluded from using Morrison’s proffer statements “for all purposes” at trial (while leaving open the question of whether the statements could be used to impeach the defendant should he take the stand).  Of course, based on the proffer agreement governing the proffer session where the incriminating statements were made, the government could not have used those statements anyway on their direct case at trial, so the ruling does not amount to a particularly heavy sanction. 

It is hard, however, to see how the judge could have imposed the alternative sanction proposed by the defense – dismissal of the indictment (which was now a superseding indictment charging racketeering murder). As the court noted, again quoting Morrison, that drastic remedy requires “demonstrable prejudice or substantial threat thereof” (emphasis added). If there was any larger prejudice here, it was not of the readily provable kind, at least based on the record presented in the decision. The prejudice could be that abandoning the trial strategy caused Morrison to give up lines of investigation that could have yielded favorable evidence, now lost forever. Or that persistence with the bullish trial strategy could have yielded a better plea offer.  But no prosecutor is going to admit, and it would be very difficult to establish, that a better offer would have been made to Morrison had he stuck with his first lawyer and initial strategy of seriously contemplating a trial.  And yet, by profoundly undermining Morrison’s initial confidence and resolve, Trotta may have delivered an invaluable gift to the government in the plea-bargaining dance: a cowed defendant, “hat in hand,” willing to take the best deal on offer.