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US prosecutor admits error, hopes for 2d chance

REPEATED LAPSES Judge Mark L. Wolf said that he perceived a pattern of withholding evidence by the US attorney's office. REPEATED LAPSES
Judge Mark L. Wolf said that he perceived a pattern of withholding evidence by the US attorney's office.
By Jonathan Saltzman
Globe Staff / May 13, 2009
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A federal prosecutor acknowledged yesterday that she withheld evidence that could have helped clear a defendant in a gun case but said it was an inadvertent mistake and implored the chief judge of the US District Court in Massachusetts not to impose sanctions that could derail her career.

"It is my mistake. . . . It rests on my shoulders," a composed Suzanne Sullivan, assistant US attorney, told Judge Mark L. Wolf in a dramatic hearing in Boston that lasted more than two hours. "I also ask the court to give me the opportunity to rebuild my reputation."

But Wolf said he was considering several sanctions because he was so appalled by Sullivan's lapse and by what he characterized as a pattern of prosecutors in the US attorney's office withholding evidence. The potential sanctions ranged from fining her - which prosecutors said no federal judge in the country has done for a lapse of Sullivan's type - to an order that she and perhaps all 90 criminal prosecutors in the office undergo additional training about their constitutional duty to share such evidence with defendants.

"It's unpardonable, and if I don't find it deliberate, I find it's at least ignorance and reckless disregard," he said at the hearing at which he also criticized as ineffectual the Justice Department's Office of Professional Responsibility.

Wolf wrote last month to Eric H. Holder Jr., the US attorney general, asking him to crack down on prosecutors who fail to disclose information that could clear defendants, and repeated his past assessment that the Boston office has a "dismal history of intentional and inadvertent violations." Similar entreaties he made to Holder's predecessors in recent years achieved little, Wolf wrote.

Sullivan failed to disclose that a Boston police officer's testimony at a pretrial hearing last year about the July 2007 arrest contradicted what the officer had repeatedly told her beforehand. Wolf discovered the inconsistencies at the hearing after reviewing Sullivan's notes of her interviews with the officer, who the judge concluded testified falsely. Wolf made the discovery before the lapse could prejudice the defendant's case.

Joseph F. Savage Jr., a private defense lawyer in Boston who represented Sullivan yesterday, repeatedly gestured toward his client and told Wolf that a sanction would mean "annihilation" of her career.

Such a sanction, said legal specialists, could expose her to further disciplinary action by the state Board of Bar Overseers and the Justice Department.

Savage said Sullivan was a respected, diligent prosecutor who should not be blamed for earlier lapses by the office. She was a prosecutor in Plymouth County for 11 years before joining the US attorney's office in 2006.

Wolf also grilled Acting US Attorney Michael K. Loucks, who said Sullivan made a "baffling" mistake but was determined to not repeat it.

The dispute stems from Sullivan's prosecution of a relatively routine gun arrest. On the night of July 3, 2007, Officer Rance Cooley and other officers went to Middleton Street in Dorchester because of a complaint about youths smoking marijuana and playing loud music.

Cooley testified at a key pretrial hearing in October that he made eye contact with a man on a bicycle and that the man turned and rode away, according to a Jan. 21 ruling by Wolf. This was suspicious, Cooley said, because he recognized him as Darwin E. Jones and had never known Jones to avoid him.

Officers chased Jones and tackled him and found a gun in his pocket, authorities said. He was charged with being a felon in possession of a firearm, which carries a minimum mandatory sentence of 15 years.

However, the report that Cooley wrote immediately after the arrest said nothing about him recognizing Jones on the bicycle, according to Wolf's ruling; it said Jones was identified later, after the officers tackled him. That was what Cooley repeatedly told Sullivan in the months after the arrest, Wolf wrote.

Prosecutors later dismissed Jones's gun charges, according to his lawyer, John F. Palmer of Boston. Palmer said recently that he and prosecutors have reached a tentative plea deal on drug charges.

Saltzman can be reached at jsaltzman@globe.com

Judge Mark L. Wolf said that he perceived a pattern of withholding evidence by the US attorney's office.

REPEATED LAPSES