CONCORD — A federal judge in New Hampshire has dismissed one criminal case, and a high-profile white-collar case hangs in the balance over questions about misconduct by a top federal prosecutor.
Judges faulted the prosecutor, John S. Davis, twice last June in separate cases at the U.S. District Court in Concord. The cases are still being played out in court filings and judicial orders.
Last June, prosecutors dropped charges on the fourth day of a trial against Concord contractor Nathan Craigue, who was accused of lying to a federal OSHA investigator during an investigation of a worker death at his job site.
Defense lawyers are pressing another judge to dismiss the case against Windham resident Imran Alrai. Last June, a judge ordered a new trial for Alrai, who had been found guilty of bilking his former employer, a Massachusetts United Way, of millions of dollars.
Judge Joseph Laplante found the prosecution violated its duty to turn over evidence favorable to Alrai to his defense attorney.
Last week, the court system issued an order in the Craigue case written by a judge highly critical of the prosecutor.
“The fact that highly similar misconduct has happened at least twice in this United States Attorney’s Office within a short time span raises concerns about the seriousness to which the government takes its constitutional disclosure obligations,” wrote Judge Landya McCafferty, the chief judge of the U.S. District Court in New Hampshire.
Both cases involve Davis, one of the top prosecutors in the office of the U.S. Attorney for New Hampshire. Both cases involve withheld discovery materials that would have been beneficial to the defendant.
Complaints have been filed with the New Hampshire Attorney Discipline office and the Department of Justice’s Office of Professional Responsibility, according to court papers.
The defense lawyer who filed the complaints, Donna Brown, said U.S. Attorney John Farley should undertake an internal investigation to review Davis’ work in other cases.
“This stuff is really hard (for defense attorneys) to uncover,” Brown, who is no longer on the case, said in an interview. “They (the prosecutors) are in the best position to do so.”
In an email, Farley said he has full confidence in the integrity of his prosecutors.
The prosecutor
Davis, the deputy chief of the U.S. Attorney’s criminal prosecution unit, has worked as a federal prosecutor for 25 years and has a history with some high-profile cases.
He was an assistant New Hampshire attorney general in the 1995 murder trial of Carl Laurie, when withheld evidence about police misconduct led to the creation of the state’s infamous Laurie list of problem police officers.
As a federal prosecutor, Davis was involved in the investigation of Richard Jewell, the security guard falsely hounded over allegations that he planted a bomb at Olympic Park in Atlanta in 1996.
Davis also was involved in investigations of al-Qaida mastermind Khalid Sheikh Mohammed, believed to be one of the principal architects of the 9/11 attacks on the U.S. and other acts of terrorism. Mohammed is now a prisoner at the Guantanamo Bay detention camp.
Farley said Davis has had a distinguished career, during which he has tried more than 100 cases.
Davis would not be interviewed for this story.
Farley said both of the New Hampshire cases involved “unique factual situations” and that neither involved prosecutors intentionally withholding evidence. He said they are not an indication of a broader issue with his office’s discovery practices.
“As prosecutors, our mission is not to win at all costs, but to ensure that justice is done. Every prosecutor in my office is fully committed to that mission,” wrote Farley, the temporary U.S. Attorney for New Hampshire.
The judges
McCafferty’s order came in the Craigue case.
McCafferty issued detailed instructions about how to protect the identity of a confidential informant in the case. But she rejected efforts by Davis to keep information secret about the discovery process.
The key point is that Concord police paid the informant, who worked with police on drug cases, $80 to testify to a federal grand jury about Craigue, a fact not disclosed to defense attorneys.
Prosecutors have said they never knew about the police payoff.
But in her order, McCafferty said it was their responsibility to follow through with information about the informant’s relationship with Concord police.
The order was a response to a rare effort by Alrai’s lawyers, who intervened in the Craigue case to keep information about Davis’ actions available. Alrai’s lawyers have cited that information in efforts to dismiss the case.
“While that is a question for the Alrai court, there can be no dispute that it is in the public’s interest to have that decision made with as much publicly-available information as possible,” McCafferty wrote.
In the Alrai case, prosecutors assured Judge Laplante they had turned over all evidence in the case. But further research showed that the prosecution’s expert witness, a forensic CPA, had consulted for the United Way chapter on the Alrai case.
If defense attorneys had known the consultant’s work history, they could have used it to challenge his credibility, Laplante wrote.
Laplante has ordered that the future trial, unlike the first, will be held before a jury. Farley said he wants the trial to go forward, but he would not comment further.
Laplante has yet to rule on the matter.
