The opinion of the court was delivered by: Orlofsky, District Judge:
ADDENDUM TO OPINION OF OCTOBER 28, 1999
On November 10, 1999, the United States filed a motion to amend my opinion in this case, see United States v. Taylor, - F.Supp.2d -, 1999 WL 977389 (D. N.J. Oct. 28, 1999), requesting that I expunge all references made to the negligence of the United States Attorney's Office.
Specifically, the Government objects to my observations that: (1) the Government "failed to pursue a reliable method of identifying the Defendant as the person arrested in this case . . .;" (2) I was "perplexed by the neglect displayed by the United States Attorney's Office in this case;" and (3) "[i]n determining what is `just,' . . . I must consider the plight of the Defendant and what can only be described as the negligence of the United States Attorney's Office in this case." Gov't Mem. in Supp. of Mot. to Amend at 2 (filed Nov. 10, 1999). Incredibly, the Government also objects to my citation of the Supreme Court's opinion in Berger v. United States, 295 U.S. 78 (1935), in which the Court eloquently stated that " . . . while [a United States Attorney] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." " See id. at 3 (quoting Berger, 295 U.S. at 88).
First, it should be made unmistakably clear that Assistant United States Attorney Kevin T. Smith, Esq. was not negligent in any way. Indeed, the negligence discussed in my opinion occurred prior to Mr. Smith's substitution as Government counsel, which occurred on the eve of trial.
Instead, the blameworthy conduct that infected this case almost from its inception lies at the feet of the institution itself, that is, the Office of the United States Attorney. Before the trial, I was required by law to dismiss without prejudice the original Indictment because the Government had carelessly and negligently allowed the Defendant's trial to be delayed fifty-two days beyond the deadline established by the Speedy Trial Act. See Taylor, - F.Supp.2d -, 1999 WL 977389 at *3. *fn1 As I pointed out in my bench opinion of October 15, 1999 dismissing the indictment without prejudice, "[b]y no means should the decision of this Court be interpreted as condoning the behavior of the United States Attorney's Office. Counsel's negligence was sloppy and unprofessional and must not be repeated." October 15, 1999 Bench Opinion at 9. The case was then presented once more to the Grand Jury and a Superseding Indictment was returned. Having overcome that obstacle, at trial the Government was confronted with an unexpected failure of its proofs when the two arresting officers could not identify the Defendant.
Instead of gracefully accepting the futility of its case and moving to dismiss the Superseding Indictment, the Government attempted to circumvent the Federal Rules of Criminal Procedure and well-settled precedent by moving to admit into evidence expert testimony it had never disclosed to Defense Counsel, and rescind an agreement it had made with Defense Counsel regarding the use of a post-arrest statement made by the Defendant.
In light of the undisputed conduct of the Government in this case, in my original Opinion I cited to the following language from Berger v. United States, 295 U.S. 78 (1935):
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Taylor, - F.Supp.2d -, 1999 WL 977389 at *4 (quoting Berger, 295 U.S. at 88).
In its zeal to obtain a conviction in this case, the United States Attorney's Office has lost its way. This Court is painfully aware that as a result of its decision denying the Government's motion, there was insufficient evidence to allow the case to be submitted to the jury for its consideration. Despite this harsh result, it must be remembered and repeated again that the duty of the United States Attorney is not simply to win a case, but to ensure that justice be done. As Justice (then Judge) Cardozo once observed in a similar case in which probative evidence was suppressed, "[t]here is no blinking the consequences. The criminal is to go free because the constable has blundered." People v. Defore, 242 N.Y. 13, 21 (1926).
So too in this case, a blunder has occurred. Whether it was an error in the preparation of a witness, or an error in prosecutorial judgment to continue to prosecute a case at all costs, is of no moment. What matters is that Justice Be Done. It has. Accordingly, the Government's motion to amend this Court's Opinion of October 28, 1999 is denied. The Court will enter an appropriate order.
STEPHEN M. ORLOFSKY United States ...