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State v. Diprete5/1/1998
and case dismissal. In doing so, I believe that the majority misconceives and mischaracterizes the flagrant and intentional misconduct of the state's prosecutors and fails to recognize the substantial prejudice to the defendants that the prosecutors' misconduct caused.
If the evidence of the iniquitous prosecutorial chicanery present in this case record, coupled with its resulting prejudice that has deprived the defendants of their right not only to a speedy but to a fair trial as well is, as the majority today holds, insufficient to warrant the discretionary sanction imposition of either dismissal or witness exclusion, then no case facts reasonably imaginable will ever satisfy the majority of the availability and propriety of those sanctions in the future. What is particularly troubling to me in the majority's is not only that it abandons what has been our long-standing rule of appellate review applied in every case in which we have been called upon to review a trial Justice's discretionary imposition of Rule 16(i) remedial sanctions but it also effectively reduces the supervisory role of a Superior Court trial Justice in Rule 16 discovery proceedings to that of a casual spectator at a sporting event. I believe that what the majority does today mortally wounds Rule 16 and serves only to encourage rather than to discourage similar prosecutorial misconduct in the future. I refuse to be one of the Rule's pallbearers. Accordingly I must respectfully Dissent and offer in support of my position my reasons for doing so.
I
Prosecutorial Misconduct -- Rule 16(i) Sanctions
Some four years ago, on March 24, 1994, a state grand jury returned an indictment against the defendants in this case, alleging, inter alia, that both had conspired between 1985 and 1990 to engage in criminal bribery and extortion to acquire money and election campaign contributions, using as inducement the awarding of state leases and contracts. They were arraigned on that indictment in April 1994 and pled not guilty.
The state's charges, some dating as far back as thirteen years, to 1985, appear to be grounded upon the recollections of four expected key state trial witnesses, Rodney M. Brusini (Brusini), Frank N. Zaino (Zaino), Michael W. Piccoli (Piccoli), and Mathias J. Santos (Santos). The first three named are in fact unindicted alleged coconspirators with the defendants.
Defense counsel, in order to adequately prepare for trial and to effectively confront their clients' accusers at trial, attempted, commencing on June 6, 1994, first by agreement with prosecutors assigned to the case and, next, through Rule 16 discovery proceedings, to ascertain whether the four key state's witnesses had been involved in any previous criminal activities and whether they had been courted by the state with any promises of absolution, immunity, or leniency in return for their cooperation and testimony. The state's response to those simple and direct discovery requests evolved unfortunately into what turned out to be a prosecutorial game of "hide-and-seek" that played out over a two-year period. In the course of playing out that game, certain of the state's prosecutors not only violated their agreement made with defense counsel to furnish that specific pretrial discovery witness information but also repeatedly violated pretrial discovery orders entered by the Court providing for disclosure of that requested witness information. Apparently not content with simply violating their Rule 16 discovery obligations and the trial Justice's court orders, the case record further reveals that certain prosecutors, motivated by what appears as unbridled prosecutorial ferocity, then actually lied both to defen
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