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State v. Diprete5/1/1998
Service and the Rhode Island Family Court with regard to his divorce proceeding in that Court.
Despite the state's firsthand knowledge of Zaino's tax fraud and the state's decision to forego any prosecution of Zaino in exchange for his cooperation, the state deliberately failed to produce any information to the defendants regarding Zaino's criminal conduct and deal. Instead the state once again pointed to the immense amount of material contained in the approximately 600 boxes already provided to the defendants and attempted to convince both the court and defense counsel that a competent and hard-working advocate would have been able to deduce that Zaino had lied on his tax returns. Once again the state ignored what this Court said it was obligated to do in Verlaque, 465 A.2d at 214.
The state's position that all of the materials withheld from the defendants were somehow actually present in the 600 boxes of materials already provided to defense counsel was later discovered to be not only factually incorrect and false but also totally unresponsive to the trial Justice's previous discovery orders. Those orders had specifically directed the prosecution to reveal to defense counsel the state's knowledge of all criminal conduct on the part of any of the unindicted coconspirators whom the state planned to call as witnesses at the defendants' trial. The court's orders were repeatedly and deliberately ignored by the state.
In light of the baneful prosecutorial misconduct found in this case and the resulting substantial and irreparable prejudice inflicted upon the defendants, I am satisfied beyond question that the trial Justice, acting pursuant to the authority granted him by Rule 16(i) of the Rules of Criminal Procedure, had not only clear authority but as well, ample justification to select case dismissal as the appropriate Rule 16(i) discovery violation remedial sanction.
The state in its appeal claims that it did no wrong. That of course is the very same claim that comes from every prisoner now confined in the Adult Correctional Institutions. The Court of Appeals for the Ninth Circuit addressed a similar contention in United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993); it stated,
"What we find most troubling about this case is not the [prosecutor's] initial transgression, but that he seemed to be totally unaware he'd done anything at all wrong, and that there was no one in the [prosecutor's] office to set him straight. Nor does the government's considered response, filed after we pointed out the problem, inspire our confidence that this kind of thing won't happen again." Id. at 1324.
"In a situation like this, the judiciary -- especially the court before which the primary misbehavior took place -- may exercise its supervisory power to make it clear that the misconduct was serious, that the government's unwillingness to own up to it was more serious still and that steps must be taken to avoid a recurrence of this chain of events." Id. at 1325.
In this case the state's failure to even acknowledge any wrongdoing on its part lends further support for the trial Justice's choice of remedial sanction.
I fear that if on the egregious facts present in this case and the findings of fact made by the trial Justice witness exclusion and case dismissal sanctions are not authorized, the message the majority's holding sends out to all prosecutors in this state is that they can continue hereafter to ignore Rule 16 pretrial discovery obligations, violate court discovery orders, and play "hide-and-seek" with defense counsel. If not caught, no one will ever know. If caught, the only remedial Rule 16(i) penalty that can be imposed, a
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