The opinion of the court was delivered by: JAMES F. HOLDERMAN
JAMES F. HOLDERMAN, District Judge:
Approximately a year ago on June 4, 1993, this court ordered a new trial as to certain defendants in this case. See United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993). The basis of that ruling was that the government had violated the defendants' due process rights during the defendants' trial in 1991 by knowingly failing to disclose information required to be disclosed under the doctrine of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
The facts underlying that June 4, 1993 ruling were established primarily at post-trial hearings conducted by this court in November and December of 1992. Those facts are detailed in the Burnside opinion and will not be repeated here. The government had disputed the magnitude and materiality of the undisclosed Brady evidence. The government, however, did not pursue an appeal from this court's June 4, 1993 decision granting a new trial.
No new trial in this case has occurred. The government instead moved to dismiss the indictment's charges against certain defendants and entered into plea agreements with the remaining defendants. Those plea agreements provided more lenient sentences than had previously been sought by the government before the Brady violations were revealed. For example, after the 1991 trials, but before the 1992 post-trial hearings in this case, the government had recommended the following sentences for the three defendants in the Burnside trial: 1) 160 years for defendant Thomas Burnside; 2) 80 years for defendant Codell Griffin; and 3) life for defendant C.D. Jackson. After this court set the date for the retrial of defendant C.D. Jackson, the government, pursuant to a plea agreement, allowed defendant Jackson to plead guilty to a superseding misdemeanor marijuana possession charge for time served, and moved to dismiss the felony charge in the indictment against defendant Jackson. The government also filed a motion to dismiss all charges against defendants Burnside and Griffin stating:
Because the post-trial hearings in this case have undercut the viability of certain witnesses that testified in the first trial, the available evidence appears insufficient to prosecute Burnside and Griffin.
(Government's Motion to Dismiss Indictment Against Burnside and Griffin, filed January 27, 1994, P 3.)
Furthermore, rather than litigate the new trial motions filed by other defendants in this case, whose convictions in their 1991 trial (the Bingham trial) were also tainted by the Brady violations, the government moved to dismiss the indictment after filing a single-count superseding criminal information as to each defendant. Pursuant to plea agreements, the government reduced its recommended prison sentences as to each of the ten defendants convicted in the Bingham trial as follows:
Defendants Convicted Government's Initial Government's Post-Disclosure
in Bingham trial Recommended Sentences Agreed Sentences
Kenny Bingham 15 years 4 years, 5 months, 25 days
Johnny Brown 27-33 years 6 years
David Carter Life 8.5 years
Herbert Dinkins Life 6 years
Paul Downie 27-33 years 6 years
Roderick Haygood Life 7.5 years
Darryl Lamb 27-33 years 6 years
Virn Polk 30 years-life 6 years
Dwayne Price Life 6 years
Michael Sing Life 6 years
Additionally, the government entered into plea agreements with defendants Ronald Jennings and Robert Johnson, who had been fugitives during the 1991 trials at which the Brady violations occurred. The government agreed to non-guideline prison terms of four years for Jennings and two years and six months for Johnson. This court imposed the Rule 11(e)(1)(C) sentences as to the charges to which defendants Jennings and Johnson pleaded guilty. When, however, the court scheduled trial dates on other pending charges to which defendants Jennings and Johnson had pleaded not guilty, the government refused to proceed to trial, citing the disclosure of the previously concealed Brady material as a reason.
One defendant, Codell Griffin, who was previously convicted in the Burnside trial and subsequently granted a new trial, objected to the government's motion to dismiss the charges against him. Defendant Griffin and his counsel, Richard Kling, armed with the previously concealed Brady material, are apparently willing to take the risk of a new trial if this court does not grant either Griffin's or the government's pending motion to dismiss. The court, and apparently the government, now believes defendant Griffin's chances of an acquittal are substantial. Indeed, the government has decided not to call Harris and Evans, who were previously the government's key witnesses, to testify again at any new trial.
After this court's opinion in 1993 and thus far in 1994, certain additional undisclosed Brady information, which had been in the government's possession since the time of the 1991 trials, was disclosed for the first time. Among other things the government possessed, but did not disclose, were government log books, prepared and maintained by government personnel at the Metropolitan Correctional Center ("MCC") in Chicago. These log books contained entries detailing activities observed by government personnel on the 6th floor unit of the MCC, the unit where most of the government's cooperating "El Rukn" witnesses had been during the trial, post-trial hearings and thereafter.
Additionally in 1994, the government first disclosed evidence of tape recordings of certain 1992 telephone conversations between certain of the cooperating El Rukn witnesses and government personnel, as well as others, over U.S. Attorney's Office's phone lines.
Other previously undisclosed information, known to government personnel during the 1991 trials and 1992 post-trial hearings, was also revealed for the first time after the hearings, during the course of the investigation conducted by the Department of Justice ("DOJ") Office of Professional Responsibility ("OPR") regarding "Alleged Misconduct in the Chicago USAO [United States Attorney's Office]. The court will address each in turn.
On April 14, 1992 this court entered an order requiring the production of books, records and other documents by the United States Bureau of Prisons. That order was initially proposed by Richard Kling, defense counsel for defendant Codell Griffin. The proposed order was modified by Assistant U.S. Attorney ("AUSA") Michael Shepard after he consulted with MCC personnel, Bureau of Prisons ("BOP") personnel and U.S. Attorney Office's personnel, including AUSA William Hogan. After AUSA Shepard's modifications were accepted by defense counsel, the April 14, 1992 order was entered by this court, without further modification, as an agreed order.
That order was entered to obtain all the information in the possession of the BOP which would assist this court's post-trial determination as to any illegal drug use by cooperating government witnesses, Henry Harris and Harry Evans, who had been housed on the 6th floor of the MCC.
Despite the fact that the order called for all documents and information regarding Harris and Evans' drug use, drug tests and:
g. any and all movement logs which would log the movement into and out of the Metropolitan Correctional Center of Harry Evans and Henry Leon Harris except that this order does not include information revealing the present or future whereabouts of Evans or Harris;
h. visitor records reflecting any and all dates of visits (not to include the names, addresses or other personal information of visitors) Harry Evans and Henry Leon Harris had while housed at the Metropolitan Correctional Center,
(April 14, 1992 Order, 89 CR 909), that information was withheld by the government from the court and defense counsel.
Among the materials not produced, which should have been produced in April 1992, as AUSA Shepard subsequently conceded (November 12, 1993, Tr. 38), were the Unit 6 Log Books, which showed "the movement into and out of the Metropolitan Correctional Center of Harry Evans and Henry Leon Harris" as well as "dates of visits . . . that Harry Evans and Henry Leon Harris had while housed at the Metropolitan Correctional Center." ( April 14, 1992 Order, Case No. 89 CR 909).
Noted by the MCC Unit 6 personnel on April 2, 1989 in these log books was the following:
NOTE: Keep a watch on Inmate Harris [number deleted]. At times he appears to be under some intoxicants.
Among other entries pertaining to Harris and Evans in the Unit 6 Log Books is an entry written in red ink on April 25, ...