EMAILGATE: Courtroom Clerk Emails Prosecutor Mid-Trial To Tell Him The Witness Is Lying About A Football Game.

Gordon Carpenter & Tyrone Jones v. United States (Decided August 11, 2016).

Players: Associate Judges Thompson and Easterly, and Senior Judge Farrell. Opinion by Judge Thompson. Marc Resnick for Mr. Jones and Abram Pafford for Mr. Carpenter. Trial Judge: Patricia Broderick

Facts: A jury convicted Mr. Jones and Mr. Carpenter of unlawful distribution of heroin after a buy/bust operation. Before trial, Mr. Carpenter moved to suppress physical evidence that police found during a search incident to arrest, a motion the court denied.

Then, during trial, an officer testified that as an arrest team member, he does not get too close to the undercover officers involved in buy/bust operations because that would put their lives in danger. Mr. Carpenter objected to this testimony and moved to strike. Judge Broderick refused to strike the testimony, even though she mused in open court that “there’s certainly no suggestion that life was endangered by these defendants.”

Finally, both defendants testified during trial that the money police saw them exchange during the buy/bust operation was actually them settling a sports debt. Mr. Jones had bet Mr. Carpenter $20 that the Washington Football Team would beat Mr. Carpenter’s favorite team (“probably” the Steelers, 49ers, or Dolphins). Mr. Jones lost that bet because the Washington Football Team lost that game. After the jury returned its verdict but before sentencing, the government notified the defense that the prosecutor had received an email from the courtroom clerk stating that the defendants were lying about the football game. The email exclaimed: “Washington WON that week, and they played the Oakland Raiders . . . so they are not telling the truth!!” Mr. Jones moved for a mistrial, which Judge Broderick denied because there was “no evidence that any of this information, which was public information that anyone could’ve gotten, ever got to the jury.”

Issue 1: Did the trial court err in denying the motion to suppress physical evidence police recovered from Mr. Carpenter?

Holding 1: No. As a threshold matter, the Court clarified that although Mr. Carpenter’s brief styled the issue as “whether there was probable cause for his arrest,” his argument focused on whether “the arrest team officers were justified in stopping him,” thus the Court treated the issue as whether there was reasonable articulable suspicion (RAS) for police to stop him. The Court held that there was RAS based on the lookout police received after the drug transaction: “two African American males, both had hats on, one had a gray hoody and white shirt and the other had a blue hood and a cane.” Police arrived at the scene within a minute and found appellants matching the description on the same block described in the lookout.

Issue 2: Did the trial court err by failing to strike the officer’s testimony that “he didn’t want to be too close to the undercover officers because he would be putting their lives in danger?”

Holding 2: Maybe, but the error was harmless. The Court noted that Judge Broderick seemed to agree when the testimony was objected to that it was irrelevant, and thus the Court opined that it would have “preferable” for her to strike the testimony. But “in light of the facts Judge Broderick at least signaled to the jury that this testimony had no bearing on Carpenter’s trial; that the government did not highlight this testimony in closing; and that the evidence establishing Carpenter’s guilt was otherwise strong,” the error was harmless.

Issue 3: Did the trial court err by denying a mistrial after the courtroom clerk’s ex parte communication with the prosecution during trial came to light?

Holding 3: No. The Court of Appeals noted that the email was “clearly improper” given Code of Judicial Conduct Rule 2.9(A)’s prohibition against judges “permitting” ex parte communications, and Rule 2.9 (D)’s requirement that judges “make reasonable efforts, including providing appropriate supervision” to ensure the rule against ex parte communications is “not violated by court staff.” Nevertheless, the Court held that “the record does not establish that Judge Broderick failed to caution her staff or to make the requisite reasonable efforts,” nor does it “establish that Judge Broderick learned of the courtroom clerk’s email or its contents before the government’s [ ] disclosure.” While Judge Broderick learned about the email before she sentenced Mr. Jones, the sentence Judge Broderick imposed — twenty months’ incarceration and three years’ supervised release, suspended as to all but six months’ incarceration and eighteen months’ probation, which was at the “very low end” of Jones’ twenty to forty-months guidelines range — belied any claim of prejudice. Moreover, Mr. Jones did not claim that the prosecutor took any action based on the clerk’s email or that the email affected jury deliberations.

Of Note: In footnote 19, the court noted that the “timing of the government’s disclosure of the email” was “troubling,” because “had the government disclosed it earlier, Judge Broderick would have been alerted in a more timely fashion to the need to instruct and admonish her courtroom clerk.”  DH

Read full opinion here.