Those who attended the NAFUSA annual conference in Nashville in 2018 will recall the spirited panel discussion regarding the Tennessee Board of Professional Responsibility ethics opinion 2017-F-163. That opinion held: “Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or that otherwise falls within Rule 3.8(d)’s disclosure requirement, the prosecutor must disclose it as soon as reasonably practicable.” (Id. at 4.) On August 23, 2019, the Tennessee Supreme Court vacated ethics opinion 2017-F-163.

However, on August 26, 2019, the Chief Judge of the District Court for the Eastern District of Tennessee, Hon. Pamela L. Reeves, wrote J. Douglas Overbey, the United States Attorney for the district, and advised him that the state court’s decision does not control the district court’s ethical standards.

Writing on behalf of the entire bench, Chief Judge Reeves wrote, “The state court’s decision does not control this Court’s ethical standards.” She concluded, “In this regard, the judges in our district have determined that the laudable sentiments in 2017-F-163 are an expression of what should be expected of attorneys representing the United States in criminal cases. That being the case, it is still our expectation that Assistant United States Attorneys who appear before us will disclose exculpatory and mitigating material to a criminal defendant in the manner described in the referenced ethics opinion, and certainly before any guilty plea.”

Tom Wales

Assistant U.S. Attorney Thomas Wales was shot to death in his home in 2001. The FBI has led an 18-year investigation into the shooting, supported by a $1 million reward announced by the Department of Justice and supplemented by pledges of an additional $525,000 raised by the NAFUSA Foundation. It appears that Wales, who served as an AUSA in the Western District of Washington, was the first federal prosecutor killed in the line of duty in the nation’s history.

In what may be a break in the investigation, an indictment was handed up by a grand jury in June and unsealed this week in Seattle. The indictment charges a woman from Everett, Washington, with making a false declaration before a grand jury in February 2018 and obstruction of justice by obstructing the investigation into Wales’ death.

NAFUSA member John McKay, who began serving as U.S. Attorney for the Western District shortly after the shooting, is quoted in The Seattle Times as saying, “We should all be encouraged by the indictment and arrest if, as it appears, it relates to the murder of … Tom Wales in 2001, because it means the FBI and Department of Justice continue to actively investigate this horrible crime.”

McKay, who held the post until 2007, said the killing was an “attack on our justice system and if this arrest helps identify those cowards responsible for it then it’s not just a good thing – it’s a very good thing.”

Click here to read the full Seattle Times article

Deputy Solicitor General Michael Dreeben announced in June that he will be leaving the Department of Justice where he has served for 31 years in the Office of the Solicitor General. Michael gave the Supreme Court Update at NAFUSA’s 2012 annual conference in Atlanta and was honored in 2016 in San Diego over his service upon having argued his 100th case before the United States Supreme Court on behalf of the United States.

On July 30, 2019, Solicitor General Noel Francisco posted a Tribute to Michael Dreeben (Noel Francisco, Tribute to Michael Dreeben, SCOTUSblog) in which he said, “Michael Dreeben knows more about criminal law than anyone else on Earth. But it’s not only his knowledge that sets him apart. It’s also his talent as an advocate, and his tireless devotion to his craft.”

Most recently, Michael was a leading prosecutor on Bob Mueller’s special counsel team.