A Federal Judge Disapproves Of Prosecutors Using Private Contractors

A majority of the trials for the hundreds of persons charged for involvement in the intrusion into the Capitol on January 6 are likely to be delayed until at least 2022. Following a ruling on July 16 against the use of a private contractor for case preparation by federal prosecutors.

In a 54-page decision, U.S. District Court Judge Beryl Howell denied the Justice Department’s request to share grand jury records with a contractor. President Obama appointed Judge Howell in 2010.

The government’s contractor was selected to create and maintain a database for use before and during trials. The material which would have been shared included a large amount of electronic data, including video files, social media posts, emails, and other forms of evidence.

Deloitte Financial Advisory Services was to be paid $6.1 million for the work, and the database was intended to be available to both prosecutors and defense attorneys. Defendants are entitled to review most types of evidence obtained by the government in criminal prosecutions.

While the government still must share all evidence, the judge’s problem with the procedure was using a private contractor to handle proof used by the grand jury in the cases.

The government argued that the contractor’s staff would act as the equivalent of federal government employees for the rules governing grand jury evidence. The judge disagreed and found that the government had not shown any particularized need for Deloitte to see the grand jury evidence.

In her opinion, the judge wrote, “The term ‘government personnel’ is best construed, in accord with the bulk of the district court case law, as including only employees of public governmental entities.”

The way the government planned to have Deloitte set up the database also failed to satisfy the judge, as every defendant may not have the right to see all of the evidence gathered into the database.

The judge wrote, “The safeguards built into the government’s contract with Deloitte, therefore, do not assuage the concern that bulk disclosure to this private entity will undermine the interests of grand jury secrecy, particularly in such a high-profile and historically significant investigation.”

As a result of the order, prosecutors will have to use only permitted government employees to handle, assemble, and disclose the evidence. While prosecutors are likely to argue that requirement creates a burden requiring more time before trials are conducted, every defendant has the right to a speedy trial under the Sixth Amendment to the Constitution.