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Tim Zerillo Interviewed In Press Herald On Failures To Disclose Constitutionally Required Discovery

After rare sanction, Maine AG’s office agrees to change disclosure practices
Defense attorneys say they struggle often with prosecutors waiting too long to share constitutionally mandated evidence with them.

By EMILY ALLEN Staff Writer

Maine prosecutors say there's nothing wrong with how they disclose concerns about their witnesses' credibility - even if those disclosures sometimes come days or weeks before a criminal trial.

Still, a judge's criticism that prosecutors are either being "tactical" or "slipshod" in their late disclosures is prompting the Office of the Maine Attorney General to adjust its policies.

Superior Court Justice Daniel Billings issued a rare sanction against the Office of the Maine Attorney General last month after defense attorneys said a prosecutor waited until two weeks before a homicide trial was set to begin to disclose personnel information that showed a witness might not be credible - information the attorneys argued the state has known about since 2020. He called the situation "outrageous."

Prosecutors are required under federal and state law to hand over all "favorable" evidence to a defendant, including any information affecting a witness' credibility, even if it's not directly related to a defendant's case.

These are known as Brady or Giglio disclosures, required by two U.S. Supreme Court cases that have been established precedent since the 1960s and 1970s.

The problem, according to many Maine defense attorneys, is that this information is often handed over just before trial, complicating months of work invested in presenting an effective defense.


Billings' sanction is tied to the state's case against Jason Ibarra, who is accused of strangling his mother to death in her Bath apartment on May 24, 2022.

The judge's order meant Assistant Attorney General Leane Zainea could no longer call on the witness - whose identity is not disclosed in court records - because of the late disclosure.
He said the state's explanation, which is also not provided in written court documents, is "at best lacking and at worst inconsistent."

Ibarra took a plea deal this month and is awaiting sentencing.

Defense attorneys say this isn't just a problem in homicide cases - they see it in other felonies and misdemeanor cases, too.

"It is pervasive," said Timothy Zerillo, a Portland attorney and director of the National Association of Criminal Defense Lawyers.
"It's systemwide and it happens all the time."

Prosecutors are legally required not only to disclose evidence that a witness may not be credible, but also to be aware of any evidence that might exist.

But Natasha Irving, the district attorney for Sagadahoc, Lincoln, Knox and Waldo counties, said that prosecutors' offices also have limited resources and often rely on the law enforcement agencies to disclose potential issues.

Irving declined to comment on Billings' order because she doesn't know the details of the case, but said prosecutors are "routinely discussing" their obligations under Brady and Giglio. She said attorneys in her office regularly track law enforcement officers who have credibility issues and notify defense attorneys of that evidence during a defendant's first appearance.

"I don't want to pretend that we know everything that happens all the time, but the police agencies are supposed to be keeping us abreast of the issues," Irving said. "In my district, it does seem like they want to be doing the right thing, because they understand."


Zerillo believes judges should issue more sanctions to bar witnesses from testifying or even dismiss criminal charges.

"If judges hold prosecutors' feet to the fire and hold them accountable for what they should have been doing since 1965, this will not happen," Zerillo said.

"When judges allow them to get away with it, then you have this culture of constitutional violations."

Thea Johnson, a professor at Rutgers Law School in Camden, New Jersey, said these kinds of sanctions are rare, and send a message.

"When prosecutors violate these rules, judges tend not to punish them for it," Johnson said. "And if they're not punished for it then they don't get the message."

She said properly disclosing Giglio material can be integral to resolving cases and helping defendants make better decisions about "whether or not it's in their best interest to pursue a plea agreement or go to trial."