Prosecutorial Misconduct Investigation Subject To FOIA Request

The United States District Court for the District of Columbia (District Judge Ali) has granted summary judgment to the plaintiff in a FOIA request.

This Freedom of Information Act (“FOIA”) suit concerns a request for records related to allegations of prosecutorial misconduct by former Assistant U.S. Attorney Terra Morehead. In April 2024, Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) submitted a FOIA request to two offices within the Department of Justice (“DOJ”). ECF No. 10-3 ¶¶ 1, 8. CREW asked for records related to Morehead’s alleged violations of legal or ethical duties, as well as DOJ’s investigation into her alleged misconduct and any disciplinary action taken. Id. ¶ 1. One of the DOJ offices advised CREW that releasing the material without an authorization would result in “an unwarranted invasion of personal privacy.” Id. ¶ 12 (citation omitted). After not receiving any responsive records, CREW filed this action alleging DOJ wrongfully withheld documents. ECF No. 10-1 ¶ 7. While this litigation was pending, the other DOJ office provided a “Glomar response,” meaning it refused to confirm or deny the existence of the requested records. Id. ¶ 8.

Both parties move for summary judgment as to whether DOJ was justified in its Glomar response and categorical withholding of any responsive documents. ECF Nos. 10, 11. The Court concludes it was not. The Court therefore denies DOJ’s motion for summary judgment and grants CREW’s cross motion.

The court noted that the allegations have already been made public

In other litigation, the acting U.S. Attorney for the District of Kansas— where Morehead worked—testified that Morehead’s “reputation is poor for veracity” and that a district court had found Morehead “failed to be truthful.” ECF No. 11-11 at 6–7, 16. The acting U.S. Attorney also said he was “aware that there have been allegations” of Morehead refusing to provide evidence under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). ECF No. 11-11 at 15–16; see also id. at 13 (stating that circumstances of allegations that Morehead coerced false testimony “sound familiar to me”). And he testified that, to his knowledge, there had been no disciplinary consequences imposed on Morehead for “untruthfulness.” Id. at 5–6. The acting U.S. Attorney’s testimony thus publicly acknowledged Morehead’s alleged violations of legal and ethical duties, as well as the lack of discipline she faced. DOJ cannot claim “it would reveal anything not already in the public domain” to say the agency has records related to those alleged violations. ACLU, 710 F.3d at 430; see also Marino v. Drug Enf’t Admin., 685 F.3d 1076, 1082 (D.C. Cir. 2012) (“[A] federal prosecutor’s decision to release information at trial is enough to trigger the public domain exception where the FOIA request is directed to another component within the Department of Justice.” (emphasis omitted)).

DOJ suggests this testimony does not constitute an official disclosure because the acting U.S. Attorney responded, “I think so” when asked if he was aware of certain allegations and said only that he was “not aware of any discipline.” ECF No. 14 at 12 (citations omitted). Whatever the force of that argument, it is an incomplete account of the testimony. The acting U.S. Attorney specifically stated he was “aware that there have been allegations” of Morehead refusing to provide Brady or Giglio evidence. ECF No. 11-11 at 15–16. That confirmation “makes it neither ‘logical’ nor ‘plausible’ to maintain that the Agency does not have any documents” related to allegations of 4 misconduct against Morehead. ACLU, 710 F.3d at 431. The agency’s Glomar response accordingly was not proper under the public domain exception.

The Glomar response was also unjustified because DOJ has not shown that confirming or denying the existence of responsive records would harm Morehead given information that is already public.

 The public nature of the sought information is reflected in this NPR story

Terra Morehead, a longtime county and federal prosecutor who helped police frame at least one innocent man, has agreed to surrender her law license and faces disbarment.

Morehead, who became notorious for skirting legal protections for defendants, agreed to surrender her license as part of an agreement with the Kansas Board for Discipline of Attorneys. She is awaiting disbarment from the Kansas Supreme Court, according to court filings.

The documents also show that Morehead, who retired from the U.S. Attorney’s Office in Kansas last August, was the subject of a federal investigation by the U.S. Department of Justice. The result of that probe is unknown.

Morehead’s conduct came under scrutiny during the exoneration of Lamonte McIntyre, who was convicted in 1994 of a double homicide when he was 17.

McIntyre was freed in 2017 after Wyandotte County District Attorney Mark Dupree said his conviction was a “manifest injustice” and a judge dropped the case. McIntyre sued and was awarded $12.5 million in 2022 by the Unified Government of Kansas City, Kansas, and Wyandotte County for the wrongful conviction.

Acting on a case built by disgraced former Kansas City, Kansas Police detective Roger Golubski, Morehead presented no physical evidence tying McIntyre to the murders. She relied upon the testimony of a witness, Niko Quinn, who later recanted.

Quinn said Morehead threatened to throw her in jail and take her children if she didn’t lie about what she saw the day of the double homicide. Morehead also failed to disclose that she had a past romantic relationship with the judge on the case.

Quinn, reached Tuesday, said she is glad authorities are finally starting to clean up problems in the criminal justice system. Quinn and four other Black women have filed a federal civil rights lawsuit against the Unified Government alleging that officials permitted an “open and notorious police protection racket” to victimize the Black community.

Morehead’s actions may be added to the federal lawsuit, Quinn said. She said Morehead’s career had profited from her suffering.

“This is the beginning of my dreams,” Quinn said, “because I want her dreams.”

Morehead’s attorney didn’t return an email seeking comment on Tuesday.

Golubski faces a federal trial this fall on charges that he violated the civil rights of several Black women and, in a separate case, protected a KCK drug dealer who was running a sex trafficking operation of underage girls. He is currently on home arrest and was recently chided by a federal magistrate for violating his arrest conditions by going to a fast-food place.

After her tenure in the Wyandotte County DA’s office, Morehead moved to the U.S. Attorney’s Office in Kansas, where she became embroiled in other alleged ethical breaches and was removed from criminal cases in 2021.

Morehead was criticized in a U.S. Department of Justice investigation after a federal judge in 2017 tossed a defendant’s conviction on drug charges.

In a rare public admonishment, U.S. District Judge Julie Robinson ruled that Morehead had interfered with a defendant’s Sixth Amendment right to a fair trial and found that Morehead had “substantially interfered with a defense witness’s decision to testify” in the case.

A March 20 filing with the Kansas Supreme Court, signed by Alice Walker, deputy disciplinary administrator for the Kansas Board for Discipline of Attorneys, asks the court to forego an April pre-hearing and a May formal hearing because Morehead had agreed to surrender her license to practice law. The disciplinary board recommended that the high court accept it.

The court approved the request and is now expected to issue a formal disbarment, which is standard practice under Kansas Supreme Court rules when an attorney surrenders their law license.

The state board also told the high court that Morehead had been the subject of an investigation by the Office of Professional Responsibility for the U.S. Department of Justice, but doesn’t say what that found.

(Mike Frisch)