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©2009 Incisive Media US Properties, LLC
thursday, may 7, 2009
Volume 241—NO. 87
corporate crime
Serious Misconduct By Prosecutors A Recurring Problem
A
t least once in his or her career, and
usually more often, every criminal
defense lawyer is asked some variant
of the question “How can you represent
those people?” There are many deeply
personal answers to this question, but one
constant theme of the answers (aside from a
reminder that some of “those people” are, in
fact, innocent) is the importance to our criminal
justice system and to the protection of our basic
liberties of putting the prosecution to the test of
proving its case in the face of a vigorous defense.
Indeed, as a nation we are historically allergic to
the exercise of unchallenged power.
On occasion, the product of a vigorous defense
is the exposure of a malfunction in the system so
obvious that the resulting judgment in favor of
the defendant is accepted without the otherwise
too frequent and too unfortunate cries that the
defendant “beat the rap.” The recent case of
former Alaska Senator Ted Stevens was such a
case. But much as we would hope the Stevens
case was an aberration, it is not. Rather, it is only
another recent manifestation of what the judge
in the Stevens case characterized as a “troubling
tendency.”
The Legal and Ethical Basics
The basic legal and ethical obligations violated
by prosecutors in the recent cases discussed
below are well established and clear. In Brady
v. Maryland,1 the Supreme Court held that “the
suppression by the prosecution of evidence
favorable to an accused upon request violates
due process where the evidence is material either
to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”2 In
Giglio v. United States, the Court made clear that
exculpatory evidence included impeachment
material, in that case a non-prosecution promise
to a testifying co-conspirator.3
These legal obligations are also ethical
obligations, violations of which can subject a
prosecutor to professional discipline. ABA Model
Rule of Professional Conduct 3.8, adopted in
substance in New York, specifically provides that
the prosecution in a criminal case shall:
Howard W. Goldstein is a partner at Fried, Frank,
Harris, Shriver & Jacobson. megan why te , an
associate at the firm, assisted in the preparation of
this article.
The Stevens Case
By
Howard W.
Goldstein
make timely disclosure to the defense of
all evidence or information known to the
prosecutor that tends to negate the guilt of
the accused or mitigates the offense, and, in
connection with sentencing, disclose to the
defense and to the tribunal all unprivileged
mitigating information known to the
prosecutor, except when the prosecutor is
relieved of this responsibility by a protective
order of the tribunal.4
These legal and ethical obligations are rooted
in the prosecutor’s role and responsibility in the
criminal justice system. As described by the
Court in Brady,
Society wins not only when the guilty are
convicted but when criminal trials are
fair; our system of the administration of
justice suffers when any accused is treated
unfairly. An inscription on the walls of the
Department of Justice states the proposition
candidly for the federal domain: “The United
States wins its point whenever justice is done
its citizens in the courts.”5
Or, as explained by Justice Sutherland in these
oft-quoted words:
The United States Attorney is the
representative not of an ordinary party to
a controversy, but of a sovereignty whose
obligation to govern impartially is as
compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal
prosecution is not that it shall win a case,
but that justice shall be done. As such, he
is in a peculiar and very definite sense the
servant of the law, the twofold aim of which
is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness
and vigor­—indeed, he should do so. But,
while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much
his duty to refrain from improper methods
calculated to produce a wrongful conviction
as it is to use every legitimate means to bring
about a just one.6
These legal and ethical obligations were
repeatedly violated in the recent case of former
Alaska Senator Ted Stevens. In October 2008,
Senator Stevens was convicted after a five-week
trial of charges that he had failed to list on Senate
disclosure forms approximately $250,000 worth
of goods and services he received. During the
trial, government prosecutors were repeatedly
forced to admit that they had failed to turn
over information to the defense.7 At least twice
during the trial, the Court instructed the jury
to ignore evidence the prosecution introduced.8
The government was also chastised for allowing
a witness to leave town without informing the
judge or the defense and for introducing evidence
it knew was not accurate.9 After the trial, an FBI
agent sought whistleblower protection and filed a
10-page affidavit in which he made allegations of
misconduct he had witnessed both by prosecutors
and by fellow FBI agents, including allegations
that evidence had been willfully withheld from
the defense.10
On Feb. 3, 2009, shortly after taking office,
Attorney General Eric Holder replaced the
prosecutors on the case with a new team. 11
Later in February, Judge Sullivan held three of
the prosecutors (including the chief and the
deputy chief of the Public Integrity Section of
the Justice Department) in contempt for failing
to comply with the Court’s orders relating to
the production of documents. On April 1,
the newly-appointed prosecution team filed a
motion to set aside the verdict and to dismiss
the indictment with prejudice. The team had
discovered prosecutors’ notes from an April
2008 interview of a key prosecution witness
that contradicted his trial testimony and had
never been produced to the defense.
On April 7, 2009, Judge Sullivan granted the
motion to set aside the verdict and dismissed
the indictment with prejudice. In delivering his
decision from the bench, Judge Sullivan called
the prosecutors’ conduct the most serious he
had seen in almost 25 years on the bench and
characterized the conduct as part of a “troubling
tendency” of prosecutors to stretch the boundaries
of ethical restrictions and withhold evidence
from defendants.12 Stating that he had no faith
in the Justice Department’s Office of Professional
Responsibility, he appointed an outside attorney
to investigate six of the prosecutors, including
both the chief and the deputy chief of the Public
thursday, may 7, 2009
Integrity Section, for possible criminal contempt
charges.13
The Shaygan Case
Dr. Ali Shaygan, a physician in Florida,
was charged with 141 counts of unlawfully
prescribing medication after one of his patients
died from an overdose.14 Midway through trial,
during cross-examination, a government witness
disclosed for the first time that he had secretly
recorded conversations with the defense team
with the prosecution’s authorization. The
prosecution then disclosed that another witness
had also recorded conversations—both sets of
tapings being done as part of a purported witness
tampering inquiry. Neither witness had been
presented to the jury as cooperating with the
prosecution.15
Dr. Shaygan was acquitted. Thereafter, his
lawyer sought attorney’s fees and costs under
the Hyde Amendment, and the court held
a two-day hearing on alleged prosecutorial
misconduct, including the undisclosed recordings
and violations of Brady, Giglio, and the Jencks
Act.16 At the conclusion of the hearing, the
court issued a 50-page order criticizing, in the
strongest terms, the government’s handling of
the case. The court granted the defendant full
relief for all fees and costs from the time the
superseding indictment was filed, which is when
the court concluded the prosecution had first
taken a position in bad faith. The prosecutors’
conduct was described as the product of “the
prosecutors’ moral obliquity and egregious
departures from the ethical standards to which
prosecutors are held.”17 The order is remarkable
for its repeated findings of actions taken in bad
faith, repeated rejections of the prosecution’s
testimony as not credible, and conclusion that
the collateral witness tampering investigation
was the product of the prosecution’s personal
animus for the defense lawyers.18
In addition to the Hyde Amendment
sanctions, the court, among other steps, entered a
public reprimand of the United States Attorney’s
Office and three prosecutors specifically, indicated
that it would refer the matter to the relevant
disciplinary authorities, and ordered the United
States Attorney’s Office to report to the Court
the result of the inquiry being conducted by
the Justice Department Office of Professional
Responsibility.19
The Judge Wolf Cases
In United States v. Jones, 20 Chief Judge
Mark Wolf of the U.S. District Court for the
District of Massachusetts denied the defendant’s
suppression motion, but only after first rejecting
the government’s justification for the seizure
“because of repeated government misconduct
that, if not discovered, might have frustrated
the court’s ability to find the facts reliably and
might have deprived Jones of his right to due
process.”21 In Jones, the government’s arguments
to sustain the seizure depended on the testimony
of a Boston police officer, who claimed that he
knew and recognized the defendant riding a
bicycle away from the police after first making
eye contact with the officer. In advance of the
suppression hearing, this claim was made by the
government in its written submission, orally, and
in an affidavit by the officer. At the hearing, the
police officer reportedly testified to that effect.
At the beginning of the hearing, the
prosecution told the court that all exculpatory
material had been disclosed. After the officer’s
testimony, the prosecutor repeated that claim,
but at the court’s urging to be sure, she provided
her notes to the court “out of an abundance of
caution.”22 The notes disclosed that the officer
in fact had told the prosecution several times
that he did not recognize the man when he was
on the bicycle. On Jan. 21, 2009, in a 42-page
memorandum denying the defendant’s motion on
other grounds, the court ordered the government,
among other things, to show cause why the
prosecutor should not be sanctioned.23 After
receiving the government’s response, Judge Wolf
scheduled a hearing to consider whether to order
the prosecutor to reimburse the court for some
of the time spent by the defendant’s appointed
counsel and to attend a court-organized program
on disclosure obligations involving judges,
defense lawyers, and prosecutors.24
This was not Judge Wolf’s first experience
with prosecutorial misconduct in his district.
An attachment to the January Memorandum
listed eight major cases before Judge Wolf in
which prosecutors had withheld important
On occasion, the product of a vigorous
defense is the exposure of a malfunction in the system so obvious that the
resulting judgment in favor of the defendant is accepted without the otherwise too frequent and too unfortunate
cries that the defendant “beat the rap.”
evidence.25 In one of those cases, Ferrara v.
United States, a defendant who pleaded guilty
in an organized crime case was resentenced to
time served after it was discovered that the lead
prosecutor had withheld evidence that directly
negated the defendant’s guilt on charges that he
had directed a murder.26 Incredibly, in appealing
Judge Wolf’s order resentencing the defendant to
time served, the government maintained that the
withheld evidence was not material, even after
the Justice Department’s Office of Professional
Responsibility concluded in an internal report
that the evidence was exculpatory and should
have been produced.27
Conclusion
The cases discussed above are only a few
examples of recent cases involving serious
prosecutorial misconduct. Space limitations
preclude discussing additional cases, but
interested readers can look at cases cited in the
accompanying footnotes for further examples,
including one in which the prosecutor attempted
to excuse his failure to investigate and disclose
indications that his main witness was lying by
asserting that he was too busy preparing for trial
(the witness did not testify and was ultimately
prosecuted for lying to the prosecutors),28 and
another characterized by the Ninth Circuit
as “prosecutorial misconduct in its highest
form.”29
This article is not meant to be a condemnation
of prosecutors, most of whom are accomplished
and dedicated public servants who conduct
themselves with a high degree of professionalism.
But the fact remains that, for whatever reason,
prosecutorial misconduct is a recurring problem.30
And it is also a fact that these ethical and legal
lapses frequently would go undetected, to the
detriment of the defendants’ most basic rights,
but for the defense lawyers’ dedication to the
protection of those rights. So, “how can you
represent those people?” The answer is clear.
“Eternal vigilance is the price of liberty.”31
•••••••••••••
••••••••••••••••
1. Brady v. Maryland, 373 U.S. 83 (1963).
2. Id. at 87.
3. Giglio v. United States, 405 U.S. 150 (1972).
4. Model Rules of Prof’l Conduct R. 3.8(d) (2008); see N.Y.
Rules of Prof’l Conduct R. 3.8(b) (2009).
5. Brady, n.1 supra, at 87.
6. Berger v. United States, 295 U.S. 78, 88 (1935). See also
Standards for Criminal Justice: Prosecution Function & Def.
Function 3-3.11 cmt. (3d ed. 1993) (“A prosecutor has the
responsibility of a minister of justice and not simply that of
an advocate”); United States Attorneys’ Manual, Title 9, §95.001 (October 2006) (setting forth policy “with respect to
the government’s obligation both to disclose exculpatory and
impeachment information to criminal defendants and to seek
a just result in every case”).
7. Neil A. Lewis, “Tables Turned on Prosecution in Stevens
Case,” N.Y. Times, April 8, 2009, at A1.
8. Del Quentin Wilber, “Judge Tosses Out Stevens
Conviction,” Wash. Post, April 7, 2009.
9. Del Quentin Wilber, “Judge Orders Probe of Attorneys
in Stevens Case,” Wash. Post, April 8, 2009, at A01.
10. Redacted Complaint, United States v. Stevens, No. 08
Cr. 231 (D.D.C. Jan. 14, 2009).
11. Neil A. Lewis & David Johnston, “Dismayed Lawyers
Lay Out Reasons for Collapse of the Stevens Conviction,”
N.Y. Times, April 7, 2009, at A20.
12. Neil A. Lewis, “Tables Turned on Prosecution in
Stevens Case,” N.Y. Times, April 8, 2009, at A1.
13. Wilber, “Judge Orders Probe of Attorneys in Stevens
Case,” n. 9 supra.
14. Martha Neil, “Federal Judge Sanctions US $600K for
Secretly Taping Defense Lawyer,” ABA J., April 9, 2009.
15. Jay Weaver, “Prosecutors Accused of Misconduct,”
Miami Herald, March 3, 2009, at B3.
16. Vanessa Blum, “Judge Might Penalize Prosecutors in
Failed Drug Case,” Sun-Sentinel, March 21, 2009, at 9B.
17. Order on Defendant’s Motion for Sanctions Under
Hyde Amendment at 41-42, United States v. Shaygan, No. 08
Cr. 20112 (S.D. Fla. April 9, 2009).
18. See id. at 6-27, 29.
19. Id. at 49-50.
20. United States v. Jones, No. 07 Cr. 10289,
2009 WL 151587 (D. Mass. Jan. 21, 2009).
21. Id. at *1.
22. Id. at *4.
23. Id. at *6.
24. United States v. Jones, No. 07 Cr. 10289, 2009 WL
1111210, at *1 (D. Mass. April 27, 2009).
25. Jones, n. 20 supra, 2009 WL 151587, at *17-18.
26. Ferrara v. United States, 384 F. Supp. 2d 384 (D. Mass.
2005), aff’d 456 F. 3f 278 (1st Cir. 2006); Ferrara v. United
States, 372 F. Supp. 2d 108 (D. Mass. 2005).
27. Adam Liptak, “Federal Judge Files Complaint Against
Prosecutor in Boston,” N.Y. Times, July 3, 2007, at A11.
28. United States v. Quinn, 537 F. Supp. 2d 99, 111 (D.D.C.
2008).
29. United States v. Chapman, 524 F.3d 1073, 1090 (9th Cir.
2008).
30. See, e.g., Duff Wilson & David Barstow, “Duke
Prosecutor Throws Out Case Against Players,” N.Y. Times,
April 12, 2007, at A1 (North Carolina Attorney General
stated that three Duke University lacrosse players had been
wrongly accused by a “rogue prosecutor”; “We believe that
these cases were the result of a tragic rush to accuse and a
failure to verify serious allegations”); Duff Wilson, “Prosecutor
in Duke Case Disbarred by Ethics Panel,” N.Y. Times, June
17, 2007, at 1 (North Carolina state ethics panel disbarred
Durham’s district attorney in light of his dishonesty and
deceitfulness toward the court and defense counsel); Aaron
Beard, Associated Press, “Ex-Duke Lacrosse Prosecutor Leaves
Jail,” Sept. 8, 2007 (district attorney served 24-hour jail
sentence for criminal contempt for lying to court).
31 Wendell Phillips, Speech at the Melodeon (Jan. 28,
1852), in Speeches Before the Massachusetts Anti-Slavery
Society, January 1852, at 13 (1852).
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