NYLJ: Misconduct by Prosecutors a Recurring Problem

Corporate Crime
Serious Misconduct by Prosecutors a Recurring Problem
The New York Law Journal by Howard W. Goldstein - May 07, 2009

At 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: 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

The Stevens Case

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 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 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

Howard W. Goldstein is a partner at Fried, Frank, Harris, Shriver & Jacobson. Megan Whyte, an associate at the firm, assisted in the preparation of this article.

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, §9-5.001 (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).