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Thursday, May 7, 2009

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.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


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).


Anonymous said...

If the District Atty's offices remain inside the courthouses..then how does anyone expect anything different.
OCA is guilty of withholding discovery, tampering with witnesses(promoting anyone inclined to testify against them with large upgrades that pay thousands of dollars more than they would get if they said nothing), and altering transcripts!
Why doesn't federal court go after the teacher and guidance counselor for these students of acceptable judicial starts with the boss and trickles down to the servants!
My request is to cut off the head of corruption before you start to dismember the body.
Guilt lies primarily with the court system...attack them hard and fast!

Anonymous said...

These jerks don;t know from ETHICS. All they want is the media so they get the press when the run for office! Put them all in jail for they know better. Make them learn the hard way.

Anonymous said...

This is SOP in New York, this type of thing goes on everyday.

Anonymous said...

Mis-conduct by prosecutors please tell me that this is not true! You mean that Attorneys do these type of un-ethicail, criminal things.

Anonymous said...

All these things go on everyday and that is why they are being exposed on this site...but the need is for everyone in NY state to be outraged by it and participate in the fight to force this state to address it, prosecute it and put in place future safeguards to prevent it..something Chicago did not do correctly or forcefully enough!

This message must get out to all those who do not deal with the justice system in anyway....and alert them to these stories and this blog.

Many people (who are in my life in large numbers) don't get what is really going on..because they have not had to see how the judicial system is twisting the knife in them, in much of what they do everyday.

It is hard to explain the corruption of this judicial system...because the language of the law is rarely understood by outsiders.

When I speak, these friends look at me blurry eyed and ALWAYS just should have been a lawyer! God help me for that impression!

Am I getting through to them or are they finding a new career for me...the answer is probably both...but the truth must be expressed more often and stated more simply.

They do seem to get it better when the print media writes a story...and that unfortunately is a fact that disappoints me because of the media's need to cloak the corruption!

So this blog must be passed on over and over is working and working well!

Someone said...

PRESS RELEASE- Feel free to send to local media.

What Becomes of Bad Lawyers?

The Shocking Lack of Ethical Oversight
Over Lawyers and Judges in New York State

There is a story of critical importance in New York State which has received virtually no coverage in the press.

It regards the so-called "judicial oversight committees" which exist to hold lawyers and judges to attorney ethical rules and judicial laws respectively. In New York State there are the divisional "Grievance Committees" and the "Commission on Judicial Conduct" (CJC)

The corruption in both of these bodies is absolute and flagrant, with not even an effort made at the appearance of legitimacy. Complaints against lawyers with "connections" (or cash on hand) are whitewashed. Lawyers who act against the connected ones are often sanctioned or disbarred - even if no complaint was brought against them. The huge fees some lawyers command is largely due to the impunity vested on them by the Grievance committees. If your lawyer can destroy evidence, perjure himself or intimidate your opponent with impunity, you have a much better chance of winning. Huge fees mean bigger bribes and so it goes in the Judicial circle jerk.

Likewise, the CJC dismisses complaints against judges without any investigation or explanation. Judges who dare to challenge the system are punished.

To compound the problem, no attorney will touch cases of alleged corruption against crooked attorneys or judges. They know this means professional suicide.

There exists an affiliation of people, each with a story of abject corruption by the Grievance Committees and/or the CJC. Their complaints against these agencies are not about unfavorable decisions, but about the flagrant lack of and abuse of due process:

This affiliation includes:

A woman who secretly videotaped her lawyer demanding “blow jobs” in return for special influence over Supreme Court judges. Despite the incontrovertible videotaped evidence, she has never been granted a hearing or investigation in four years.

A woman who was an investigating attorney for the First Departmental Grievance Committee (DDC). Her job was to investigate complaints against lawyers and render a determination of guilt to her superiors.

She discovered that her reports were being altered to reflect the opposite intent of her determination, and that her signature was forged on these decisions. In other words, her superiors were whitewashing certain complaints by changing the determination and crediting that false determination to this woman. When she complained, she was summarily fired by the DDC and with the approval of now Chief Judge Jonathan Lippman. Her case is pending in Federal Court.

A lawyer who was disbarred without due process because he stood up for his client against patently illegal acts by a judge upstate.

A woman who is a survivor of Auschwitz, and the first complainant in the Holocaust restitution case against the Swiss banks. Removed from the case by her lawyer after she exposed graft and corruption by the lawyers and his colleagues. Fourteen Years without a hearing.

There are countless other stories, each as egregious as the above, and each thoroughly backed by documented evidence.

This is an important and eminently newsworthy story because there is hardly a citizen alive who has not been damaged by his own lawyer, or by dirty tricks of an opposing lawyer, and who has not asked "how can they get away with that?".

The problem is, when anybody attempts to fight back against the outrageous acts of lawyers they fall down the black hole of the disciplinary process. 99% give up. The people in this group were determined enough to keep pursuing justice, wherever it lead. What they found at the end of the rabbit hole is a cold, hard f**k you". A de-facto admission that the rules of law and due process do not apply here.

The scale and depth of this corruption is staggering. The most disturbing revelation is that the new Chief Judge of New York State, Jonathan Lippman, is a lynchpin of the culture of corruption whose knowing participation is documented in numerous complaints.

To change the status quo it is not necessary to rehabilitate each of the thousands of bad lawyers and judges in New York State- only to thoroughly overhaul the Grievance Committees and the Commission on Judicial Conduct. With effective oversight agencies there would at least be a deterrent to abuses. As it stands, there is none.

Anonymous said...

the whole illegal system is corrupt. Time put all the bums in jail (hard time) and start over.

Anonymous said...

Bravo and congratulations to the lenghty commentor above!

You have bulls eyed this entire hidden corrupt situation and clearly put it out there for everyone to understand and clearly view it's detriment.

If after reading what has been expressed above, does not urge you to get involved...nothing printed or spoken will!

This state needs all citizens of any type to initiate heavy pressure on the federal government and all forms of the media , through any means they know how to begin to sanitize and re-create our NY STATE judicial system!

You all must demand an immediate investigation and prosecution of any and all members of the legal and judicial communities!

No one can be exempt...because the functional lives of all the people in this state have almost become unrecognizable and many...unworthy of any this insidious domestic terrorism grabs the breath they breathe and strangles them it's pursuit of self survival and protection from revelation!

What an insightful piece that has been written above!

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2