May 12, 2008
Do Federal Judges Question NYPD Credibility in Suppression Cases?
From the N.Y. Times: After listening carefully to the two policemen, the judge had a problem: He did not believe them.
The officers, who had stopped a man in the Bronx and found a .22-caliber pistol in his fanny pack, testified that they had several reasons to search him: He was loitering, sweating nervously and had a bulge under his jacket.
But the judge, John E. Sprizzo of United States District Court in Manhattan, concluded that the police had simply reached into the pack without cause, found the gun, then “tailored” testimony to justify the illegal search. “You can’t have open season on searches,” said Judge Sprizzo, who refused to allow the gun as evidence, prompting prosecutors to drop the case last May.
Yet for all his disapproval of what the police had done, the judge said he hated to make negative rulings about officers’ credibility. “I don’t like to jeopardize their career and all the rest of it,” he said.
He need not have worried. The Police Department never learned of his criticism, and the officers — like many others whose word has been called into question — faced no disciplinary action or inquiry.
Over the last six years, the police and prosecutors have cooperated in a broad effort that allows convicted felons found with a firearm to be tried in federal court, where sentences are much harsher than in state court. Officials say the initiative has taken hundreds of armed criminals off the street, mostly in the Bronx and Brooklyn, and turned some into informers who have helped solve more serious crimes.
But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”
Full article here. [Brooks Holland]
9th Circuit Upholds Dismissal Sanction for Brady Violation
From Law.com: Roundly denouncing a Las Vegas federal prosecutor for withholding 650 pages of evidence potentially helpful to two lawyers charged in a stock fraud case, the 9th U.S. Circuit Court of Appeals upheld dismissal of all 64 charges and refused to allow a retrial.
"This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available," wrote Judge Kim Wardlaw.
The panel found the Nevada U.S. Attorney's Office violated the constitutional obligation to turn over potentially exculpatory information to the defense under Brady v. Maryland, 373 U.S. 83 (1963).
Five men, including attorneys Daniel Chapman and Sean Flanagan, were charged in 2003 in a 64-count indictment of a complex securities trading scheme called a "box job," in which a small group secretly control corporate shares and manipulate stock through straw officers and shareholders, according to the opinion in U.S. v. Chapman, 2008 WL 1946744.
The government alleged that the defendants made $12 million, which was allegedly laundered through Flanagan and Chapman's law firm and various corporations.
Assistant U.S. Attorney J. Greg Damm, identified in court records as the trial attorney, assured the defense and the trial judge that he had turned over all documents. But one day before trial in 2006, he announced that the case agent, who was not on the witness list, would testify. None of his statements, memos or notes had been disclosed to the defense.
When the trial judge demanded proof the records were given to the defense, Damm said he could not verify the claim and kept no log of the 400,000 pages of discovery given to the defense.
"We are disappointed with the appellate court's decision," said Natalie Collins, spokeswoman for Nevada U.S. Attorney Greg Brower.
She said her office reported the matter to the Justice Department's Office of Professional Responsibility upon dismissal. "OPR's investigation concluded that the U.S. Attorney's Office did not engage in any intentional misconduct," she said.
The 650 missing pages ultimately included rap sheets, plea agreements and cooperation agreements with witnesses, said C. Stanley Hunterton of Hunterton & Associates in Las Vegas, an attorney for Chapman. He said he was not contacted by the OPR about the investigation.
U.S. District Judge James Mahan dismissed the charges in 2006, saying it was impossible to go on with the trial based on the withheld information.
"There never was an explanation by the government about why the documents were not turned over when the court ordered it," said James L. Sanders of McDermott Will & Emory's Los Angeles office, who represents Flanagan.