Thursday, June 4, 2009

"Egregious Abdication Of... Ethical Obligations"

An interesting "case of the month" from the National Organization of Bar Counsel:

A federal prosecutor’s personal animosity leading to a collateral investigation of an opposing defense team warrants sanction.

On April 9, 2009, Judge Alan Gold of the United States District Court for the Southern District of Florida ruled on a defendant’s motion for sanctions against the United States pursuant to the Hyde Amendment. The defendant, Ali Shaygan, claimed that he had been prosecuted by the Justice Department in bad faith. Earlier, the United States acknowledged that it initiated a collateral investigation into witness tampering and authorized two witnesses to tape their conversations with members of the defense team in violation of U.S. Attorney’s Office (USAO) policy. The month before, Shaygan was found not guilty by a jury on all 141 counts of a superseding indictment.

Judge Gold imposed a public reprimand against the U.S. Attorney for the Southern District of Florida for failing to properly supervise AUSA Karen Gilbert, the head of the Narcotics Section of the USAO. Judge Gold also reprimanded Gilbert and her deputies for gross negligence, as well as the two prosecutors in the case, AUSAs Cronin and Hoffman. He did however acknowledge that the U.S. Attorney, Alexander Acosta, had no actual knowledge of the events in question. The judge agreed with the government that its original indictment in the case was filed in good faith, especially given the circumstances surrounding the death of one of Dr. Shaygan’s patients, but prosecutorial misconduct issues developed after these formal charges were filed.  Quoting from a recent editorial in the Miami Herald about the Justice Department case against former Alaska Senator Ted Stevens, the judge noted that, “The job of prosecutors is to obtain justice, not merely secure convictions.” He granted Shaygan full relief under the Hyde Amendment and the government was ordered to reimburse the defendant all of his fees and costs from the date of the filing of the superseding indictment, an amount more than $1,074,300. When adjusted as required by the Hyde Amendment, the U.S. paid a total award of $601,795.88 for attorneys’ fees and other litigation expenses. The judge also enjoined the U.S. Attorney’s Office for the Southern District of Florida from engaging in future witness tampering investigations of defense lawyers and defense team members in any ongoing prosecution before Judge Gold without first bringing such matters to his attention in an ex parte proceeding. The U.S. Attorney also had to report his efforts towards enhanced supervision of his attorneys and all changes to the “taint wall” policies within the USAO and the DEA.

In early 2008, the government filed a 23-count indictment against Dr. Shaygan alleging that he distributed and dispensed controlled substances outside of the scope of professional practice and not for a legitimate medical purpose. About this same time, the doctor’s defense team participated in an acrimonious criminal trial involving another defendant where AUSAs Cronin and Hoffman served as prosecutors. The defendant in that first trial was acquitted of all charges. Shortly thereafter, the AUSAs filed a complaint alleging that the first defendant engaged in witness tampering. Following a meeting attended by the defense team, the AUSAs, and senior members of the USAO, that complaint was dropped without an indictment. Thereafter, relations between the AUSAs and the Shaygan defense team were increasingly strained.

During the summer of 2008, AUSA Cronin warned Shaygan’s lead attorney that pursuing a suppression of evidence motion in the doctor’s criminal case would lead to a “seismic shift” in the matter. Cronin did not elaborate on what he meant by the phrase “seismic shift.” Judge Gold later concluded that it was a threat of action beyond the boundaries of a good faith prosecution of the case. The threat was a harbinger of worse conduct to come. The prosecutors, it seems, were worried about the defense team learning information from key government witnesses that could derail the prosecution’s case. That information was eventually revealed during the course of Shaygan’s trial.

At the trial, one witness, Ms. T, was called by the government in its case in chief. During the government’s examination, she denied making certain statements that were attributed to her in a DEA report. Importantly, that report had never been turned over to defense counsel pursuant to a Brady request. AUSA Hoffman attempted to impeach the witness with statements contained in the report. Judge Gold later concluded that T’s testimony was more credible than the statements attributed to her in the DEA report.  T testified that a DEA Agent named Wells “tried to put a negative spin on my statements,” during the course of an interview he had earlier conducted with her and “kept trying to put words in my mouth.” Wells implied that T was addicted to pain killers and did favors for Shaygan in return for prescription drugs. T, however, needed medication for legitimate health needs. She had nothing but positive things to say about Shaygan as a person and as a doctor. Judge Gold rejected the prosecution assertion that T made a “very serious charge” to Wells that a defense investigator attempted to intimidate her by telling her that the prosecution was planning to portray her as a drug abuser at the trial.

The DEA report of T’s interview was not turned over by Wells even though a specific order was entered saying that all such reports be provided for in camera review prior to the commencement of the trial. Judge Gold rejected the notion that Wells misunderstood the order and that he and Cronin never discussed it. The failure to turn over the report, as well as other DEA reports, was made in bad faith because the report revealed that another government witness, V, had recorded a conversation that he had with the defense investigator. This information would have led to the disclosure that V acted as a confidential DEA informant. Cronin and Hoffman knowingly failed to bring to the Court’s attention that V had made the recordings of the defense team before V testified as a witness at trial. Tellingly, Cronin purposefully steered clear of mentioning the tape in his questioning of V on direct examination. Cronin also did not disclose that he knew another government witness, C, had agreed to make recordings and was cooperating with Wells. Even after C gratuitously stated on cross-examination that he had recorded a conversation with a member of the defense team, Cronin did not disclose any Brady information to the Court or the defense. Cronin said at the sanctions hearing that he determined that recording the defense team was an appropriate way to investigate the possibility of witness tampering. AUSA Deputy Chief Juan Antonio Gonzalez had permitted Cronin to commence the collateral investigation notwithstanding the fact that. Gonzalez was obligated to instruct Cronin, as lead trial attorney, to cease and desist with this collateral matter based on office policy. This policy provided guidance for prosecutors regarding potential investigations of attorneys in order to avoid “a public perception of animus toward the attorney.” Judge Gold eventually concluded that there were insufficient facts for the U.S. to proceed in good faith on a collateral prosecution for witness tampering.

At the sanctions hearing, AUSA Karen Gilbert could not explain why, as head of the narcotics section, she could not legally instruct DEA to “wall off” Wells from the witness tampering investigation. It was Cronin, not Gilbert, who authorized Wells to have V and C record their calls with the defense team, in spite of the fact that Wells was walled off from speaking to Cronin about the collateral matter. Judge Gold felt that Cronin intentionally desired Wells to participate in the collateral proceedings. The judge was not persuaded by Cronin’s claims that he did not think Wells’ participation violated the “taint wall.” Judge Gold saw Cronin is a “bright and sophisticated” prosecutor who well understood the implications and benefits of continuing his regular contact with Wells as lead agent while the collateral investigation was proceeding.

Wells advised Gilbert that V had made a recording in early December. Gilbert told Wells not to discuss the substance of the tape with other agents or members of the trial team, but Wells had already informed Cronin. Cronin and Hoffman also called Gilbert and told her a recording was made. The call did not raise a red flag with Gilbert, even though she had instructed Cronin and Hoffman not to have further involvement in the collateral investigation. Gilbert told Wells that even though there was no intimidation or any effort to tamper with the witness by the defense investigator evidenced on the tape, she wanted to continue investigating the allegations. Gilbert never considered whether V’s tape had to be turned over to the defense in light of Brady . When Gilbert became involved in a murder trial, she assigned AUSA Dustin Davis to be the point of contact on the collateral investigation.

In February, 2009 Cronin and Hoffman called James P. Brown, the DEA Special Agent who had replaced Wells the month before, to make him aware of the commencement of the Shaygan trial on February 17, 2009. The call violated of the “taint wall” protocol. When Brown knew the trial date, he was effectively advised that he had eight days to conclude his collateral witness tampering investigation. Interestingly, Cronin never mentioned this call to Brown in no affidavit that he filed in anticipation of the sanctions hearing. Judge Gold later ruled that Cronin and Hoffman contacted Brown for the bad faith purpose of seeking to disqualify the defense lawyers for a conflict of interest immediately prior to the trial. Delaying the trial would have been “catastrophic” in the judge’s view. Shaygan was already having psychological problems, aggravated by his strict home detention and electronic monitoring, and appointing new lawyers and investigators would have been very costly.

At some point in the Shaygan case, Gilbert disclosed to the Court that a defense team investigator and attorney were recorded by V and C. She made the disclosure after C testified to the existence of a second recording in open court. Judge Gold found that the U.S. did not come forward in good faith until its hand was forced by C’s testimony. The judge was aggravated that Cronin and Hoffman casually discussed C’s revelations in a restaurant with Gilbert, but did not immediately disclose the situation to the Court once it occurred. The judge opined that Cronin and Hoffman may have been bragging to their colleagues as to what they got away with. Ultimately, Judge Gold ordered that affidavits be filed under oath by anyone who had knowledge of the situation. He ultimately reserved ruling on a defense motion to dismiss the indictment and permitted the defense to re-cross V and C. He also gave the jury an instruction that the re-cross was occasioned by government misconduct.

Judge Gold held that Cronin’s conduct constituted unethical behavior not befitting the role of a prosecutor. Cronin’s ill-will and animus toward the defense counsel led to the filing of the superseding indictment, which prolonged Shaygan’s house arrest and created additional litigation expense, and an unfounded and unnecessary collateral investigation.  The judge noted that the Eleventh Circuit has held that a defendant is deprived of her Sixth Amendment right to competent counsel where her counsel is under investigation by the USAO at the time of the trial. United States v. McClain , 271 F. 2d 1457, 1463-64 (11th Cir. 1987) (overruled on other grounds). Judge Gold said that Cronin and Hoffman’s failure to bring the existence of the collateral investigation to the Court’s attention was an, “egregious abdication of their ethical obligations.”

He ruled: “In sum…Cronin as aided by Hoffman, exhibited a pattern of ‘win- at- all- cost’ behavior in the conduct of this investigation that was contrary to their ethical obligations as prosecutors and a breach of their ‘heavy obligation to the accused.’”

United States v. Ali Shaygan , No.: 08-20112-CR-Gold/McAliley (U.S. District Court, Southern District of Florida April 9, 2009).

(Mike Frisch)

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Is a public reprimand enough? After all, the Hyde Amendment award comes out of your and my pockets and not their pockets. They deserve more than a slap on the wrist.


Posted by: FixedWing | Jun 4, 2009 10:58:53 AM

Wow, this is very sad to see. It sometimes seems like the role of prosecutor has strayed so far from the path of justice, I don't think it's something I could do whilst continuing to maintain that I was an ethical person, never mind in terms of my professional life.

Posted by: Tamper Proof Tape | Feb 8, 2011 4:38:19 AM

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