April 10, 2009
It's Not Just the Stevens Case - DOJ Needs A Better Compliance Program
A "not guilty" verdict was returned on a drug case in Miami, but what happened during the investigation and prosecution of this case has now resulted in an award of $601,795.88 under the Hyde Amendment. The Hyde Amendment allows for attorney fees when a "prevailing criminal defendant" can demonstrate "that the position the government took in prosecuting him was vexatious, frivolous, or in bad faith." (see Order, infra, citing U.S. v. Gilbert).
Hon. Alan S. Gold, in the Southern District of Florida, issued an Order awarding these attorney fees and enjoined the US Attorneys who practice in that court from "engaging in future witness tampering investigation of defense lawyers and team members in any ongoing prosecution before [this judge] without first bringing such matters to [the judge's] attention in an ex parte proceeding." The judge also issued a public reprimand against the US Attorneys office and specifically 2 AUSAs. And it does not end there, as the judge also makes it clear that a disciplinary body needs to review this matter. (Court's Order - Download 08-20112 (Shaygan) Prosecutorial Misconduct FINAL )
The judge presents a thoughtful Order that gives credit to the USA's office for taking "immediate efforts to investigate" this matter when it came to light. After all, the taping of defense counsel and a defense investigator, by government informants, does present serious concerns. The failure to disclose this material is more problematic. The judge tells of Brady, Giglio, and Jencks issues in this case.
Hon. Alan S. Gold could not have said it better when he stated,
"It is the responsibility of the United States Attorney and his senior staff to create a culture where 'win-at-any-cost' prosecution is not permitted, Indeed, such a culture must be mandated from the highest levels of the United States Department of Justice and the United States Attorney General. It is equally important that the courts of the United States must let it be known that, when substantial abuses occur, sanctions will be imposed to make the risk of non-compliance too costly."
DOJ, the enforcer against corporate misconduct and the one who requests the appointment of monitors in deferred prosecution agreements, may seem to be having its own issues. One has to give the department credit for recognizing their lack of compliance in the Stevens case and agreeing to dismiss it. Likewise one has to give the government credit in this recent Miami case, in that the DOJ stated that they "made serious mistakes in a collateral investigation that was an offshoot of this case and stands ready to pay the additional attorneys' fees and costs incurred by the defendant as a result." Clearly the new AG Holder is taking a strong position against prosecutorial misconduct and sending that clear message to those in his office, something that is wonderful to see happening. But if this were a corporation that had committed misconduct, would these acknowledgments and payment be sufficient? The deferred prosecution agreement would require monitoring, and there would be a need to assure that there was now compliance. Mind you, I am not suggesting that a monitor in another deferred prosecution agreement case, John Ashcroft, be appointed here. But the concern is that both of the cases mentioned here had attorneys who could present these claims. My concern rests with the many cases that might have similar claims of misconduct but no attorney to bring the issues to light.
In the News & Around the Blogosphere
John Pacenti, Daily Business Review, law.com, Feds Ordered to Pay More Than $600K in Legal Fees for Misconduct in Fla. Drug Case (more on this later today)
Carrie Johnson, Washington Post,Holder Begins Justice Revamp -Personnel Moves Opt for Experience Over Political Ties; Joe Palazzolo, BLT Blog, Holder Names New OPR Chief
DOJ Press Release, Three International Airline Companies Agree to Plead Guilty to Price Fixing on Air Cargo Shipments - Cargolux Airlines International S.A., Nippon Cargo Airlines Co. Ltd. and Asiana Airlines Inc. Agree to Pay a Total of $214 Million in Criminal Fines
Washington Post, Holder Defends DOJ Following Stevens Dismissal
Mike Scarcella, BLT Blog, After Case Tossed, Stevens' Bar Licenses Remain Clean
Ashby Jones, WSJ Blog, Nacchio, Reaching for Another Lifeline, Heads Back to the Tenth Circuit
April 5, 2009
More on Stevens - Two Court Orders
The government filed a motion to dismiss the case against Ted Stevens, former senator from Alaska.(see here and here). And I immediately congratulated our new Attorney General on being a true "minister of justice" in a matter that appeared to warrant correction. As noted by Solomon Wisenberg over at Letter of Apology here, there are many lessons to be learned by prosecutors - most of all regarding the 302s, statements produced by the FBI when they interview witnesses. Wisenberg notes that when exculpatory information is obtained from a witness, in whatever form, that information is required to be turned over to the defense.
But it looks like someone else also wants it - the judge. Judge Emmet G. Sullivan entered two orders today (Sunday) - both sua sponte. He asks the government to provide by April 6th at 10:00 a.m. "all material gathered post-trial and produced to the defendant." Additionally he also asks the government to produce some materials including "exculpatory evidence, witness interviews, 302s, and affidavits" regarding one witness interview.
A second Order of the court requires all "government agencies involved in the investigation and/or prosecution of Senator Stevens [to] immediately preserve any and all documents related to this matter, including but not limited to emails, notes, memorandua,"...etc.
Gosh, wouldn't this all be simpler if we just went to videotaping all interviews. In this technology age it sure would help to have everything on playback.