Friday, 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.


Attorney Fees, Defense Counsel, Deferred Prosecution Agreements, Judicial Opinions, Legal Ethics, Prosecutors | Permalink

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It's good that the prosecutor's office was ordered to pay $600,000 for wrongful prosecution. However, that office should have to pay the money from their existing budget instead of turning around and sticking it to the taxpayers. The taxpayers didn't misbehave, the prosecutors did. They should have to tighten their belts and lay off employees in atonement for their actions.

Posted by: Larry J | Apr 10, 2009 11:10:12 AM

Dear Ms. Podgor: It is decidedly too early to be passing any credit to the Department. That can happen when the AUSAs are being fitted with shackles and the bright orange jumpsuits that will be their new uniforms. Not before. The Department can get a little more credit when the USA, having provided a successful defense, i.e. "I dint know nuthin' and you can't prove otherwise," is summarily fired for incompetence and has to eke out a living defending parking ticket offenders.

However flippant this may sound, your concern about "Who is watching the watchers?" is not going to be solved until those who engage in such sordid behavior do time, or are canned even if innocent on the reasonable grounds that "Ignorance is no excuse." Otherwise the Justice Department will be as much of a joke as the Treasury Department has become under Tim "I didn't know I was supposed to pay" Geithner.

Flippant cynicism is fun, but it's a sign of powerlessness when it becomes general. That's a worse illness for a democracy even than the attempted framing in this case.

Sincerely yours,
Gregory Koster
(not of CUNY)

Posted by: Gregory Koster | Apr 10, 2009 11:21:46 AM

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.

This is a joke, right? I know the judge means well, but $600,000 is nothing. The government will pay it, and the people who actually did wrong have absolutely no incentive to not do the same thing again. And again.

The judge, if he *really* wants to send a message, needs to hold the attorneys who did this *personally* liable for the money, garnish their paychecks at a 90% rate until it's paid off (don't bother telling me they can't live on 10% of their pay - pizza hut is always looking for drivers) and add punitive damages on top of the straight compensatory damages. Paying just their attorney fees is the same as saying the defendant's life is worth nothing, his lost time is worth nothing, etc.

It's scary to think that this is even being touted as some sort of a "win" for the good guys. It's just not as bad of a loss as it otherwise could have been.

Posted by: Michael Chaney | Apr 10, 2009 12:24:00 PM

"This is a joke, right? I know the judge means well, but $600,000 is nothing. The government will pay it, and the people who actually did wrong have absolutely no incentive to not do the same thing again. And again."

Because the prosecutors' supervisors will be very happy with this and the prosecutors are just aching to get called out again.

Posted by: DM | Apr 10, 2009 8:14:16 PM

As one who was abused by the other probability (once crossing the line transpires - the only question that remains is how often in what manner/ways?) Where we have also witness the Refusal to prosecute for veiled agenda reasons -

I find great joy in the Fact that Court's (the venue of civility) are finally taking the pathway of enforcing Correction.

It is NOT a joke when a Judge stands tall and stipulates to misconduct - of ANY party.

While the receiver of the $600k would argue for more
THE FACT REMAINS a remedy of manifest injustice Arrived!

Glory BE!

That - coupled with the statements that AG Holder made by making the head of the OPR - head of the USA's and appointing a NEW person in OPR makes a broad stroke at a statement.

Let Justice come and please refrain from frowing upon it being insufficient.

For Justice has been greatly lacking!

Posted by: Laser Haas | Apr 10, 2009 8:18:37 PM

Mr. Chaney,

I think your point is well taken -- the individual bad actors aren't likely to feel any monetary pain. I would, however, take issue with the further notion that monetary sanctions on the govt won't influence the behavior of prosecutors. In fact, the threat of incurring large damages does act as a disincentive in many cases. Fee shifting provisions seem to work in other contexts and I see no reason why an invigorated enforcement of the Hyde Amendment wouldn't have a similar effect. Simply put, no one likes to lose and look like an idiot to boot. And if an AUSA is so obtuse that he or she isn't deterred by that possibility, then there's probably no stopping them. If we then add the threat of bar proceedings and criminal contempt, we'd be well on our way to keeping such behavior to a mimimum.

Posted by: anon | Apr 11, 2009 6:29:13 AM

Of key importance - how large are the Bad Faith Acts of the Dept of Justice?

If the new administration fails to address previous bad faith acts - that are currently harming America - does that not also make them duplicitous?

Our system of justice is so illicit that America Press has turned a deaf ear. As previously reported by the Professor here - as remarked by the justice - the Press has a fiduciary duty to help ferrett out cronyism & corruption.

Is there anyone (any National Press forum) - where the leaders thereof take serious the great weight of their responsibility to the American Public?

If we do not make the correction today - the problems will only get worse!

Posted by: Laser Haas | Apr 12, 2009 2:10:22 PM

I think $600,000 plus humiliation will at least get the government's attention. But the judge might consider using his contempt power to fine the lawyers something individually, if he thinks they were really, calculatingly unethical.

I am concerned, though, with the question of whether analogous skullduggery will be uncovered/remedied in the massively disproportionate number of non-white collar cases. In the federal courts, maybe there is a shot that this will happen, as there are at least the federal defenders, who are generally competent and organized, if overworked. But many state courts will presumably continue to run entirely on a prosecutorial "honor system," at least where indigent defendants (the vast majority) are concerned.

Posted by: Anon | Apr 13, 2009 12:19:50 PM

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