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August 29, 2009

Federal prosecutors again found to have committed severe misconduct

This article from the Chicago Tribune, headlined "Prosecutorial misconduct seen in drug trial: Witness allowed to testify falsely, federal Judge Joan Lefkow rules," reports on yet another disturbing case of federal prosecutorial misconduct emerging from a prominent US Attorney's Office.  Here are the basics:

A federal judge has found that a prosecutor in U.S. Atty. Patrick Fitzgerald's office committed prosecutorial misconduct by allowing a government witness to testify falsely in a drug conspiracy trial that resulted in the convictions of four defendants in March.

In a 27-page ruling issued Wednesday, U.S. District Judge Joan Lefkow ordered a new trial for the four on some counts, including the key conspiracy charge.  But she refused to dismiss multiple other counts, meaning each faces sentencing for those convictions....

At trial, the prosecution's case relied in part on witness Senecca Williams, who testified as part of a plea agreement with the government.  Lefkow described him as a key witness for prosecutors because he helped prove the elements of the conspiracy charge against the four defendants -- Rondell Freeman, Brian Wilbourn, Daniel Hill and Adam Sanders.

Leonard Goodman, the lawyer for Wilbourn, said the defendants and Williams were facing sentences of 20 years to life in prison on the conspiracy convictions.  But Williams' deal called for only a 5-year sentence. "Everybody knows these witnesses will lie, saying whatever the government wants them to say to get their deals," Goodman contended. "The only difference is that in this case we happened to catch one."

Under questioning from prosecutors, Williams testified that during late 2002 and early 2003, he witnessed Wilbourn packaging narcotics and talking about drug business with Freeman at a Granville Avenue apartment sometimes known as the "penthouse."  But the government ultimately conceded that Wilbourn was behind bars from April 2002 until September 2005 and that Freeman did not even live in the Granville Avenue apartment in 2002.  That meant Williams' testimony could not be true.

But, Lefkow wrote, when defense lawyers confronted Williams with the fact that Wilbourn was actually in jail when Williams said he witnessed the conspiracy, one of the prosecutors -- Lefkow does not identify whom -- objected and said, "That's not true." Williams never conceded on the witness stand that he was lying or that he was mistaken, according to Lefkow....

Prosecutors argued that they did not knowingly use perjured testimony. But Lefkow wrote that she could not accept prosecutors' "glib assertion" that Williams was only mistaken in his testimony. What's more, she said it was "beside the point" whether Williams was lying or mistaken. "It is well established that the prosecution may not use testimony that it knows to be false," Lefkow said. And, she wrote, the government had ample reason to know that Wilbourn had been locked up when Williams said Wilbourn was free.

Thanks to this post at the WSJ Law Blog, everyone can read the full opinion from Judge Lefkow at this link.  I am already looking forward to what the new Snitching Blog will have to say about this case.

August 29, 2009 at 10:14 AM | Permalink

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Even worse, this is at least the second misconduct finding against this prosecutor in the recent time period, she was named in Posner's opinion in U.S. v. Farinella for having made improper closing arguments. That defendant was aquitted on appeal due to there having been no actual crime. It's scary thinking this woman is put in charge of serious cases as well. Hopefully her superiors take this opportunity to send her packing.

Posted by: Soronel Haetir | Aug 29, 2009 12:44:24 PM

The Supreme Court has granted judges, legislators, and prosecutors absolute immunity from liability for acts done in their job. There is no justification for such immunity. It is not accepted around the world.

It originated with Henry of Bracton who justified sovereign immunity with the King's speaking with the voice of God. He worked for Edward I (Longshanks in Braveheart). Edward has a portrait in the House of Representatives gallery of great law givers. He massacred the Welsh, the Irish, the Scot. He was French, as was Henry. This idea is foreign and based on a psychotic delusion.

It has an intended toxic effect. Liability shrinks an enterprise, and immunity grows it. So the common law granting of immunity is unauthorized industrial planning. That is a legislative function. Court dealt immunities violate the separation of powers and the Constitution. The result? Explosive growth of valueless, immune parasites, such as judges, lawyers, prosecutors and government in general. Rapid shrinkage of productive enterprises such as manufacturing. There was even a natural double on-off natural experiment with the KKK that held up that idea.

If the justification is to protect the immunized from harassment, time wasting on litigation and intimidation, then the local welder deserves the same or more than the judge. The judge is far more careless, incompetent, and damaging to our economy. The welder likely has 97% success rates, or would go out of business just from people wanting refunds. The judge? Nothing the judge does has any scientific validation. The sole validation of this cult criminal on the bench is at the point of a gun. Try to get any judge accountability, people with guns will stop you.

Also, the Supreme Court is all lawyers. Should people be allowed to deal their own kind a huge benefit in the form of immunity for lawyers? The conflict of interest cannot even be remedied in a legislature. How does it look if the Supreme Court is all welders, and welders, and no other profession, receives "absolute" immunity? A bit shady.

I am pushing for what is for now an innovation, but has been in the law for decades. The innocent defendant should hire a second lawyer to terrorize the defense lawyer into deterring the adverse lawyer with personal legal attacks within the trial. There is no recourse outside the trial.

In the case above, a motion would be made demanding a mistrial, and all legal and court costs from the personal assets of the prosecutor. The defense lawyer owes her his job, and will never deter her. The client may come and go, fire him, and get replaced in a minute. The adverse lawyers gets deterred, and the defense lawyer loses his job. That is why the second personal lawyer should be pit bull type legal malpractice specialist. The defense lawyer should be forced to choose between his job survival and that of the prosecutor's.

Posted by: Supremacy Claus | Aug 29, 2009 1:38:10 PM

There is really a very simple solution to all of this. Whenever a defendant is found to have been wrongly convicted, have the prosecutor(s) who secured the conviction serve the balance of the defendant's sentence.

The article above is not an isolated incident . It is only noteworthy because it is one of the rare cases where federal prosecutors are actually caught suborning perjury. Subornation of perjury is par for the course for federal prosecutors.

Posted by: barry60x | Aug 29, 2009 9:13:46 PM

"Everybody knows these witnesses will lie, saying whatever the government wants them to say to get their deals," Goodman contended. "The only difference is that in this case we happened to catch one."

Truer words are seldom spoken.

Are we supposed to pretend this case was an anomoly?

Andrew Napolitano said it well in his book, Constitutional Chaos: If defense attorneys were ever caught doing what prosecutors do routinely, exchanging things of value (liberty) for favorable testimony, they'd be packed off to prison.

Posted by: John K | Aug 30, 2009 6:58:24 PM

The AUSA in this case (Rachel Cannon) is different than the one in the Farinella case (Juliet Sorenson).

Which leads to my next point-- which is that it's more about the office and the way that the USAO pursues cases than it is about the choices made by individual AUSAs.

Posted by: Pedro | Aug 30, 2009 10:08:45 PM

I think I need another cup of coffee... because SC's post in this thread actually made some sense to me.

Posted by: Observer | Aug 31, 2009 11:03:31 AM

The federal prosecutors may be immune from civil and criminal liability for their acts, but that doesn't mean that they have immunity from attorney discipline, from the Department of Justice, at least.

The DOJ has been impotent lately in this department, but it certainly could take action if it wished to sanction these lawyers. The court could also take away the right of these lawyers to practice in its federal court.

Posted by: ohwilleke | Aug 31, 2009 10:09:59 PM

Yes, the DOJ has the power-- but as you mention, it doesn't do anything as a general rule.

The N.D. Ill.'s USAO hasn't even progressed in its investigation of Sorenson, and Posner's opinion came down months ago.

I wouldn't hold my breath.

Posted by: Pedro | Aug 31, 2009 10:34:15 PM

Notably, the situation is only marginally better for the defendants. All remain convicted of serious felonies.

Two no longer have crack cocaine charge convictions, but still have multiple convictions for drug dealing, and a charge each of felon in possession of a firearm (which carries a mandatory minimum).

One isn't convicted of conspiracy to distribute 50 grams plus of crack, but is convicted of distributing 5 grams plus of crack, which carries a mandatory minimum (even after Booker).

One isn't convicted of conspiracy to distribute 50 grams plus of crack, but is convicted on multiple counts of drug dealing and dealing 50 grams plus of crack personally, which carries a long mandatory minimum (even after Booker).

Realistically, no defendant comes out with less than five years in prison, and several will likely be sentenced to quite quite a bit more than that. The judge has more lattitude to sentence, but only modestly so. The sentence difference may be pretty modest, perhaps a year or three. This also makes a civil action against the feds for this constitutional violation a pretty modest concern.

Rachel Carson, the prosecutor called out by name (and this is on a post-trial motion by a trial judge of a very recent trial), is probably in the middle of a career as a federal prosecutor. Newbies don't to be lead counsel in five week major drug conspiracy trials. More experienced prosecutors get to take down sitting politicians, white collar crimes and cases involving dead bodies or kidnappings. Her career could very well be over, and her prospects of a lucrative lateral to the private sector as a litigator may even be compromised.

The cooperating witness, by the way, probably is not going to get the hoped for cooperation benefit at sentencing, may face trial for prejury, and is likely useless as a future snitch.

One also wonders how much law enforcement was complicit here.

Posted by: ohwilleke | Aug 31, 2009 10:43:52 PM

Here is another poster boy.

U.S. District Judge Clay D. Land said he was “shocked” by Assistant U.S. Attorney Jason M. Ferguson’s admission that he had lied. See WSJ Article http://tinyurl.com/mbnvzs

Why should anyone be shocked? Mr. Ferguson lies to defendants every day of his life. Ask any attorney in the area. It is simply the way things are done in his world. Get a conviction by any means and lies promising various considerations connected to a plea agreement are SOP. The lie is backed by the full weight of the threat of the maximum penalty allowed by the sentencing guidelines. The carrot and stick but the carrot is never produced, only the stick. US Attorney Patrick Fitzgerald has pointed this out. Ferguson and others, who join him in his lies, including probation officers, are among the most dishonorable, self-serving individuals on the planet.

Posted by: HadEnough | Sep 2, 2009 1:04:56 PM

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