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December 22, 2009

Are federal prosecutors acting worse or are judges just starting to notice?

Two new and notable stories of federal prosecutorial misconduct have caught my attention the last few days. And these headlines discussing these stories prompt the question in the title of this post:

The particulars of both of these stories of prosecutors gone wild could likely justify a full book and not merely a few blog posts.  But rather than focus on the particulars here, I wanted to pose the broader question of whether the rash of these kinds of stories suggests that prosecutorial misconduct is on the rise or if, instead, judges are just becoming more observant of (and more likely to call out) prosecutors acting badly.

I am inclined to speculate that the answer to the question of this post is "a little of both."  I fear that lately prosecutors are a bit more likely to push the ethical envelope, and I hope that lately judges are a bit more likely to call prosecutors out for their transgressions.

December 22, 2009 at 05:33 PM | Permalink


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There's also how much more media coverage is available. You are no longer limited to your own locale and whatever catches the eye of national news outlets.

Posted by: Soronel Haetir | Dec 22, 2009 6:27:26 PM

Here's an even more prominent case in which the fascist feds -- under George Bush, naturally -- had the audacity to target a high-profile criminal defense and civil rights lawyer. Will they never learn?


Posted by: Bill Otis | Dec 22, 2009 9:21:53 PM

This is really standard operating procedure at this time. It is difficult to pay qualified Criminal Defense Attorneys now because assets are frozen and attorneys take fees at their own risk. The first one I was very familiar with was Hallinan in San Francisco when he represented Ciro Mancuso. Since that time it seems there are criminal attorneys facing this problem monthly.

The difference in these cases is that the Judge addressed it. Now, I find it interesting that the Judge said that accepting drug money for fees and hiding the funds is not a crime. This would be news to the attorneys who have received sentences for this.

The other thing that is interesting is that the person who paid the price for the prosecutors misconduct was the witness - not the prosecutors. You may say that the witness is paying the price because he said what the prosecutors told him to say, but he is in a hopeless situation and a fatal double bind.

Posted by: beth | Dec 22, 2009 10:24:09 PM

One sub-issue that has not yet been determined in either one of the profiled cases is whether the Judge will award "Hyde Amendment" attorneys fees against the U. S. Attorney's Offices involved. Althouth the late Representative Henry Hyde got Congress to pass a law about fifteen years ago, to date no defendant has ever satisfied the standard.The Hyde Amendment provides for the Government to have to pay a criminal defendant's attoreny's fees and expenses of litigation if the prosecution terminates in his favor and it can be shown that the prosecution was "substantially frivolous" or "substantially vaxatious". I believe these two defendants will satisfy the statutory standard. Interestingly, the Hyde Amendment provides that the attorney's fees and expenses must be paid from the budget of the U.S. Attorney's Office that prosecuted the case, which are not subject to being reimbursed by the Justice Depratment or the U.S. Treasury.

Posted by: Jim Gormley | Dec 23, 2009 12:09:54 AM

The problem Beth described above(criminal defense attorneys being able to accept case payments from drug dealers, without risk of being prosecuted themselves), was recently resolved in the criminal defense bar's favor, two weeks before Mark Chelnutt's trial in Columbus, Georgia. See, United States v. Velez, et al., 2008 WL 5381394 (S.D.Fla. 12/22/2008), affirmed, 2209 WL 3416116 (11th Cir. 10/26/2009), interpreting the criminal defense lawyer exemption set forth in 18 U.S.C. section 1957(f)(1). In fact, Judge Land invited the Government to dismiss its case against Mr. Chelnutt prior to trial, in light of the Velez opinion. Judge Land told the Government he would be instructing the Jury based upon the Velez opinion, and he didn't see how they could possibly prevail in light of it. At trial, Judge Land personally questioned the Government's star witness, Mr. Shelnutt's former criminal defense drug dealing client. He asked the man what all the money had been for. The man said to pay criminal defense fees. The witness pointed at the Government's lawyers while being questioned by Judge Land and said, "I have told them this from the beginning." Judge Land asked if one cent of the money was for anything other than the payment of criminal defense fees, and the witness said no. Judge Land took the defense's Motion for a Rule 29 Judgment of Acuittal under advisement and let the case go to the Jury, which acquitted him outright. The Government cannot appeal an acquittal by the Jury, but it could have appealed the Judge granting the Rule 29 Motion. Presumably Judge Lan would have granted the Rule 29 Motion if the Jury had not acquitted Shelnutt on all counts. This was an extraordinary victory for the criminal defense bar. I anticipate Judge Land will grant Mr. Shelnutt an unprecedented award of Hyde Amendment attorneys fees against the Middle Dstrict of Ga. U.S. Attorney's Office.

Posted by: Jim Gormley | Dec 23, 2009 12:36:55 AM

All appalling self-dealt immunities and discretions should end by a statute or preferably, by an Amendment.

All innocent defendants should demand an all out counter-attack on these cult criminals. It should start with total e-discovery. Any defense lawyer refusing to demand that should be sanctioned, enjoined, and sued for legal malpractice. Any judge blocking it should get the same.

Both the judge and the defense lawyer depend on the acting up of the prosecution for their livings. Thus intra-trial sanctions will never happen nor suffice if they ever do. All lawyers should be subject to legal malpractice claims by adverse third parties. These should not be allowed if frivolous, retaliatory, or to harass. They should be accompanied by certificate of merit signed by a prosecutorial expert. "Dressing down," they laugh at. "Paying up," they do not laugh at.

Posted by: Supremacy Claus | Dec 23, 2009 3:37:58 AM


10-part series done by the Pittsburgh Post Gazette on misconduct in federal prosecutions. Made a really big impact, didn't it?

Posted by: Michael Connelly | Dec 23, 2009 8:18:31 AM

If lawyers justify torts by their benefit for safety, product improvement, and compensation of the victims of carelessness, why do they virtually exempt their profession from these great benefits?

Someone give me a single good reason.

If you say, the judge is too busy to be sued, that is a lie. He is a lazy, good for nothing, slacking government worker. The welding business owner with his 400 permanent lawsuits is far busier. His service is far more important to the public than that of the worthless cult criminal on the bench.

Posted by: Supremacy Claus | Dec 23, 2009 9:45:42 AM

There are so many cases of prosecutorial misconduct, (continuing to the present day), one cannot begin to list them all. Just a sampling off the top of my head: U.S. v. Price 566 F.3d 900 (9th Cir. 2009) (prosecutor's failure to disclose criminal history of its star witness in defendant's firearm possession trial, including three arrests for theft, a report of theft by deception, and three convictions for false-tag violations, was prejudicial and in violation of due process); U.S. v. Kojayan 8 F.3d 1315 (9th Cir. 1993) (prosecutor's statements indicating that reason witness did not testify was because he had invoked privilege against self-incrimination, when government had cooperation agreement with witness pursuant to which witness agreed to testify truthfully, constituted prosecutorial misconduct of prejudicial nature which violated due process and required reversal of convictions); Walker v. City of New York, 974 F.2d 293 (2d Cir.1992) (prosecutors persisted in prosecuting a defendant-and lied and concealed evidence in the process-even though they were aware of his probable innocence—after 20 years of incarceration, court finds that the district attorney's failure to train or supervise her employees as to “such basic norms of human conduct [as] the duty not to lie or persecute the innocent” )

Posted by: anon 14 | Dec 23, 2009 10:16:14 AM

If you represent a druggie, there's a good chance you're getting paid with drug money, which is contraband ab initio and thus subject to forfeiture. This has been known for at least 20 years, CAPLIN & DRYSDALE V. UNITED STATES, 491 U. S. 617 (1989).

Posted by: Bill Otis | Dec 23, 2009 12:27:57 PM

I have watched the trial of Mark Shelnutt with great interest hoping that the actions of the less than honorable prosecutors, specifically AUSA Jason Ferguson, of the Middle District of Ga., would finally be illuminated by the bright light of truth. Something that the lying Mr. Ferguson is not very familiar with. His is a win at all cost, anything goes approach and the facts have little to do with anything if it gets between Ferguson and his desire to hang another scalp on his belt.

The actions by Ferguson regarding Mr. Shelnutt are certainly over the top but in magnitude pale in comparison to the everyday actions of he and his conspiring colleagues, including some probation officers, when the defendant does not have the resources to fight back as Mr. Shelnutt did. The use of the broad "net" of a "conspiracy" charge allows the self serving prosecutor to pull almost anyone he wishes into his web where he then applies the tactic of making "sweetheart deals" with co-defendants to further his relentless pursuit of a win. Attorneys' in the district, if asked, will tell you that Ferguson is not to be trusted, that any "promises" that he makes will seldom be fulfilled and his goal for all is imprisonment. I have seen him in action and agree with this assessment. His actions in the Shelnutt case may have been guided and directed from the "top" but if so he learned his lesson well long before the Shelnutt case came to the forefront.

By no means am I trying to deny the involvement of the people that Ferguson and his colleagues go after and many if not most are absolutely guilty of the charges and should suffer the full penalty required by law if the case against them is built and presented by legal, ethical, truthful methods. My problem with the actions of Ferguson and crew is his use, or more to the point the mis-use, of the power of the federal government to coerce and intimidate anyone even remotely connected to the issue at hand into accepting a plea agreement to charges far beyond any real involvement in the matter. His propensity to "promise" confidentiality to the one with little actual involvement and then disclosing the "confidential" information to someone looking at a lengthy prison term coupled with sweetheart plea deals is common practice. He then uses the carefully crafted "testimony" of the second party to "justify" increased charges and to further intimidate the first party into accepting a plea to charges that are far beyond anything justified by actual involvement. Very few have the resources nor the risk tolerance to stand up and fight as Mr. Shelnutt did and because most of these cases are very low profile, they do not get the public exposure and scrutiny that the Shelnutt case did. The resulting federal felony conviction and a lifetime of collateral consequences suffered by those who fall into the web of the less than honorable prosecutor is not justice it is career building with no regard for the lives and families that are destroyed in the process.

Judge Land, IMHO, was wise to let this case go before a jury but I take exception to the statement in his order following the trial (http://www.mainjustice.com/wp-content/uploads/2009/12/Judge-Clay-Land-Order.pdf) in which he says in part: The Court does not seek to publicly embarrass any of these public servants, (speaking of the members of the US Attorney's office) and therefore, the Court does not name them in this Order. They should be named, they should be caused embarrassment, and they should be disbarred at the least.

Ferguson, by his own admission, lied to Shelnutt and participated in additional activity attempting to convict Shelnutt and the truth be damned. He and anyone else who participates in activities of this sort should never be allowed to set foot in another courtroom. How is it considered "Equal Justice Under The Law" when you are guilty of a felony if you lie to a federal officer, just ask Martha, yet it is permissible for a federal prosecutor to lie, manipulate, coerce, fabricate testimony or anything else he feels like doing to secure a conviction and is immune from liability for his actions? Hopefully SCOTUS is about to rectify that situation.

Only the high profile status of this case and the ability of Mr. Shelnutt to stand a fight kept this case from going the way of most of those who do not have the advantages of the knowledge and resources of Mr. Shelnutt. Mr. Shelnutt was found not guilty on all counts, a telling indictment by the jury of the tactics used against him. Unfortunately, the outcome for most of those every day, ordinary people that have fallen prey to the tactics of Ferguson and his colleagues was not so good.

Posted by: HadEnough | Dec 23, 2009 12:36:40 PM

Response to Bill Otis:

In its opinion rendered two weeks before defense lawyer Shelnutt's trial began, the Eleventh Circuit distinguished the Caplin & Drysdale case you cite. The Eleventh Circuit says that Supreme Court case is irrelevant to the exemption/safe harbor from money laundering prosecution for criminal defense lawyers receiving fees that is set forth in 18 U.S.C. section 1957(f)(1). See, United States v. Velez, et al., 208 WL 5381394 (S.D.Fla. 12/22/2008), affirmed, 2009 WL 3416116 (1th Cir. 10/26/2009).

Posted by: Jim Gormley | Dec 23, 2009 4:41:40 PM

Jim Gormley --

I said nothing about prosecution or Section 1957(f)(1). I said drug money is contraband ab initio and subject to forfeiture, whether or not intended for use in paying defense counsel. That is Caplin & Drysdale's precise holding, which the Eleventh Circuit did not (and could not) change.

Posted by: Bill Otis | Dec 28, 2009 3:23:09 PM

Bill Otis -
You comments seem to imply your belief that counsel who are paid with unencumbered funds may be forced to forfeit them if they are "tainted." If indeed that is your belief, then your reading of Caplin & Drysdale is overbroad. To be subject to forfeiture, the funds must be the property of someone convicted of a particular class of offense. The statute also provides a means for the government to obtain a pre-trial restraining order against the forfeitable property of someone charged with such an offense. In the C&D case, the money in question was subject to forfeiture by counsel because of the pre-existing restraining order that prohibited the client from transferring those assets (which order the client ignored in using "frozen" funds to pay counsel). The money was considered to be the client's property (which he voluntarily forfeited in his eventual plea agreement) despite the prior transfer to counsel. Ergo, it was forfeitable. Unencumbered funds paid to counsel (or anyone else) would not be forfeitable under the statute.

Posted by: punchy | Dec 28, 2009 7:26:45 PM

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