Wednesday, February 24, 2021

What will the new SDFLA U.S. Attorney do about prosecutorial misconduct?

 That's a question that should be asked of all potential candidates for U.S. Attorney.  In SDNY, for example, the office has dismissed cases where there is misconduct, even after a conviction (unlike here).  From the WaPo:

Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.

The embarrassing revelations about what many consider the U.S.’ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.

The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.

While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.

The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.

The whole article is worth a read as it details incredible, but not uncommon, misconduct. The New York judge was upset with the government and urged OPR to investigate.  We know what OPR will do.  But at least SDNY dismissed after the jury verdict of guilt.  That's not true in other officers or especially here, where there is a long line of misconduct cases, which the office tries to defend even after misconduct is exposed.  It will be interesting to see if that changes under the new administration.  

So, hopeful U.S. Attorney candidates -- feel free to email me your plan to address prosecutorial misconduct and I will post your answer in full.

In the meantime, we still need judges to check prosecutors when they cross the line.  


Anonymous said...

Prosecutors guilty of proprietorial misconduct should be prosecuted for criminal misconduct. Simple as that. Skin in the game.

Anonymous said...

Could a prosecutor lying to a defense attorney be a material misrepresentation in "any matter within the jurisdiction of the... judicial branch" and thus a felony under section 1001 of title 18? DOM? Anybody know?

Anonymous said...

Prosecuting one lawyer for lying to another lawyer? We don't have that many jails.

Anonymous said...

In other news, the gymnastics could who was supposed to be the next chapter of the Larry Nassar saga decided to close it abruptly.

Unknown said...

11:44, prosecutors who are guilty of misconduct can already be prosecuted, if the evidence proves criminal intent. Problem is that even a prosecutor is entitled to a defense. Reasonable doubt is such a pesky thing.

Anonymous said...

@7:56 - forgive me for laughing. "Federal prosecutors in New York acknowledged telling a 'flat lie' to a criminal defendant’s legal team . . ." The Judge already found the prosecutors made a "deliberate attempt to obscure" the truth.

Will there be any prosecutions? What more do you need?

These prosecutors should be disbarred at the least and should probably see the inside of a jail cell. A couple of months in a camp seems appropriate.

How many people who have done the same in, for example, the handling of mortgage loan applications have been convicted of fraud and incarcerated?

@4:15 - This is not [un]civil litigation where the parties are arguing over whether or not MacDowels infringes on McDonalds (you see, they've got the Big Mac, and we've got the Big Mic). This is a matters of actual importance.

Prosecutors, like the police, bear a special and heightened responsibility to the rule of law. When prosecutors and police violate the rule of law, their consequences should be HARSHER than the consequences to the general public because of the special position of trust and responsibility that prosecutors and police hold. To use a term that the [un]civil litigators will understand, prosecutors and the police our like fiduciaries who take on a special duty with heightened consequences when they breach that duty.

the trialmaster said...

The prosecutors lies and unethical conduct with a win at all costs has been going on for over 45 years. The courts ignore imposing sanctions on them. Its not going to change until the courts and judges get touch with them. But many Judges are former prosecutors themselves so good luck as they probably did it themselves before taking the bench.

Anonymous said...

Is that local case wrapped up yet?

Last we heard the gov’t admitted the false testimony to the court, but said it didn't matter.

Thats one hell of a precedent right there.

Anonymous said...

On the SDFL case under Gayles, what is the statute of limitation for Suborning Perjury? Its been 4 1/2 years..

The USA nominee should just drop it out of embarrassment for the office.

Tattoodtiger1 said...

Treat them like any other lying lawyer, after due process is given.

How about Judges that rule after someone connected to defendant reaches out to them before a sentencing?? Can we prosecute the fed judge too??