Tag Archives: prosecutorial misconduct

Misconduct Rewarded – Update for February 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PROSECUTOR DISCIPLINE WITH A WET NOODLE

Just last week, I had someone tell me he was going to file a 2255 motion just as soon as he filed a bar complaint against those lyin’ prosecutors.

wetnoodle220906Good luck with that. A report last week illustrates the futility of expecting any favorable result from bar complaints against prosecutors.

A decade ago, the District of Columbia Court of Appeals ruled that the U.S. Attorney’s Office violated Brady v. Maryland by not disclosing exculpatory information to the defense during Carl Morton’s and Alonzo Vaughn’s convictions for aggravated assault and assault on a law enforcement officer. It has only taken 10 years for the same court to decide that the two prosecutors responsible should each get a year of probation plus a stern warning not to commit any further misconduct, or they would be suspended from practicing law for six months.

Both Mary Chris Dobbie and Reagan Taylor are still DOJ prosecutors. In 2021, the D.C. Board On Professional Responsibility unanimously recommended that each receive a six-month suspension from law practice. However, the Board “ratcheted down the sanction to probation based on ‘one overriding mitigating circumstance’,” according to a report last week in The Intercept. That circumstance was the “deficient conduct” of their supervisors, Jeffrey Ragsdale and John Roth.

wetnoodle240215Neither Ragsdale nor Roth was subject to any ethics charges or misconduct findings. Roth was later promoted to be inspector general for the Department of Homeland Security. And Ragsdale? He’s now in charge of the DOJ Office of Professional Responsibility, which oversees investigations into alleged prosecutorial misconduct.

The Intercept, Prosecutors Buried Evidence and Misled the Court. Ten Years Later, They Got a Slap on the Wrist. (February 5, 2024)

– Thomas L. Root

Prosecutor Made Example Of For Making Example of Defendant – Update for August 20, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

4TH CIRCUIT SENDS PROSECUTOR MESSAGE ABOUT SEX CRIMES AND HYPERBOLE

Charles Plymail was convicted of sexual assault in 1993 by a West Virginia state court. As the 4th Circuit put it last week, “The details of his conviction are disturbing. What is also disturbing is how long it took for him to receive a decision on his direct appeal: over twenty years.”

After his appeal was finally denied, Chuck filed a habeas corpus that eventually became a 28 USC § 2254 (which is the statute that permits state prisoners to go to federal court over unconstitutional state convictions). The federal district court rejected his claims. But last week, the 4th granted Chuck relief based on the prosecutor’s improper statements.

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The trial evidence was mostly “he said, she said,” although the victims’ testimony was compelling. During closing arguments, Chuck’s attorney discussed the difficulty of disproving rape charges, focusing on how easy it was for an “angry, offensive” woman to harm “innocent… males.” He warned the men in the jury: “This is dangerous, gentlemen… it’s dangerous to even look at a woman today because she can shout ‘rape’ under any condition… and you have to disprove it and it’s tough because there are only two people there and society tends to believe the woman.”

girls210820Rather than object to this pathetic defense argument, the prosecutor countered defense counsel’s moral shaming with his own. The prosecutor warned the jury of the existence of “trickster lovers” who disguise themselves to “your sons and daughters” as well-intentioned individuals, but have a “sweet tooth… for masochistic, sadomasochistic horror.” He exhorted the jury to send a message to these “trickster lovers” with a guilty verdict: “Think of the community,” he exhorted them, and deliver a verdict “for womankind, for all of us.”

The Circuit was unamused. It ruled that the prosecutor’s closing violated Chuck’s right to due process. “Prosecutors must seek convictions based on the evidence as it applies to the elements of the offense. While we do not expect emotionless prosecutors to present antiseptic arguments, they may not seek a conviction based on prejudice or passions. Prosecutors violate this edict when they stray beyond the defendant’s crimes and ask the jury to convict in order to ‘send a message to the community’.”

wrongright210820The prosecutor argued he was just responding to the improper arguments made by defense counsel. The 4th wasn’t buying it. “[T]wo wrongs do not make a right,” the 4th wrote. “Defense counsel’s misconduct does not grant the prosecutor a license to make otherwise improper arguments. A prosecutor must object to improper arguments, not merely respond in kind.”

Plymail v. Mirandy, Case No 19-6412, 2021 US App LEXIS 23722 (4th Cir. Aug 10, 2021)

– Thomas L. Root

Bear Hunting – Update for November 19, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SOME DAYS YOU GET THE BEAR…

billybear201119Billy Walters, convicted of insider trading charges in 2017, has filed a Bivens action against five law enforcement officials – including former SDNY US Attorney Preet Bharara – seeking a holding that his due process rights were violated when agents leaked confidential grand jury material to The Wall Street Journal and The New York Times, intended to “tickle the wire” by enticing investigation targets to implicate themselves on wiretaps. The leaks continued for more than a year, with 13 different stories about the investigation.

(A Bivens action, for those who are joining us late, is an action for money damages alleging that federal agents or employees violated one’s constitutional rights. It is so named for the case establishing the right – now rapidly being diminished – that case being Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which Mr. Bivens sued federal drug agents who kicked down his door, searched his apartment, and arrested him without a warrant for a drug crime that was never prosecuted).

Billy’s lawyers complained about the leaks at the time, but the US Attorney denounced the complaints as “false’’ and “baseless accusations that are undermined by the facts.’’ Only after the judge permitted Billy some discovery into there origin of the leaks did the US Attorney change his tune, admitting that a senior FBI agent had in fact leaked information and would be punished for it.

But evidence provided to the court showed that Bharara himself, along with a team of five other top prosecutors under him, were aware for two years that the FBI was leaking false information about Billy to the press. “While expressing outrage in selected emails shared with the court,” Forbes reported, “Bharara and his team appeared to do nothing to actually halt the activity.”  The FBI agent was severely lashed with a wet noodle, and retired with full benefits a few years later.

Billy’s judge expressed shock (although not enough shock to acquit Billy):

Mr. Walters is charged with, among other things, tipping material non-public information to another. And to help support that case, the special agent apparently tipped material non-public information improperly to another. That’s what we have here.

The 2nd Circuit later observed that the leaking of confidential grand jury testimony was “serious misconduct and, indeed, likely criminal’’ and “in some respects more egregious than anything Walters did.”

Billy’s complaint, filed by two law firms, seeks compensatory and punitive damages, and a declaration that Billy’s rights were trampled by the US Attorney and his minions.

Billy may have gotten the bear…

Real Clear Politics, Fighting Prosecutorial Leaks (November 11, 2020)

Forbes, Billy Walters Files Lawsuit Against FBI Leaker And US Attorney Team Who Covered It Up (October 30, 2020)

Complaint, Walters v. Bharara, Case 20cv8803 (SDNY Oct 22, 2020)

… AND SOME DAYS THE BEAR GETS YOU

Inmates cannot make a phone call without reading the writing on the wall (literally, it is painted on the wall above the phones in big letters, both English and Spanish) warning that phone calls are monitored and recorded.

Martin Shkreli, the original pharma bro (now a resident of FCI Allenwood Low), discovered that getting locked up wasn’t the end of his legal problems. The Federal Trade Commission sued a company he had run for anticompetitive conduct, and – with the cooperation of the BOP – got recordings of all of his inmate phone calls and emails.

martybear201119King Belshazzar was quite troubled by the handwriting on the wall, but Martin Shkreli is no King Belshazzar. so he talked freely on the inmate phones.  When the FTC told him it had gotten recordings of all of his inmate calls and emails – including communications with attorneys – from the BOP, Marty cried foul, arguing that he had an attorney-client privilege against disclosure, not to mention that the FTC’s possession of the records violated the Privacy Act.

The district court was unmoved. It ruled that under United States v. Mejia – 2nd Circuit precedent that holds an inmate has no expectation of privacy where all of the posted notices tell him otherwise – the court gave the FTC the go-ahead to use the material, except for a battle over four categories of documents. Last week, having rejected the Privacy Act argument, the court ruled that the FTC could use it all.

That should be a cautionary tale for inmates who don’t already believe those postings about calls and emails being monitored.

The bear got Marty…

Order, FTC v. Vyera Pharmaceuticals, LLC, Case 1:20cv706-DLC Dkt 308 (SDNY, November 10, 2020)

– Thomas L. Root

Kansas U.S. Attorney Found in Contempt as Leavenworth Scandal Heats Up – Update for August 22, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

US ATTORNEY TAKES IT ON THE CHIN IN KANSAS EAVESDROPPING CASE

In a scathing order issued last week, a federal judge found the Kansas US Attorney’s Office in contempt of court for its pattern of misrepresentations, obfuscation and lack of cooperation during an investigation into a growing scandal over government eavesdropping on attorney-client conversations at a privately-run prison in Leavenworth.

eavesdrop190822A ruling by Kansas federal judge Julie Robinson capped a three-year probe looking at prosecutors’ unauthorized access to recordings of confidential phone calls and meetings between defense attorneys and their clients. Judge Robinson found that USAO Kansas prosecutors determined on their own that they could listen to the recordings, tainting a number of criminal cases along the way. At least three defendants in Kansas have had their sentences vacated or their indictments dismissed as a result of the scandal. More than a hundred others have filed petitions for similar relief.

The 188-page ruling accuses AUSAs of lying to defense counsel and the court, using video recordings of attorney-client meetings “to attempt to gain a strategic advantage over a defendant…” and then, despite court orders, destroying the “hard drives that could have provided information about access to the recordings.”

angryjudge190822In a companion case, Judge Robinson rejected arguments that defendants should not be allowed to challenge the USAO’s eavesdropping. The government claimed that plea waivers prohibited raising any prosecutorial misconduct except under the 5th Amendment. Judge Robinson wrote, “Petitioner clearly claims that the government’s misconduct deprived him of his Sixth Amendment right to effective counsel by intentionally intruding into his attorney-client relationship absent a legitimate justification. The government’s argument that waiver applies because prosecutorial misconduct can only arise in the context of the Fifth Amendment is simply a misstatement of constitutional law.”

At the same time, the judge dismissed the government’s argument that the defendant should have raised the issue on direct appeal: “The factual basis for Petitioner’s 6th Amendment claims was not reasonably available to him at the time of his direct appeal, due in large part to the government’s strategy of delay, denial, and deflection in the… case and its handling of attorney-client recordings…”

Kansas City Star, Judge holds federal prosecutors in contempt in Kansas (Aug. 15)

Findings of Fact and Conclusions of Law, United States v. Carter, Case No. 16-20032 (D.Kan. Aug. 13, 2019)

Memorandum Opinion and Order, United States v. Phommaseng, Case No. 15-20020 (Aug. 13, 2019)

– Thomas L. Root

The Error Wasn’t Plain… But Your Lawyer Was Plainly in Error – Update for August 7, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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GOVERNMENT PLEA BREACH NOT PLAIN ERROR, BUT DEFENSE COUNSEL WAS PROBABLY INEFFECTIVE
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal

Marquette Murray had a couple of problems, a federal drug conspiracy indictment and a couple of misdemeanors in D.C. Superior Court. His lawyer negotiated a favorable plea deal in which the government agreed Marquette was looking at Criminal History I and a sentencing range of 24-30 months.

After the deal was made, however, Marquette got sentenced in D.C. Superior Court before his federal sentencing. The presentence report used the misdemeanor convictions and made Marquette a Crim History II. His sentencing range rose to 27-33 months, and the government recommended a 33-month sentence.

On appeal with a different lawyer, Marquette claimed the government had breached the plea agreement, because in D.C., the government runs prosecutions in federal court and superior court. Because the government had the power, Marquette said, it should have delayed Superior Court sentencing so Marquette would have remained a Crim History I for federal sentencing purposes. To add insult to injury, the government demandedMarquette get 33 months, and thus breached its promise to recommend a within-range guidelines sentence.

ausalies171207What did in the government was that it agreed in the plea agreement that based on the information it knew, Marquette had a criminal history of I and a sentencing range of 24-30 months. Last week, the Court of Appeals agreed with Marquette that the government had welshed on the deal, but it denied Marquette relief… even while dangling a post-conviction carrot in front of him.

Sure, the Court ruled, the government breached the plea agreement. But because Marquette’s trial attorney did not object, the appeals court could only grant relief for FRCrimP 52(b) plain error. “And to find plain error,” the Court said, “it is not enough to base our reading on the parties’ ‘reasonable understanding’ and on ‘construing any ambiguities’ against the government. Rather, we must find that the breach was clear or obvious.”

While reasonable defendants could have understood the agreement the way Marquette did, the agreement did not expressly address whether the not-yet-entered pleas would affect his final criminal history category and Guidelines range, and the agreement does not expressly address the expected timing of those pleas. “In sum, we conclude that the government breached its plea agreement with appellant [Marquette]. But [Marquette] did not object to the breaches in the district court, and we therefore cannot provide him with relief because the breaches were not plain. Although his interpretation of the agreement’s ambiguous language is the best one, we cannot say that the breaches should “have been obvious to the trial court.”

However, the Court said in an unmistakable hint to Marquette, it seemed pretty clear his trial counsel was ineffective in not seeking a continuance in Superior Court and in not objecting to the government asking for more than 30 months.

lawyerjoke180807And because “in most cases the Guidelines range will affect the sentence,” the prospect that effective performance would have put [Marquette’s] 33-month sentence above the Guidelines range is sufficient to establish a reasonable probability of prejudice.

The Court strongly implied that Marquette might get the deal he was entitled to on post-conviction review, and it hinted to Marquette that he should be sure to file a 2255 motion, which he will no doubt be doing soon.

United States v. Murray, Case No. 17-3006 (D.C. Cir., July 31, 2018)

– Thomas L. Root

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