Prosecutorial misconduct in the federal system

John Pacenti called me a couple of weeks ago in connection with this article about prosecutorial misconduct in the federal system in the Daily Business Review.  I should elaborate on the article’s passing reference to a case I discussed with Pacenti in which “inmates were passing around details about a defendant so that they could contact the prosecutor and testify.”

I was talking about the Colomb case in which a parade of convicted drug dealers perjured themselves in exchange for precious time cuts (there is no parole in the federal system).  Last month, I met with Ann Colomb and the attorneys who have agreed to file a civil rights case against AUSA Brett Grayson (it took me years to find an attorney with the requisite audacity). 

But there is an important addendum to the Colomb story that has never appeared in print.  Defendants in a similar case being prosecuted by the same federal prosecutors sent me copies of some letters written by federal inmates that demonstrate how the game works.  As it turned out, the feds had enough evidence of tax evasion on the current crop of defendants to negotiate a plea agreement without resorting to the same snitch testimony used to convict Ann Colomb and her sons.  But I would like to share a few bits and pieces from this correspondence because it shows how simple the game can be.

Consider this:

If your eyesight is less than stellar here’s the translation: “Honey, see if you can get Melba to get a picture of these people here.  I hope she can do it with just they name (sic).  If she do it send me their pictures ASAP.  That my free flying tickets!! to the house.”

Inmates aren’t allowed to write one another directly, so they often work through their girlfriends on the outside.  The girlfriends are often asked to take pictures of specific individuals standing in front of their vehicles in order to enhance the detail and particularity of manufactured testimony.  This also allows the inmate to pick the right face out of a photo array.

Here is a detailed description of how the perjury business works:

The Brett Grayson indicated at the bottom of the page is the nice man who used snitch testimony to convict Ann Colomb and her sons.  When asked outside the presence of the jury if he believed his witnesses, Grayson replied that credibility issues were for the jury to worry about.  In other words, he just didn’t care.

Here’s the salient portion of the letter reproduced above: “Make some shit up about Perry and Josh Bob [two of the defendants the snitches had targeted] where ya’ll use to hang out in Texas.  You have to make these people believe they was buying a lot of work [drugs] from you.  But once you get with Joe Pisano he will look out for you.  Say, Josh Bob would be with another nigga out here name Tellis you’ve might have seen them in H-town [Houston] before I know you seen him before they would be together out their in H-town (sic) . . . The nigga Tellis is a little Brighter [darker complected] than me about the same height as me & weighs about 185-200 lbs.  stays with a short hair cut.  He should still have braces in his mouth.  So don’t even sweat that time they gave you it doesn’t mean a things just watch an see how things go.  Make sure you sign the Kastigar letter (sic) before you do anything.  Here is a DA you can write: 

Brett L. Grayson

800 Lafayette St.

Lafayette, LA 70501

A “Kastigar letter” is used to proffer information that might be valuable to the Department of Justice without risk of self-incrimination (if any of you actual lawyers wish to correct me on this fuzzy definition please leave a comment).

In short, the inmate is telling his buddy (using his girlfriend as an interlocutor) that any semi-credible story he can cook up is sure to pass muster with Brett Grayson. Mr. Grayson, inmates have come to realize, suspends his capacity for critical thinking if it gets him the testimony he is looking for.

Moreover, Mr. Grayson knows that jurors will believe a convicted drug dealer so long as his testimony is sponsored by the federal government.

The DOJ, for its part, argues that any attempt to hold prosecutors like Brett Grayson accountable will have a chilling effect on the federal system and undermine the aggressive prosecution of very bad people.  More on that in Mr. Pacenti’s article below . . .

Justice Watch

Feds warn against frivolous motions as defense strategy

John Pacenti

The Justice Department is not giving up any ground on the issue of prosecutorial misconduct despite high-profile cases in Washington and Miami.

Lanny Breuer, the No. 2 man at Justice, headed into the belly of the beast last month at the American Bar Association’s white-collar crime conference on Miami Beach and spoke to a roomful of defense attorneys. He had a message for lawyers who levy false allegations of misconduct against federal prosecutors as a litigation tool.

“My concern is that there are a few in the defense bar who see blood in the water and are determined to attack the department’s prosecutors indiscriminately — and without any factual basis,” said Breuer, assistant attorney general for the criminal division.

Those attorneys think it is acceptable to use motions for sanctions or threats of a referral to the department’s Office of Professional Responsibility, which investigates claims of unethical conduct by federal prosecutors, as a way to gain some sort of strategic litigation advantage, he said.

Recent high-profile cases of misconduct have the defense bar on the lookout for any government shenanigans.

The voluntary manslaughter indictment of five Blackwater Worldwide security guards was thrown out in January by a Washington judge, who said federal prosecutors used tainted testimony in their “zeal to bring charges.” The guards had been charged with killing or injuring up to 30 Iraqi civilians in a well-publicized incident in Baghdad.

The Blackwater case, which centered on the killing of 14 Iraqi civilians in 2007, followed last year’s dismissal of the public corruption case against U.S. Sen. Ted Stevens. Prosecutors failed to turn over exculpatory evidence to the Alaskan Republican’s defense attorneys.

Closer to home, U.S. District Judge Alan S. Gold ordered the Miami U.S. attorney’s office, also last April, to pay for an acquitted defendant’s court costs and lawyers — $601,000 — after learning during trial testimony that prosecutors secretly taped phone calls between witnesses and a defense attorney and investigator.

But misconduct claims can misfire. Defense attorneys last month failed to make allegations of prosecutorial misconduct stick in a stock-options backdating case against KB Home’s former chief executive Bruce Karatz. U.S. District Judge Otis Wright in Los Angeles said he found no evidence that prosecutors bullied witnesses or crossed the line in any way.

After the Stevens fiasco, Attorney General Eric Holder told concerned federal judges that he would make prosecutorial misconduct a priority. He demoted those responsible for the Stevens case, and the Justice Department instituted new training for its prosecutors no matter how experienced.

Breuer reminded his Miami Beach audience it’s not easy being a federal prosecutor. He said prosecutors earn a fraction of what they could get in the private sector, face death threats in criminal cases and spend years on cases that take them far away from their families for extended periods of time.

“We all should think about what it means to be a federal prosecutor,” Breuer said.

Former interim U.S. Attorney Guy Lewis, now a partner with Lewis Tein in Miami, said the pressures can be enormous. Telling an investigating agency that a completed investigation must be dropped without charges is the hardest part of the job for any prosecutor, he said.

“There are going to be instances where prosecutors make mistakes. I did,” Lewis conceded. “What is important is for the prosecutor to own up to it.”

He said the aggressiveness that is leading to some of the misconduct cases may stem from the war on terror.

“The terrorism issue has spilled in a bad way into other more conventional-type cases,” he said. “I’m not saying aggressiveness is bad. But what I am saying is when you start throwing 95, 96, 97 mph fastballs, you got to be real careful about that.”

Breuer said the Justice Department is addressing the discovery issue at the heart of the current misconduct allegations. Federal prosecutors must turn over any exculpatory evidence and evidence that could be used to impeach government witnesses. Holder is requiring all prosecutors, no matter how experienced, to take new discovery training.

“We are confident that, through this comprehensive approach, we are equipped to meet our discovery obligations and minimize prosecutorial error,” Breuer said.

John F. Terzano, president of the Washington-based Justice Project watchdog group, said training is fine, but sanctions are the only way to stop the growing tide of runaway prosecutors. He said there is concern that the Office of Professional Responsibility takes too long to complete its investigations.

“Holding prosecutors accountable for the kind of intentional violations of legal and ethical obligations apparent in the Stevens and Blackwater cases can only be achieved through meaningful sanctions and effective disciplinary mechanisms,” Terzano wrote on the organization’s blog last month. “Failing to do so only invests more misconduct by overzealous prosecutors.”

Alan Bean, executive director of Friends of Justice in Arlington, Texas, has monitored trials in the South that he claims have been tainted by prosecutorial misconduct through the use of jailhouse snitches. In a Lafayette, La., drug case, he said, inmates were passing around details about a defendant so that they could contact the prosecutor and testify.

Bean noted there are few checks on the power of federal prosecutors.

“When you get right down to it, they are immune from consequences,” he said. “Unless somebody steps in and really holds their feet to the fire, it’s very difficult to do anything.”

In the Miami case, everybody thought it was a joke when a prosecution witness testified he had secretly taped his phone calls with David O. Markus, a defense attorney for Dr. Ali Shaygan.

The U.S. attorney’s office acknowledged the next day that it had conducted an unauthorized witness tampering investigation into Shaygan’s defense team. After Shaygan was acquitted of illegally prescribing narcotics to his patients, Gold issued sanctions against line prosecutors Sean Cronin and Andrea Hoffman and their bosses.

Gold said the prosecutors had a win-at-all cost mentality and vindictively went to a grand jury to add charges when Shaygan’s statement to investigators was thrown out of the case.

In appellate briefs challenging the sanctions, Cronin and Hoffman attacked Gold’s impartiality and suggested the case should be assigned to a new judge.

Markus declined to comment because of the pending appeals, but his brief called the prosecutors’ pleadings “arrogant.”

The American Civil Liberties Union has come down on Gold’s side, saying in an amicus brief that overturning the sanctions would have wide-ranging implications.

“The chilling effect on the entire criminal defense bar of allowing this strain of governmental misconduct to go unpunished would have grave consequences for the entire system of criminal justice,” Miami appellate attorney Richard Strafer wrote on behalf of the ACLU.

2 thoughts on “Prosecutorial misconduct in the federal system

  1. theirs a federal prosecution in greenbelt MD.That really needs to be publicised for the most pathetic federal task force investigation,vexacious prosecution,and total blunder of a federal prosecution in the history of jurisprudince.

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