Entries categorized "Zhenli Ye Gon"

Federal Judges Taking Separation of Powers Seriously

Contrary to popular prosecutorial belief, a federal judge's duties include more than, "Do what DOJ tells you to do."  According to the Constitution, federal judges must serve as adversaries to prosecutors.  Power must check power in our system of separated powers.  In the Federalist No. 51, James Madison wrote:

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Federal judges - not prosecutors - were granted judicial power under Article III of the Constitution.  Nevertheless, many judges allowed prosecutors to execute de facto Article III power.  Deferring to and accepting all facts asserted by prosecutors as true, is an implicit surrender of the Judicial Branch's Article III power. 

After realizing that the United States Department of Justice is corrupt and untrustworthy, federal judges are taking their power back.  The Zhenli Ye Gon prosecution is a perfect example.

In United States v. Ye Gon, prosecutors hid evidence from a federal judge.  Once the judge uncovered the misconduct, prosecutors dismissed the case rather than face an evidentiary hearing.  The prosecutor may not escape that evidentiary hearing into their misconduct.

Mexico has moved to extradite Ye Gon.  The Department of Justice thus wants to make Ye Gon Mexico's problem.  Mike Scarcella, who has covered the Ye Gon case and deserves a journalism award for his attention to prosecutorial misconduct, is reporting that the Magistrate Judge has a gavel rather than a rubber stamp:

The Zhenli Ye Gon case just won't go away fast enough for the Justice Department.

A federal magistrate judge in Washington today ruled against the department in the extradition case against Ye Gon, who is wanted in Mexico on charges that include organized crime and drug violations. A judge in August dismissed the drug trafficking conspiracy charge against Ye Gon with prejudice.

You may read the rest of Scarcella's report here.


American Bar Association Issues New Guidelines on Prosecutorial Ethics

The American Bar Associate recently issued an important opinion expanding a prosecutor's ethical duties.  Significantly, the ABA has interpreted the Rules of Professional Conduct to be more demanding than constitutional requirements under Brady v. Maryland.  The ethical bar has been raised.

Entitled, "Prosecutor's Duty to Disclose Evidence and Information Favorable to the Defense," Formal Opinion 09-454 begins:

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. 

Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

The opinion is here.  Scott Greenfield comments here.  This is a huge development, given that many jurisdictions mimic the ABA's interpretations of the Rules of Professional Conduct.

Yes, ABA Opinions are advisory, and thus do not have force of law.  States can incorporate the ABA's new interpretation.  Judges can also give Formal Opinion 09-454 legal effect.  Indeed, one federal judge already has.

District Court Judge Emmet Sullivan has issued a Standing Order that incorporates by reference Formal Opinion 09-454.  In proceedings in United States v. Zhenli Ye Gon, Judge Sullivan told federal prosecutors

"I don't want to spend a lot of time on Brady because if no one knew about Brady before [the ex-Sen. Ted] Stevens [case], everyone does now, and I've crafted a standing order I'm going to issue," Sullivan said at the hearing. "Everyone's fairly aware of everyone's—of the government’s Brady obligations and that’s just not an issue that’s open for debate."

In light of rampant prosecutorial misconduct within the Department of Justice, more federal judges should make Formal Opinion 09-454 part of their standing orders.

Prosecutorial Misconduct and the Problems of the Middle Class

The Zhenli Ye Gon case was dismissed due to prosecutorial misconduct.  (Details here.)  How was the misconduct discovered?

Zhenli Ye Gon was a rich drug dealer whom federal prosecutors deemed unworthy of a fair trial. And so prosecutors hid evidence.  Fortunately for Ye Gon, he was able to pay lawyers to work tirelessly on his case.  If Ye Gon had been poor, the hidden evidence would never have been uncovered.

In the prosecution of former Senator Ted Stevens, prosecutors also withheld evidence.  Stevens, fortunately, was able to pay millions to Williams & Connolly.  The Duke players were able to expose the rape complaint as a hoax only after their lawyers re-reviewed thousands of pages of documents.  

Ye Gon, Stevens, and Duke have a common theme: With big budgets, every stone is unturned.  The poor and middle class are not so lucky.

I.  Finding Prosecutorial Misconduct Costs Money.

Most prosecutorial misconduct involves prosecutors withholding evidence.  Under federal law, prosecutors have a duty to hand over exculpatory evidence to the defense.  Exculpatory evidence includes witness recantations, physical evidence revealing third-party DNA, or anything else that would make it less likely that the defendant committed the crime.  

It's through withholding exculpatory evidence that prosecutors make mischief.  It's just damned easy to get away with.

How do you find out that you don't have something?  The answer is simple, but not easy.  The simple answer is: Lay down a six-figure retainer with a lawyer, and a five-figure retainer with a private investigator.  Tell them to start turning over stones, and that, yes, you know the meter is always running.  Is the simple solution easy?   

Most of the people who read legal blogs earn well-above average incomes.  How many among you could write a check for $100,000?  I couldn't.   A middle-class client making $60,000 a year is too rich for a public defender, and is lucky if he can come up with $10,000.  Thirty grand is a huge fee for most ham-and-eggs lawyers.

II.  Criminal Law's Business Models.

Most criminal lawyers fall into three categories - mills, ham-and-eggs, and white collar.  With a law mill, a client walks into an office.  A lawyer takes three-to-five grand, knowing that he won't do any work.  The lawyer pleads out the client, making a huge profit.  Also included in law mills are DUI and traffic ticket defense shops.  Write a check, and the lawyers will spend a couple of hours greasing the legal wheels to get you a better deal that you could have gotten yourself.

Most clients charged with a serious crime will go to second-category lawyers.  These are hard-working, earnest lawyers who try cases.  They view plea bargaining as something one does only after prepping a case for trial.  Yet, unlike white collar defendants, these clients can't afford huge fees.  

A solo lawyer or small firm with only a secretary, small office, and Westlaw subscription won't be able to keep the lights on for very long unless they take on a lot of smaller criminal clients charged with serious crimes.

Thus, even earnest and well-meaning lawyers can only devote so much time to any given client.  Yes, it's sad.  Yes, it's a dirty secret no one is supposed to talk about it.  Yes, it's also the reality of criminal practice.  Unless you give a public defender to everyone who requests one, any given client isn't going to get Williams & Connolly level representation.

Thus, in the majority of cases, no one will ever discover prosecutorial misconduct.  Without a private investigator or a client capable of paying for around-the-clock research, how can the missing evidence be found?

III.  Equal Justice Should Not Cost Seven Figures.

Equal justice under the law is a constitutional requirement, not a privilege one purchases for six-or-seven figures.  Yet, as most high-profile cases of prosecutorial misconduct show: Only the rich are finding the hidden evidence.  

There are some simple and easy solutions to prosecutor misconduct.

A.  Open file policies.  Most federal prosecutors get to decide whether evidence is exculpatory.  No neutral third-party reviews the prosecutor's decision.  How then is anyone to know whether the prosecutor has withheld exculpatory evidence?  This is a clear conflict-of-interest.

Judges who care about equal justice should demand that prosecutors hand over their files to criminal defendants.  Many states have so-called "open-file laws."  They work well, and are simple.  If a prosecutor has a document, the prosecutor hands it over.   Thus, a prosecutor need not decide whether evidence is exculpatory. 

B.  Name-and-shame.  If a prosecutor commits misconduct, identify the prosecutor by name.  All too often, judges will reverse a conviction for prosecutorial misconduct.  Rather than identifying the prosecutor, the judge will say, "The prosecutor committed misconduct."  Name the prosecutor.  

C.  In any case where a criminal conviction has been reversed, refer the case to the State Bar.  If a prosecutor has commited misconduct, then, by definition, the prosecutor has committed a violation ofthe Rules of Professional Conduct.  Every State Bar forbids prosecutorial misconduct.  Shouldn't judges at least refer the matter to the state bar?
 

IV.  No More Excuses.  

Judges, there is no longer an excuse to view prosecutorial misconduct as an unusual occurrence.  There have been over a dozen instances of high-profile misconduct in 2009 alone.  How many cases of prosecutorial misconduct escaped media attention?  

Prosecutorial misconduct is a problem.  You are able to solve it.  Will you?

Prosecutorial Misconduct in Zhenli Ye Gon Drug Case?

Zhenli Ye Gon is a Chinese-born, Mexican businessman who allegedly sold materials he knew would be used to manufacture methamphetamine in the United States.  The United States Departe of Justice filed a complaint against Ye Gon in June, 2007.  Ye Gon was arrested in July, 2007.  Yes, over two years ago.

Mexican prosecutors, for as long as Ye Gon has been in U.S. custody, have wanted Ye Gon. On June 2, 2008, Mexican authorities formally moved for extradition. The Department of Justice was not interested in handing Ye Gon over. That is, until June, 2009.

On June 22, 2009, federal prosecutors suddenly reversed course.  They moved to dismiss the case against Ye Gon, but asked to reserve the right to refile charges against Ye Gon. Why the abrupt change?

The prosecution's motion to dismiss did give any reasons for its policy shift.  Rather, the motion simply stated that it'd be swell for the U.S. to hand Ye Gon over to Mexican authorities.  That was probably true, though it was also question-begging.  DOJ begged the question: Why now?

The Docket Sheet reveals the answer. Take note of entry #166. On June 1, 2009, the defense moved to compel disclosure of Brady material:

06/01/2009166 MOTION to Compel Disclosure of Brady Evidence by ZHENLI YE GON. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, #3 Text of Proposed Order)(Retureta, Manuel) (Entered: 06/01/2009)

On June 3, 2009, U.S. District Court Judge Emmett Sullivan ordered federal prosecutors to turn over Brady Material:

06/03/2009168 ORDER granting 166 Motion to Compel Brady Evidence as to ZHENLI YE GON. Signed by Judge Emmet G. Sullivan on June 3, 2009. (AS) (Entered: 06/03/2009)

The Brady material revealed that a key prosecution witness had recanted his testimony several months ago. Under Brady v. Maryland, a witness recantation is clearly exculpatory.  Even without knowing anything about Brady, anyone would realize that a witness incantation is huge.  Right?

Why didn't the Department of Justice hand this material over to defense lawyers until Judge Sullivan forced them to?  Judge Sullivan asked, and the federal prosecutors refused to answer.

Instead, two years after Ye Gon's arrest and one year after Mexico made a formal extradition request, the Department of Justice has moved to dismiss the case.

Judge Sullivan is pushing back. He is asking questions. The answers should be very interesting, and highly revealing. This is definately a case you will want to watch.

(Hat tip: Mike Scarcella, of the Legal Times, has been reporting on the Ye Gon prosecution for several months.  Read his latest post for more details; read this previous news story, which discusses the possible prosecutorial misconduct.)


Prosecutors Seek Mulligan in Zhenli Ye Gon Prosecution

Imagine you're a federal prosecutor.  You do not like the law that requires you to turn over evidence in your possession that is favorable to the defense - so called Brady material.  You devise an ingenius scheme.

You won't hand over any Brady material.  If you finally get caught holding onto to the Brady material, and a judge threatens to dismiss your case as punishment, you have a card up your sleeve: You will simply dismiss the case without prejudice.  (In contrast to a dismissal with prejudice, a prosecutor who dismisses a case without prejudice may refile the case.)  After a few months, you will come up with a justification to refile the case.  

Genius, isn't it?  

It's not so genius when the judge you're gaming is U.S. District Court Judge Emmet Sullivan.  Judge Sullivan presided over the prosecution of former Senator Ted Stevens.  And so the federal prosecutors in the Zhenli Ye Gon case are learning that Judge Sullivan is not a prosecutor-in-a-robe, and he is not one to trifle with.

Mike Scarcella (remember the name) has provided excellent coverage of the prosecutorial misconduct in Ye Gon.  His most recent post is must-read stuff: "Federal Judge Questions DOJ Motivation to Dismiss Drug Case."