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Keeping the Heat on Sean Cronin

John Pacenti, I like your style:

Where in the world is federal prosecutor Sean Cronin?

Those in the know are certainly not offering the whereabouts of the Miami Assistant U.S. Attorney at the center of a prosecutorial misconduct investigation. The Miami U.S. Attorney's Office has been ordered to pay $600,000 in legal fees and costs as punishment for misbehavior in a prescription drug case led by Cronin that disintegrated.

The Justice Department and the U.S. Attorney's Office won't confirm or deny Cronin's current assignment. Neither will his attorney. Cronin's office voicemail says he will be away until February.

But the Daily Business Review found him.

Find the answer here.

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?

Rachel Cannon, AUSA, is an Unethical Prosecutor

Another day, another unethical federal prosecutor:

A federal judge has found that a prosecutor in U.S. Atty. Patrick Fitzgerald's office committed prosecutorial misconduct by allowing a government witness to testify falsely in a drug conspiracy trial that resulted in the convictions of four defendants in March.

Here is the factual basis for the misconduct:

Under questioning from prosecutors, Williams testified that during late 2002 and early 2003, he witnessed Wilbourn packaging narcotics and talking about drug business with Freeman at a Granville Avenue apartment sometimes known as the "penthouse."

But the government ultimately conceded that Wilbourn was behind bars from April 2002 until September 2005 and that Freeman did not even live in the Granville Avenue apartment in 2002.

That meant Williams' testimony could not be true.

But, Lefkow wrote, when defense lawyers confronted Williams with the fact that Wilbourn was actually in jail when Williams said he witnessed the conspiracy, one of the prosecutors -- Lefkow does not identify whom -- objected and said, "That's not true."

District Attorney David Paulson Found Liable for Retaliation

This is an interesting jury verdict:

Solano County, Calif., District Attorney David Paulson retaliated against a bail bondsman who slammed the prosecutor in a newspaper ad, a federal court jury decided Wednesday.

Paulson and his chief investigator, Al Garza, acted with malice when they sought a temporary restraining order against Joel Thomas "Tom" Toler and then unsuccessfully pursued charges that he violated that order, the eight-member jury found.

The Recorder has the rest of the details here.

Retaliation claims are very hard to win.  I won't have time to review this stuff until Sunday at the earliest.  I have, however, uploaded the Complaint as well as the Order denying summary judgment, and thus allowing the retaliation claim to go to trial:

Barack Obama Gives Kickback to George Soros

On August 15, 2008, Bloomberg repoted:  

Billionaire investor George Soros bought an $811 million stake in Petroleo Brasileiro SA in the second quarter, making the Brazilian state-controlled oil company his investment fund's largest holding.

On August 19, 2009, the Wall Street Journal reported:

Obama Underwrites Offshore Drilling

You read that headline correctly. Unfortunately, the Obama Administration is financing oil exploration off Brazil.

The U.S. is going to lend billions of dollars to Brazil's state-owned oil company, Petrobras [which is short for Petroleo Brasileiro], to finance exploration of the huge offshore discovery in Brazil's Tupi oil field in the Santos Basin near Rio de Janeiro. Brazil's planning minister confirmed that White House National Security Adviser James Jones met this month with Brazilian officials to talk about the loan. 

George Soros still has a huge position in Petroleo Brasileiro.  According to most-recent filings, Petroleo is over 20% of his hedge fund's portfolio.  It's time for the media to start looking into the Halliburton of the Obama Administration.

Qualified Immunity: Reasonably Believed that it was Reasonable?

The always excellent "Wait a Second" blog has a post on qualified immunity.  It's "inside baseball" sure to give you a headache if you're not versed in the controversy over whether qualified immunity gives an officer two chances to show reasonableness.  

Is an officer who acted unreasonably entitled to qualified immunity if he reasonably believed that his unreasonable conduct was reasonable?  I am not even kidding.  That is indeed the standard in some courts - quantum legalistics designed to favor police.  Anyhow, here's the post.