In another sign that the Ninth Circuit is leading the way in holding prosecutors to their Constitutional obligations while insuring the Constitutional rights of defendants, a panel earlier this month, in Dow v. Virga, No. 11-17678 (Sept. 5 2013 9th Cir.), granted habeas relief where the California prosecutor, Deputy District Attorney Jennifer Ow of San Mateo County, knowingly elicited and then failed to correct false testimony in violation of Napue v. Illinois, 360 U.S. 264 (1959).

The opinion, written by Judge Reinhardt, and joined by Judges Milan D. Smith Jr. and James G. Carr, found “textbook prosecutorial misconduct” “violat[ing] the basic tenet of Napue v. Illinois,” which prohibits “soliciting false evidence,” and requires the prosecutor to not “allow[] it to go uncorrected when it appears.” Reversing District Judge Phyllis J. Hamilton, the panel found that the California Court of Appeals’ decision upholding Mr. Dow’s conviction was contrary to and/or an unreasonable application of existing Supreme Court precedent.

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White House Counsel Kathryn Ruemmler has announced that she is leaving her post to return to “private practice” at the end of 2013.  Ruemmler barely escaped from the IRS scandal during which she said she failed to inform the President that IRS was targeting political adversaries.

Meanwhile, the DC Bar is still holding and apparently trying to ignore ethics charges filed against her by leading legal ethics expert Bill Hodes and this author after the United States Court of Appeals for the Fifth Circuit held that Ruemmler and her Enron Task Force colleagues “plainly suppressed” evidence favorable to the defense. Indeed, they hid the evidence for years, while four Merrill Lynch executives spent up to a year in prison for a “crime” that these creative prosecutors manufactured.

Ruemmler, and her Enron Task Force colleague Matthew Friedrich, former Acting Attorney General for the Criminal Division of the Department of Justice,

even told the district court and the Fifth Circuit that there was “no substantial issue for appeal” and vehemently opposed bail pending appeal for the defendants. At the same time, they hid evidence from key witnesses including favorable, exculpatory, and material statements that they had yellow-highlighted before trial, and still concealed from the defense-despite a court order to provide presumably accurate summaries of that evidence.

They provided carefully crafted misleading “summaries” instead, and they did all of this under the watchful eye and tutelage of our current General Counsel/Deputy Director of the FBI, Andrew Weissmann, who was Director of the Enron Task Force at the time of several trials infected with misconduct, including the Enron Broadband debacle in which Lisa Monaco was one of the trial prosecutors.

Friedrich enjoyed a meteoric rise within the Department of Justice, and as acting Assistant Attorney General for the Criminal Division, rushed the indictment of former United States Senator Ted Stevens. Then Friedrich micromanaged that prosecution until it blew up amid allegations and evidence of prosecutorial misconduct and hiding evidence that supported the Senator’s defense. There is more than enough evidence against Friedrich-in the report on the Stevens prosecution by Special Prosecutor Hank Scheulke-that Friedrich should have been investigated, at the very least, by a state bar or federal court.

Now, at the same time we learn that Ruemmler is leaving the White House, before more of her misdeeds are exposed, Mr. Obama announces that he is nominating former Enron Task Force Director Leslie Caldwell Read More »

During oral argument before the En Banc Ninth Circuit in United States v. Maloney,  Chief Judge Kozinski, Judges Pregerson, Fletcher, Wardlaw, Thomas, and others, anatomically rearrange an experienced Assistant United States Attorney. The representative of the Sovereign just can’t seem to admit that the trial attorney told the jury in his rebuttal argument a “fact” that was simply NOT in the record.  By doing so, the trial prosecutor unfairly infected the trial with a ridiculous and obviously intentional misrepresentation. He “sandbagged” the defense.

The entire argument is worth watching to see how a good court (or apparently the majority thereof) handles prosecutorial misconduct-addressing it head-on instead of whitewashing or rationalizing it. After all, as Judge Pregerson repeatedly states, a defendant is entitled to a FAIR trial.

This is also an excellent demonstration of how a federal prosecutor should not argue a case on appeal, and Bruce Castetter should have known better.

The Assistant United States Attorney who tried the case, Steve Miller, was sitting in the courtroom. The District Judge who denied the defendant so much as surrebuttal to refute the prejudicial, unfair, and dishonest argument was Dana M. Sabraw of the Southern District of California.

Chief Judge Kozinski instructs the Assistant United States Attorney to sit down with his United States Attorney upon return to his office, review the video of the argument, and consider the benefits of confessing error. Hallelujah!

The really good part begins about 25 minutes into the argument. To read the panel decision that appears to be going onto the scrap pile, see 11-50311United States v. Maloney Panel  Opinion.

The fall-out from the astonishing and outrageous misconduct (discussed previously here) in the United States Attorney’s Office in New Orleans continues. And this time, there are significant consequences.  As reported here, and here, the serious criminal convictions of five New Orleans police officers were overturned on Tuesday, and a new trial ordered, for what the presiding federal judge described as “bizarre and appalling,” “deliberate and especially egregious,” “grotesque prosecutorial misconduct.” The Order, in its entirety, is absolutely essential reading for those concerned with prosecutorial misconduct and its implications for our criminal justice system. The entire order is here.

Federal District Judge Kurt Engelhardt found that federal prosecutors Sal Perricone, Jan Mann, Karla Dobinski  posted anonymously on various web sites in order to infect and taint the jury pool into assuming the guilt of those charged.  Subsequently, those same US attorneys and others engaged in a conspiracy to cover-up (from the Court’s own inquiries no less) much of that (and more) outrageous activity. This conduct, the Judge wrote:

“illustrates the diseased root that unfortunately casts an ineradicable taint on these convictions….The government’s actions, and initial lack of candor and credibility thereafter, is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism, and basic fairness and common sense necessary to every criminal prosecution, wherever it should occur in this country.”

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HERE WE GO AGAIN.  In United States v. Bartko, an opinion released in late August, the Fourth Circuit called out the US Attorney’s Office for the Eastern District of North Carolina for its misconduct in discovery practices. Citing a series of recent opinions “involving discovery abuse by government counsel in this district,” the panel of the Fourth Circuit took the federal prosecutors to task:

Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional. Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.

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