Category Archive: Ethical Rules for Federal Prosecutors

Licensed to Lie Available for Pre-Order from BooksAMillion & Others

Licensed to LieThe book is now available for pre-order from BooksAMillionBarnes & NobleIndiebound, and Amazon!

Please note, however, that only books ordered through PayPal on the website will be autographed by the author.  Watch for book signing events on our Facebook page and on the Licensed To Lie website!

The book includes a special Foreword by Ninth Circuit Chief Judge Alex Kozinski, in his personal capacity.

A tragic suicide, a likely murder, wrongful imprisonment, and gripping courtroom scenes draw readers into this compelling story giving them a frightening perspective on justice corrupted and who should be accountable when evidence is withheld. Licensed to Lie: Exposing Corruption in the Department of Justice is the true story of the strong-arm, illegal, and unethical tactics used by headline-grabbing federal prosecutors in their narcissistic pursuit of power. Its scope reaches from the US Department of Justice to the US Senate, the FBI, and the White House. This true story is a scathing attack on corrupt prosecutors, the judges who turned a blind eye to these injustices, and the president who has promoted them to powerful political positions


Licensed to Lie — Exposing Corruption in the Department of Justice by Sidney Powell

Licensed to LieA gruesome suicide, a likely murder, a tragic and needless plane crash, wrongful imprisonment, and gripping courtroom scenes draw readers into this compelling story, giving them a frightening perspective on justice corrupted and who should be accountable when evidence is withheld.

Licensed to Lie: Exposing Corruption in the Department of Justice is the true story of the strong-arm, illegal, and unethical tactics used by headline-grabbing federal prosecutors in their narcissistic pursuit of power. Its scope reaches from the US Department of Justice to the US Senate, the FBI, and the White House. This true story is a scathing attack on corrupt prosecutors, the judges who turned a blind eye to these injustices, and the president who has promoted them to powerful political positions.

In a compelling Foreword written by Ninth Circuit Chief Judge Alex Kozinski in his personal capacity, he notes the importance of this issue, and as did the Washington Post recently, urges a national discussion of the issue.

The book will be out soon.  You may pre-order at Pre-orders will be autographed by the author and a portion of the proceeds will benefit the Constitution Project, NACDL, The Texas Equal Access to Justice Campaign, and Pisgah Legal Services.

Andrew Weissmann Quietly Slipped from FBI to NYU

WeissmannFormer Enron Task Force Director-turned General Counsel to the FBI-quietly left the FBI in October 2013. Remarkably, he has gone to teach at NYU.

We should all be concerned about what Weissmann might “teach” his students.

The NY Bar swept an ethical grievance aside-actually punting it to the Department of Justice to decide-even though the Department was defending Weissmann on those charges.

Prosecutorial misconduct infected every case with which he was involved while on the Enron Task Force.  First, he and DOJ Criminal Division Nominee Leslie Caldwell annihilated Arthur Andersen, destroying 85,000 jobs, only to be reversed by the Supreme Court 9-0 because Andersen’s conduct wasn’t criminal.  Then Weissmann oversaw the Merrill Lynch prosecution where his Task Force cronies including now White House Counsel Kathryn Ruemmler “plainly suppressed” evidence that was favorable to the defense while four innocent men went to prison.   Weissmann resigned from the Task Force amid serious allegations of prosecutorial misconduct by the Enron Broadband trial prosecutors.

Now he’s teaching law students? ? ? At least we can all be grateful that he is not directing the investigations, evidentiary decisions,email collection, and prosecution plans for the FBI any longer-or helping collect and handle NSA’s massive data on each of us.

New York Times Joins Kozinski Chorus on Epidemic of Brady Violations

Harlan Fiske Stone Moot Court Competition, Monday, March 26, 2012, at Columbia Law School in New York.  (Photo by Diane Bondareff)Entitled RAMPANT PROSECUTORIAL MISCONDUCT, the New York Times Editorial today joins the Los Angeles Times and cites Ninth Circuit Chief Judge Alex Kozinski’s recent dissent from the denial of rehearing en banc in the Olsen case, where many judges (but not enough) saw a significant violation of the defendant’s constitutional rights when the prosecutor failed to provide evidence that would have seriously impeached a crucial witness. Kudos to the Times for recognizing the problem and speaking out.

Brady violations undermine our system of justice and jeopardize the freedom of each of us. A prosecutor’s job is to seek justice-not obtain convictions, but far too many have lost their moral compass. One need only look at the legacy of injustice of the Enron Task Force prosecutors and the prosecutors of Ted Stevens and others in Alaska to see the ravages of the win-at-any-cost mentality that has infected our Department of INjustice-especially in high profile prosecutions.

The comments to the NYT Editorial so far are particularly telling. Yes, there are ethical rules that are supposed to apply to prosecutors, but the various bar associations are not enforcing them. To make matters worse, the Department of INjustice demands the right to filter all production of evidence favorable to the defense through the prosecutor’s lens of materiality and are advocating for the imposition of a materiality requirement in the bar rules nationwide. That means the prosecutor really doesn’t have to produce anything, and unless a defendant is lucky enough to have a judge like Emmet Sullivan or a handful of other district judges who compel the government to produce everything, the prosecutors are licensed to lie and convict on whatever their own view of their case is. The truth can be suppressed for years-if not forever-while innocent people languish in prison or are executed on death row.

On top of that, our Department of INjustice also opposes legislation proposed in a bi-partisan effort two years ago that would codify the rule of Brady and give it some teeth. Called the Fairness in Disclosure of Evidence Act, the legislation received wide support from almost every legal organization but one-the Department. That is sad and unacceptable. We’ve got to do better. Wrongful convictions destroy countless lives. There is no reason that an open file policy could not be standard operating procedure except in cases of national security or clear danger to witnesses. Those situations are comparatively rare. And the Fairness in Disclosure of Evidence Act should be enacted immediately.

NEWS FLASH: Attorney Ethics Complaints in D.C. On the Rise in 2013

Ruemmler & Obama

The BLT: Blog of LegalTimes reported today that ethics complaints are on the rise against lawyers in D.C.

The Office of Bar Counsel is on track to receive more attorney ethics complaints in 2013 than it did in 2012, especially related to criminal cases.

According to the latest bar counsel statistics, the office received 1,090 complaints as of Nov. 13, up from 1,021 complaints received by the same time in 2012. There were a total of 1,081 complaints received by bar counsel in 2012.

Remarkably, the D.C. Bar doesn’t know the reason for the increase.

We can help them with that.

Deputy Bar Counsel Elizabeth Herman does admit that most of the increase is from criminal cases. Perhaps she and her colleagues should take seriously, actually investigate, and take action on complaints against federal prosecutors for Brady violations and other misconduct-including current White House Counsel Kathryn Ruemmler from her days on the Enron Task Force. The D.C. Bar seems to have lost the grievance filed against Ruemmler somewhere in its political airspace.

If the Bar disciplined prosecutors for Brady violations, it would help put a stop to many injustices while better serving the Bar, the courts, and the public.

Stay tuned to this blog for more information on this topic.

Obama Administration Fosters Enron Task Force Prosecutors-A Cabal With Records of Prosecutorial Terror Tactics and Supreme Court Reversals

Ruemmler & Obama

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,

Friedrich announcing Stevens' indictment

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 Click here to read more »

During Lively Argument, the 9th Circuit En Banc Tells Prosecutor the U.S. Attorney Should Confess Error

NinthCircuitcourtofappealslogoDuring 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.

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Danizger Bridge AerialThe 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.”

Click here to read more »

All Talk, No Action. FOURTH CIRCUIT REBUKES FEDERAL PROSECUTORS for Repeated Disregard of Obligations

DOJ sealHERE 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.

Click here to read more »

Ninth Circuit Believes in Brady & Enforces It Again

Ninth Circuit Judge William Fletcher

Another panel of the United States Court of Appeals for the Ninth Circuit hits a home run for the Constitution!  After failures of every prior state and federal judge to act in the face of clear evidence, the Ninth Circuit has reversed a denial of a writ of habeas corpus and required release - or a new trial - for a criminal defendant because of a prosecutor’s Brady violation.

Authored by Circuit Judge William Fletcher for the panel including Circuit Judge Harry Pregerson and District Judge Mark Bennett (all pictured), the panel held (emphasis added) :

Ninth Circuit Judge Harry Pregerson

Gilbert Aguilar was convicted of first-degree murder after a jury trial in Los Angeles County Superior Court.  A young Hispanic man got out of a white Volkswagen Beetle and shot John Guerrero while Guerrero’s car was stopped at a stoplight. The only question at trial was the identity of the shooter. Aguilar’s defense was that another young Hispanic man, Richard Osuna, had shot Guerrero.

The prosecution introduced evidence that a police dog named Reilly had alerted to a “scent pad,” showing that Aguilar’s scent was present on the

front passenger seat of the white Volkswagen.

U.S. District Judge Bennett, sitting by designation with the 9th Cir.

 The prosecution did not disclose to the defense that Reilly had a history of making  mistaken scent identifications, 

 even though it had stipulated to Reilly’s mistaken identifications in a different trial several months earlier.

    Following the stipulation, that court had excluded evidence of Reilly’s scent identification from the earlier trial.

     Reilly’s scent identification was the only evidence that tied Aguilar to the white Volkswagen.

Putting the scent identification to one side, the evidence against Aguilar was weak. No clear motive for Aguilar to shoot Guerrero was ever suggested at trial. No physical evidence tied Aguilar to the crime. The faces of Aguilar and Osuna are very similar, but Aguilar is older and, at the time of the shooting, was significantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

The evidence suggesting that Osuna was the killer was substantial. Osuna’s brother was shot several days before Guerrero was shot. Two witnesses testified that Osuna jumped into a white Volkswagen Beetle to pursue Guerrero’s car as it drove past.  One of them testified that Osuna did so in the belief that the “fools” in the car had shot his brother. That same witness testified that Osuna told her a short time later that he had shot a “fool.” Even so, Osuna was never investigated as a suspect in this case. Indeed, the prosecutor in this case expressly told the police not to pursue an investigation of Osuna.cantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

Read on in the full decision and it only gets worse. Click here to read more »