Now in Legal Rebels:
Posted Jul 02, 2009 04:19 am CDT
The government’s evidence linking reputed mob figures Vincent “the Animal” Ferrara and Pasquale “Patsy” Barone to a 1985 murder was pretty thin—an accomplice who escaped prosecution in exchange for testimony against the pair.
But a little over a year after the 1990 racketeering indictments of Ferrara, Barone and six other members of New England’s Patriarca crime family, a federal prosecutor in Boston learned his putative star witness had recanted.
Yet the prosecutor never told defense about the recantation, which he and a detective recorded in writing. Indeed, the defendants didn’t learn of the memos until 2003, when the detective spilled the beans at a hearing on habeas corpus petitions they filed seeking their release from long prison sentences.
Ultimately both went free, Barone in 2003 from a life sentence and Ferrara in ’05 from a 22-year term. Chief U.S. District Judge Mark L. Wolf, who had imposed both sentences, was forced to cut them short.
The prosecutor, Assistant U.S. Attorney Jeffrey Auerhahn, was investigated by Massachusetts state bar authorities. Wolf dropped a dime on him after learning that Auerhahn’s boss had simply reprimanded him behind closed doors. That just wasn’t good enough for Wolf, considering he had to release two defendants regarded as especially dangerous. Auerhahn still works at the U.S. attorney’s office in Boston, prosecuting terrorism cases.
But, going where few judges would, Wolf also penned an extraordinary series of letters—first to Attorney General Alberto R. Gonzales and then to his successor, Michael B. Mukasey—stating his case for stiffer punishment and voicing his frustration with the Justice Department’s secretive Office of Professional Responsibility, which is supposed to investigate complaints of misconduct by prosecutors and law enforcement officials who work for the department.
“The department’s performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors,” Wolf wrote in a January 2008 letter to Mukasey.
Wolf, appointed by President Ronald Reagan in 1985, warned Mukasey that more jurists would begin punishing prosecutors behaving badly if the OPR didn’t.
“I anticipate this will become much more common unless the department’s performance in disciplinary matters improves significantly,” the judge cautioned.
Wolf’s stinging rebuke came not only from a veteran jurist, but from someone who as a young prosecutor helped set in motion the department’s disciplinary machinery in the aftermath of the Watergate scandal.
“As one who took pride in assisting Attorney General Edward Levi in establishing OPR more than 30 years ago,” Wolf told Mukasey, “I sadly doubt it is now capable of serving its intended purpose.”
Critics historically have regarded the OPR as inept at policing its own. Wolf’s exchanges with the attorney general also come amid calls for more transparency.
“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”
The Justice Department established the OPR in December 1975 to investigate allegations of professional misconduct made against DOJ attorneys and, under certain circumstances, law enforcement personnel, including agents of the Federal Bureau of Investigation and the Drug Enforcement Administration.
At the DOJ’s request, the section council deferred action in April on a resolution calling on Justice to disclose OPR findings in which it has documented intentional or otherwise serious misconduct. The move gave Justice more time to determine the extent to which a new Freedom of Information Act policy presuming disclosure applies to the OPR.
The ABA had wanted the OPR to return to a Clinton-era policy favoring release when probes found intentional or serious misconduct, while weighing concerns for personal privacy and ongoing investigations.
Under the Bush administration, probes of misconduct often went undisclosed because of the potential for personal embarrassment. Upon taking office, President Barack Obama admonished all federal agencies that such personal or political considerations shouldn’t weigh against the public interest. Probes should not be withheld just because they might cause discomfort.
“These people should be embarrassed,” Green says.
Photo by Reuters/
The office, which normally files annual reports recounting the number and nature of its caseload, hasn’t done so since 2006.
To be sure, the OPR has been visible in recent years, as it joined with the DOJ’s independent inspector general in high-profile investigations involving allegations that Gonzales and a core group of aides improperly considered politics in the 2006 firings of nine U.S. attorneys and in other personnel matters. It also has been investigating what role the department may have played in supplying the Bush administration with legal justification for waterboarding and other harsh treatment of prisoners captured as suspected terrorists.
But besides the handful of visible cases, critics say they have no idea what the OPR does with the rest of its time, how well it does it—or even whether it does anything at all when no one’s looking.
“I don’t know anyone who can answer that,” says Green.
While the politically charged cases emanating from central Justice—and even the attorney’s general’s office itself—have provided plenty of news copy and sound bites, they hardly represent the bulk of the OPR’s basic and mysterious workload.
The Ferrara and Barone cases are more representative. They presented the classic government discovery violation: Failure to give the defendants evidence pointing away from guilt, as required by the landmark 1963 U.S. Supreme Court decision in Brady v. Maryland.
A series of similar and more extensive Brady violations and other misconduct forced the department to abandon its case against Ted Stevens, the Alaska senator who narrowly lost re-election last year shortly after he was convicted of seven felony ethics violations for hiding $250,000 in goods and services he received to renovate his house.
During the trial, defense counsel Brendan V. Sullivan Jr. complained that prosecutors were not sharing Brady materials with the defense. Judge Emmet G. Sullivan (no relation) rejected a defense request for a mistrial, and on Oct. 27 Stevens was convicted.
But after the trial, an FBI agent filed an affidavit alleging that the prosecution intentionally withheld information from the defense, and had dismissed a potentially exculpatory witness. The judge ordered a hearing to consider the Brady claims.
On Feb. 3, the day he was sworn in, Attorney General Eric H. Holder Jr. had the prosecution team replaced. And on April 1, he decided to drop the prosecution altogether, ordering the OPR to investigate.
Prosecutors promised Judge Sullivan they would share the results with him. But they didn’t say when.
Mistrusting the OPR, Sullivan took things a step further. He dismissed the case on April 7 and appointed a special prosecutor to investigate six of the lawyers from the department’s Public Integrity Section involved with the trial.
The judge said he had been lodging OPR complaints for varying violations since autumn, but had heard nothing of them. “The silence has been deafening,” he said. And the latest round of ethical accusations was “too serious and too numerous,” Sullivan said, to entrust the investigation to an office controlled by the attorney general with “no outside accountability.”
Defense attorney Sullivan told the court he’d complained three times to Mukasey about the conduct and never received so much as an acknowledgment. “Shocking, but not surpris- ing,” Judge Sullivan responded.
The next day, Holder transferred OPR Counsel H. Marshall Jarrett from the job he had held since 1998 to head the Executive Office for U.S. Attorneys. Department officials said the move had nothing to do with the Stevens case.
In 2006, the last year it reported on such things, the OPR received 869 referrals and outright complaints. Of 230 deemed worthy of further review, 84 became full investigations. At least 30 percent of the allegations involved misrepresentations to defense attorneys or Brady violations. A full 70 percent of the actual investigations began as judges’ complaints.
It’s a road Judge Wolf has traveled many times before.
Judges seldom discipline lawyers who practice before them for professional misconduct—though other actions, such as Rule 11 sanctions, sometimes attempt to curb the same behavior and may go unrecognized as punishment dealt to individuals. And in most cases, prosecutors’ acts that don’t legally harm defendants are unlikely to get a second look from most judges. Not so in Wolf’s courtroom.
Earlier this year, after denying Darwin E. Jones’ challenge to his arrest on gun possession, Wolf turned his attention to the prosecutor for failing to disclose conflicting accounts a police officer had given of the apprehension.
“It is not appropriate to reward Jones and punish the public by dismissing this case to sanction the government’s conduct,” Wolf wrote in United States v. Jones. “Rather, the focus of any sanction should be on the prosecutor primarily responsible for that misconduct.”
Though Jones lost the motion, his lawyer in the obscure case says prosecutors are on notice now, if they weren’t before. “I think of all the judges, certainly in the District of Massachusetts, Wolf takes this Brady stuff really seriously,” says Jones’ lawyer, John F. Palmer of Boston. “What Judge Wolf does in these cases goes beyond what most judges will do. The cases make it a self-policing operation on the part of prosecutors.”
Wolf declined an interview request. But his extensive writing in the mob cases and others offers a glimpse at the frustrating endeavor of trying to get action—let alone information on cases—from the OPR.
In the case of mob defendant Ferrara, for instance, prosecutorial misconduct wiped out a sentence imposed 16 years earlier as part of a guilty plea.
“Brady reversals are not unique,” explains Ferrara’s lawyer, Martin G. Weinberg of Boston. “What’s unusual is when there’s a plea and you get a reversal. This was not marginal evidence. It went right to the heart.”
Ferrara was charged with 35 counts of racketeering and related offenses. To bolster the racketeering case, prosecutors used the 1985 murder of one Vincent “Jimmy” Limoli. Prosecutors had planned to argue that Ferrara, anxious to advance in the organization, had ordered Barone to carry out the hit because Limoli had stolen drugs from a family member. Barone’s brother-in-law, Walter Jordan, accompanied Barone to a darkened street in Boston’s North End, where Barone shot Limoli.
By 1988, both the law and the family wanted Jordan. As part of a deal for immunity from prosecution and protection from the mob, Jordan told a grand jury in ’88 that Ferrara had ordered the murder. But in 1991, long before trial, Jordan recanted twice: first in meetings with investigators, and later with prosecutor Auerhahn. Martin Coleman, a Boston police detective assigned to the case, wrote a crucial memo on Jordan’s new version of events. That’s where the prosecution started to unravel.
Testifying before Wolf in Barone’s habeas case, Coleman said Auerhahn asked him for a copy of the memo so the prosecutor could clean it up. Coleman assumed Auerhahn just wanted to correct his grammar and spelling, so he didn’t object. Instead, Auerhahn drafted a second, toned-down version, though he still listed Coleman as the author. While Coleman’s original directly rebutted the charges that Ferrara ordered the killing, Auerhahn’s never stated that conclusively. It didn’t matter. Neither version became available to the defendants until years later.
By 1992, the cases were headed to trial. Facing a life sentence had he taken his case to a jury, Ferrara accepted a 22-year sentence in exchange for his guilty plea. Barone cast his lot on trial, was convicted and got life.
Years later, once news of the recantation broke, their habeas petitions got fresh legs. It meant immediate freedom for Barone, who strolled out of the federal courthouse in October 2003. Locked up since 1988, he was sentenced to time already served in a plea deal crafted as Wolf pondered a new trial. The deal required Barone to admit his role in the Limoli murder and one other slaying.
Ferrara’s guilty plea made his case more complex. Now he was able to argue that he wouldn’t have pleaded if he had known Jordan changed his testimony. Even if the new testimony didn’t outright clear Ferrara, Jordan’s inconsistent statements still would have allowed defense lawyers to challenge Jordan’s credibility in the hope that a jury would let Ferrara walk.
Wolf ruled the government, by withholding the recantations and the accompanying memos, had violated Brady. Still, Wolf had to determine whether the violation had unfairly prejudiced Ferrara and Barone. Among other problems, Wolf found Ferrara’s lawyers couldn’t adequately advise him about his plea without knowing about Jordan’s new story.
“The government’s failure to disclose Jordan’s statements that Ferrara had not ordered the Limoli murder utterly undermines the court’s confidence in the outcome of Ferrara’s case,” Wolf wrote. “The court now seriously doubts that Ferrara ordered Barone to kill Limoli.”
Then his letters started showing up at central Justice. Auerhahn’s boss, U.S. Attorney Michael J. Sullivan, asked Wolf to back off and let the OPR do its job.
Wolf held his guns for a while. But mob figures or not, Barone and Ferrara remained in prison. In late October 2003, Wolf released Barone, finding intentional misconduct by Auerhahn and suggesting his testimony on the memos might have been perjurious. Three years later, the Boston-based 1st U.S. Circuit Court of Appeals backed Wolf and tore into the prosecutor: “To sum up, the government’s actions in this case do not depict some garden-variety bévue, but, rather, paint a grim picture of blatant misconduct.”
As 2006 came to a close, Wolf had heard nothing of the OPR investigation Sullivan promised. So where was it? Wolf asked then-attorney general Gonzales in a Dec. 8 letter.
“I made all the documents and information in the Ferrara and Barone cases available to OPR several years ago,” Wolf complained. “No information on the status or any results of the OPR investigation has been provided to me.” What the judge didn’t know was that the OPR already had opened and closed its investigation of Auerhahn months before Wolf’s inquiry. And in a Jan. 23, 2007, letter, David Margolis, an associate deputy attorney general, told him so.
“For your information, the OPR report of investigation concluded that AUSA Auerhahn engaged in professional misconduct and exercised poor judgment in connection with the Barone and Ferrara cases, and disciplinary action was taken against him,” Margolis told Wolf. Though Margolis offered no details at the time, Wolf eventually learned that the OPR had reduced the severity of the accusation—and consequently the range of penalties—by finding his conduct reckless instead of intentional.
Though Auerhahn had been reprimanded by the U.S. attorney, a private admonishment in the boss’s office wasn’t what Wolf had in mind. While the office investigates ethical complaints and can recommend a range of penalties, impo- sition of any sanction rests with the prosecutor’s supervisor, in this case U.S. Attorney Sullivan.
Neither Sullivan nor Auerhahn would comment. Sullivan, appointed by President George W. Bush in 2001, resigned on April 19. His departure had been anticipated with the change of administrations.
But Jarrett, who headed the OPR at the time, defends their work: “We investigated it thoroughly and wrote a report, and I stand by that report.”
Significantly, the two primary witnesses, informant Jordan and detective Coleman, both declined to coop- erate with OPR investigators after Ferrara’s lawyer objected. The OPR can force cooperation from DOJ employees, but it lacks subpoena power or other means to compel outsiders to talk. Although OPR lawyers questioned Barone’s trial counsel and had the testimony of Jordan and Coleman from court proceedings, the office ended up in large measure with the government’s side of the story, which included a cold court record, case files from the FBI and U.S. attorney’s office, and interviews with prosecutors.
By May 2007, Wolf still had not seen the OPR report, and his patience was wearing thin. He wrote Gonzales on May 11, demanding details on the OPR investigation or an explanation of why the department no longer intended to provide them.
Apparently that very day, Margolis sent him a copy of the final report, dated Jan. 10, 2005—more than two years before. Wolf didn’t like what he read, so he called in the state bar disciplinary counsel.
“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, re- peated and consequential misconduct,” Wolf wrote in a June 2007 letter to Gonzales, explaining why he reported the matter to the state. “However, the failure of the Department of Justice to satisfy its own duty of candor to the court in this litigation of the Ferrara case after the OPR made its previously undisclosed findings reinforces the conclusion that I invoke the district court’s disciplinary process.”
As of this spring, the Massachusetts ethics case against Auerhahn was with state disciplinary authorities, where it sits.
“As bar counsel, the cases that judges complain about are a lot of times ridiculous,” says Daniel Klubock, the state’s head disciplinary lawyer from 1980 to 1990. He also saw things from the other side when he served as a state trial judge. “As a judge, in 13 years I only reported two cases, and I didn’t like the way they were handled,” Klubock recalls.
Wolf is scarcely alone when it comes to judicial dissatisfaction with federal and state disciplinary agencies. Besides the Ferrara and Barone cases, he cites a half-dozen others in which judges in his district had to declare mistrials, usually under Brady.
Wolf also expressed irritation at the government’s behavior in the prosecution of rogue FBI agent John J. Connolly Jr., convicted of tipping off James “Whitey” Bulger and Stephen “the Rifleman” Flemmi about the identity of two witnesses against them. Bulger was the leader of Boston’s notorious Winter Hill gang; Flemmi was a reputed hit man.
Photo by John Tlumacki/
Connolly also warned Bulger that he was about to be arrested. Bulger fled and is still at large. Connolly was fingered by Kevin Weeks, a trusted Bulger associate who had helped dispose of one of the dead witnesses, John McIntyre.
Because of Connolly’s involvement with Bulger, McIntyre’s family sued the government. In the wrongful death action, Justice Department lawyers worked to discredit the very witnesses it had used to convict Connolly in the criminal case.
As the civil trial unfolded in 2006 before Wolf’s colleague, Judge Reginald C. Lindsay, Gonzales came to Boston to visit Wolf in his capacity as chief judge to assess the department’s performance in Massachusetts. Wolf had something else on his mind.
“I told the attorney general that the department has repeatedly taken inconsistent positions in prominent criminal and civil cases involving serious misconduct by the FBI,” Wolf wrote in his 2008 letter to Mukasey.
“The attorney general thanked me for providing this information and said he would look into the matter,” Wolf wrote. “However, I understand that there was no alteration of the government’s position.”
Lindsay, who died in March, issued an order for summary judgment after Gonzales left town, finding the FBI liable for one of the slayings and awarding the family $3 million in damages. Lindsay punished the government for its conduct by heaping on hundreds of thousands of dollars more in legal fees. Gonzales resigned in August 2007 amid ethical, legal and political clouds arising from his stewardship of the department.
Wolf’s scrutiny goes beyond high-profile cases, though. So few in Boston likely were surprised when Wolf announced in January that he not only was considering punishing a prosecutor for her conduct in the relatively low-level gun case against Jones but also hoped “to send an important message to her colleagues.”
Jones, a convicted felon, was arrested in July 2007 in Dorchester/ Mattapan, a high-crime Boston neighborhood. Officers from the city police and state police found a handgun in Jones’ pocket and, later, unspecified amounts of crack cocaine and marijuana when he was booked. Jones was in deep trouble. Because he was prosecuted federally, his lawyer says, the gun charge alone carried a 10-year mandatory minimum sentence; state law imposes one year.
But Boston police officer Rance Cooley gave conflicting accounts of Jones’ arrest. Though he testified at an October 2008 suppression hearing that he recognized Jones from dozens of previous encounters, Cooley reported to prosecutors that other officers had identified Jones.
The lead prosecutor, Assistant U.S. Attorney Suzanne Sullivan (no relation to U.S. Attorney Michael Sullivan), didn’t inform the defense about the conflicting stories. Wolf discovered the discrepancy when he privately reviewed AUSA Sullivan’s notes. Though he ruled that the deception was harmless, in effect, Wolf was angry at Sullivan’s omission, calling it “clear and inexcusable.”
“The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government’s duties,” Wolf wrote in a Jan. 21 order that kept Jones in jail.
He ordered Sullivan and her boss to file affidavits telling him why he shouldn’t punish her or the government. Possible penalties include a personal fine against the prosecutor, so Wolf ordered Michael Sullivan to disclose to him Suzanne Sullivan’s salary. She declined comment. A state prosecutor for 10 years before she joined the U.S. attorney’s office in 2006, she remains assigned to her office’s Organized Crime Strike Force, which she had joined just before Jones’ arrest.
As of early June, Suzanne Sullivan had not been disciplined. And in Feb. 10 affidavits, both she and Michael Sullivan contended that the bad publicity surrounding the event had been punishment enough.
“A finding of even negligent misconduct falls particularly hard on someone like AUSA Sullivan, and I know that the fact that she made a mistake—and the scrutiny she received under examination by the court, the public humiliation resulting from the issuance and publication of her name in the court’s order, the report of that order in the Boston Globe, and its discussion among AUSAs within the office—has been personally devastating to her,” her boss wrote.
And it won’t happen again, Suzanne Sullivan assured Wolf.
“I am respectfully asking this court to consider the damage to my reputation and the consequences for my future career if the court were to impose anything that is characterized as a sanction. I submit that such damage would be disproportionate to the mistakes I made.”
Jones, despite losing his motion, may get one of the better deals to come out of the case. He’s reached an agreement with prosecutors to plead guilty to a drug charge for five years behind bars—nearly two of which he’s already served. In return, prosecutors agreed not to pursue the gun charge, erasing the prospect of a mandatory minimum term.