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Appellate Practice

Coalition of Nearly 70 Former Judges, Prosecutors Urge High Court to Hear Gov’t Misconduct Dispute

Posted Aug 13, 2012 6:15 AM CDT
By Molly McDonough

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Nearly 70 former federal judges and prosecutors are taking the side of a defendant and urging the U.S. Supreme Court to take up an appeal of a doctor trying to recoup damages from the DOJ for prosecutorial misconduct.

The case involves Florida doctor Ali Shaygan, who was awarded more than $600,000 in damages and fees after he was acquitted on charges relating to a fatal drug overdose of a patient, CNN reports. The sanction was levied against the DOJ for, among other things, secretly taping a defense lawyer during the case.

Defendants under the Hyde Amendment are allowed to recoup fees if the government's criminal case against them is deemed "vexatious, frivolous or in bad faith," the Blog of Legal Times notes.

But last year, the 11th Circuit overturned the fee award, saying the trial judge abused his discretion for imposing sanctions "for a prosecution that was objectively reasonable."

The 69 retired judges and former prosecutors are attacking the merits of the 11th Circuit's decision, which they argue conflicts with the purpose and text of the Hyde Amendment. In an amicus brief (PDF) filed by Tom Goldstein, of Goldstein & Russell, the judges and prosecutors say they "are deeply concerned that the 11th Circuit's decision will allow serious prosecutorial misconduct to be excused and, in so doing, will undermine public confidence in our system of justice."

CNN notes that in addition to the unusual coalition of judges and prosecutors, Shaygan's appeal is being supported by Constitution Project and the National Association of Criminal Defense Lawyers. The DOJ has until Sept. 10 to file a response.

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