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Legal Ethics

Federal Judge Sanctions US $600K for Secretly Taping Defense Lawyer

Posted Apr 9, 2009 11:24 AM CST
By Martha Neil

In a blistering 50-page opinion (PDF) today criticizing the "win-at-any-cost behavior" of federal prosecutors who secretly taped a defense lawyer, a federal judge in Florida has awarded more than $600,000 in sanctions against the government.

The money, which the United States must pay to a South Florida physician it accused of prescribing pain medication without a proper medical purpose, will cover more than half of Dr. Ali Shaygan's defense costs, reports the South Florida Sun-Sentinel.

The 36-year-old doctor, who lives in Miami Beach, was acquitted in March of 141 counts of unlawful prescribing. As a result of his overprescribing, the government had contended, a West Palm Beach man died of a drug overdose.

The prosecutors who tried the case were Sean Cronin and Andrea Hoffman. Midway through trial, the defense team learned that attorney David Markus, one of three lawyers representing Shaygun, had been secretly recorded by witnesses with approval from the government. The conversations—which the government says were made to investigate possible witness-tampering—violated legal ethics rules and U.S. Attorney's Office policy, according to the newspaper, because they were not disclosed to the defense prior to trial.

Alicia Valle, a spokeswoman for the U.S. Attorney's Office, says mistakes were unintentionally made in the case, and that it has been referred to the U.S. Department of Justice for further investigation, apparently concerning the conduct of the prosecution, according to the Sun-Sentinel.

After a two-day hearing after the jury's March 12 not-guilty verdict, U.S. District Judge Alan Gold awarded $601,795.88 to Shaygun. In his opinion, which accorded the most criticism to Cronin as lead prosecutor, the judge castigated the government for pursuing an "unfounded" witness-tampering probe based on "personal animus against the defense team," the newspaper writes.

Gold says he also intends to forward his sanctions ruling, which found that both Cronin and Hoffman acted unethically by not disclosing the recordings, to attorney discipline boards.

His opinion today follows another blistering blast earlier this week by a federal judge in Washington, D.C. He appointed a special prosecutor to investigate possible obstruction of justice by the federal prosecutors who tried former Sen. Ted Stevens in a corruption case last year and expressed concern that similar prosecutorial misconduct is occurring elsewhere.

Like the prosecutors in Shaygun's case, the Department of Justice lawyers who tried Stevens admittedly did not provide exculpatory evidence to the defense as required before trial.

Related coverage:

ABAJournal.com: "Special Prosecutor to Investigate Government Lawyers in Sen. Stevens Case"

ABAJournal.com: "Alaska Seeks Hatch Act Probe in Stevens Case, Supports Possible Tort Claim"

Politico: "Fed judges are fed up"

Comments

1.

B. McLeod
Apr 10, 2009 6:59 AM CST

This non-disclosure problem seems to be a recurring theme.  Maybe a special, DOJ-sponsored re-training program on the topic would be warranted.

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2.

Bird Smack
Apr 10, 2009 7:18 AM CST

Isn’t the Justice Department the largest law firm in the country?

BigLaw Rules!!!

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3.

Damian
Apr 10, 2009 9:18 AM CST

Give the the judge credit for not over looking the DOJ actions, although 600k was a slap on the wrist. this should send a message to all in the practice of law.

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4.

rs
Apr 10, 2009 9:28 AM CST

Prosecutorial misconduct should result in automatic disbarment.  They are messing with people’s freedom in order to get a head themselves.  If their freedom was on the line and knowing years of being raped in prison were ahead, I assume attorneys in the DOJ would not want this kind of conduct directed against them.

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5.

novacal
Apr 10, 2009 10:09 AM CST

Would the taping of the person without letting him or her know also not actionable civilly or criminally?

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6.

Kalifornia Arnold
Apr 10, 2009 11:26 AM CST

A $600K sanction for illegal taping should scotch any further action of this sort. A thought: can illegal taping be considered miscon—duct? (A sticky issue, to be sure)

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7.

John
Apr 10, 2009 11:52 AM CST

Totally agree with #4. Prosecutors are out of control.  Bunch of little Napoleons.  They should be held to a higher standard.  #6, that was terrible, just terrible.

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8.

rs
Apr 10, 2009 12:50 PM CST

I disagree poster 6, because this money doesn’t directly come from their pockets, it comes from taxpayers so its not a personal threat or issue to that invdividual prosecutor.

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9.

Kalifornia Arnold
Apr 10, 2009 1:27 PM CST

#7—Aside from your very correct legal analysis, what about the puns in my observations? (or need I ask?)

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10.

Disgusted by dishonest prosecutors
Apr 10, 2009 2:28 PM CST

In all seriousness, I agree with poster #4.  Disbarment—maybe 5 years for a first offense, lifetime for a second offense—is the only cure to prosecutorial misconduct.  Conduct like this, or the much more common Brady violations, can only be discouraged by threat of immediate and lasting disbarment.
Sanctions are a joke, because typically the government pays them, not the individual lawyer.  And dismissing the case?  Please, it’s a case that never should have been brought in the first place, if the prosecutor has to resort to cheating to try to win it.  So I say kick ‘em out of the club, take away their license to practice.  That message might get their attention.

(To #5, unauthorized taping is a tort in California only, I believe, and there are generous exceptions for law enforcement, which these DAs would no doubt try to weasel their conduct into.)

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11.

Adam
Apr 10, 2009 4:20 PM CST

I can’t count the number of times that I have heard of prosecutors evaluating all evidence in the light most favorable to themselves in deciding whether it is possibly exculpatory.  “This doesn’t mean he wasn’t at the scene of the crime, it just means he had to hurry to get there…don’t turn it over.”  They use a closing argument philosophy in determining what to disclose before the trial ever begins.  It’s disgusting and it’s an absolute violation of the rule of law, and it ought to result in being immediately disbarred.  I hated Sen. Ted Stevens, and now I hate the prosecutors that cost society their pound of Stevens’ flesh by being a bunch of slimy dirtbags during the prosecution of the case.  No one should EVER be allowed to prosecute that hasn’t spent AT LEAST five years on the defense first.  Seriously.

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12.

Q re #10
Apr 10, 2009 7:12 PM CST

What does “use a closing argument philosophy” mean?  I’m familiar with Brady violations, but have never heard that phrase.  Anyone explain please?

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13.

B. McLeod
Apr 11, 2009 4:49 PM CST

I think Adam is suggesting that some prosecutors are rationalizing that if they could argue in closing that evidence should not be relevant, they can also wihhold it, because they would argue it is irrelevant.  I think more than a few lawyers did this in civil discovery, back in the day, and such mental exercises contributed to the modern discovery rules where material is discoverable if it “could lead to” relevant evidence.  In the criminal context, I think prosecutors should err on the side of disclosure.  If evidence is really not exculpatory, or is not relevant, why go to pains not to turn it over?

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14.

John S.
Apr 13, 2009 11:21 AM CST

I generally agree with the discussion, but I think the audience thus far has been primarily those with criminal defense backgounds.  I’m curious what the prosecutor/“tough on crime” crowd thinks about this.

I like the idea of only hiring prosecutors from the ranks from defense bar, but I see that as completely unrealistic.  Especially when they would take a pay cut to start working at $40K.

The judges are supposed to be the check against overly agressive prosecutors, but that is a farce, in Michigan, most the circuit court judges (felony court) are former prosecutors.  The have no objectivity, no interest in checking prosecutorial discretion, and virtually prosecute from the bench.  The pre-trial phase is essentially two-on-one.  Two prosecutors, one in a black robe, and one defense counsel with no chance of winning.

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15.

TLC
Apr 13, 2009 1:05 PM CST

Did Alicia Valle, the Justice Department’s spokeswoman, actually say “mistakes were unintentionally made”!  As opposed to the mistakes the prosecution intentionally made?  And if DoJ already determined these were “unintentional mistakes” why is it referring the matter to itself for investigation?  If this article is accurate, maybe someone should investigate the hiring of spokepersons at the DoJ.  Or is this another example of the fine reporting we’ve come to expect from the ABA?

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