I still have residual respect, affection, and sympathy for federal prosecutors, despite the fact that the U.S. Attorney's Office in Los Angeles is currently run by a Grade-A dickhead and that it's become far more harsh and unreasonable during the Bush Administration. (Cynics would say that my perception is colored by becoming a defense attorney since I left that office.)
One area where I have residual sympathy is when AUSAs are accused of misconduct. I was the subject of a couple of such allegations, both completely frivolous. And I've seen judges make findings of misconduct without justification — including during my time as a defense lawyer. Such motions are, in the hands of some lawyers, tactical weapons, and should be treated with the same sort of skepticism you'd use to evaluate a claim of misconduct made by the government.
But I've never understood why, when a judge makes a finding of misconduct, and the Ninth Circuit affirms, the offending AUSA's name is usually omitted from the published opinion. Case in point: the Ninth Circuit just decided United States v. Chapman, in which a fairly conservative panel of the Circuit decided unanimously that the district court correctly dismissed an indictment for misconduct when the prosecutors wrongfully failed to disclose witnesses' past convictions and other impeachment information, in some cases until after the witnesses had testified. The district court held that the failure was flagrant, willful, and in bad faith, a finding upheld by the circuit. Apparently when the defense complained that it had never received the impeachment discovery, the prosecutors first asserted to the court that they were sure that it had been turned over, and later conceded that they could not demonstrate that it had been turned over because they had not kept any record of what documents had been produced in discovery in a case with hundreds of thousands of pages of evidence. Moreover, at least some of the impeachment documents bore time-stamps showing they were not produced until after trial started. As the Ninth Circuit found, at the very least that's completely reckless behavior.
And yet the Ninth Circuit does not print their names in the published opinion. Why not? The Ninth Circuit prints the names of people accused of crimes, even when it reverses their convictions. The Ninth Circuit frequently prints the names of defense attorneys accused of ineffective assistance of counsel. The Ninth Circuit prints the names of attorneys who are sanctioned in the course of disputes in civil cases. What's the excuse for not naming names when prosecutors are found to have committed serious misconduct infringing on the rights of defendants?
Although I can imagine myself in their position, I can't justify that they should be treated specially. I therefore join Crime & Federalism and Simple Justice in naming them as Greg Damm and Kimberly Frayn. The details of what they did can be found in the opinion. Without naming him, the opinion suggests that Damm did the talking, but it's clear that Frayn was on the trial team, and equally obligated to ensure that justice was done. The press originally covered the matter briefly here.
Last 5 posts by Ken White
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