A federal prosecutor developed a “close personal relationship” with a defendant in a case he was prosecuting. The defendant got a sweetheart plea deal releasing the defendant from custody.
Who is this prosecutor? The public will never know.
Nor will it ever know the names of any other rogue assistant U.S. attorneys who withheld crucial evidence from defendants or committed other unethical acts.
All the American people ever get from the Justice Department’s Office of Professional Responsibility is a thumbnail of an event, and, if lucky, the discipline meted out.
A recent report produced by the Project on Government Oversight found the OPR has a policy of not naming problem prosecutors it investigates to avoid embarrassing them. The project is a nonpartisan watchdog that champions good government reforms. It got its start in the 1980s looking at Pentagon overruns.
“The lack of transparency insulates the Justice Department from meaningful public scrutiny,” said Danielle Brian, POGO’s executive director. “Our findings raise serious concerns that the attorney general’s office isn’t aggressively overseeing or disciplining its bad apples.”
The project’s report in March was compiled from responses to Freedom of Information Act requests, OPR’s annual reports and other sources. The report found OPR ignored a 1993 directive during the Clinton administration to become more transparent and adopted a policy under President George W. Bush of not naming prosecutors.
The Los Angeles Times in 2008 reported a memo from then-associate deputy attorney general David Margolis said his goal was to get speedy dispositions of allegations against “our attorneys” and to do it “without unnecessarily or gratuitously … publicly humiliating our line attorneys as individuals.”
Sanctions Are Rare
For some South Florida criminal defense attorneys, the lack of accountability for federal prosecutors is maddening, especially to practitioners who experienced it firsthand.
“Transparency and openness is the hallmark of freedom,” said West Palm Beach criminal defense attorney Tama Beth Kudman. “The fact that dialogue is being shut down on any level should serve as a warning in and of itself that the system is broken on some level.”
Miami defense attorney Joseph DeMaria, a partner at Fox Rothschild and former federal prosecutor, said the government has no problem throwing the lives of their criminal targets upside down by publicizing indictments, “but when their own prosecutors are wrongdoers, they circle the wagons and cover it up.”
He represented American Express Bank International official Sergio Masvidal, who was forced to spend tens of thousands of dollars suing the Justice Department to have his named cleared after a prosecutor had him secretly blackballed from the banking industry.
The Justice Department issued a rare letter of apology to Masvidal in 2010 for the actions of John William Sellers, a former trial attorney in the asset forfeiture and money laundering section of the Justice Department’s criminal division.
In another Sellers case, Miami attorney Ben Kuehne was charged in 2007 with vetting a drug kingpin’s money sources. Charges were eventually dropped, and Sellers shipped off to the Treasury Department.
“In case after case, time and again, federal prosecutors have engaged in serious misconduct that adversely impacts case outcomes,” Kuehne said. “And yet these perpetrators are rarely investigated, disciplined or sanctioned. It is obvious the Department of Justice is not capable of enforcing the established rules.”
A call to OPR for comment about its policy of not naming prosecutors was not returned.
In Miami, Senior U.S. District Judge Alan S. Gold in 2009 directed OPR to investigate and report back to him on assistant U.S. attorneys Sean Cronin and Andrea Hoffman and their handling of the pill mill prosecution of Dr. Ali Shaygan.
After Shaygan’s acquittal, Gold issued a blistering report saying prosecutors “acted vexatiously and in bad faith” by vindictively adding more than 100 counts after the Miami Beach physician refused to drop a challenge to the admission of his statements to investigators. The prosecutors had witnesses record phone calls with Shaygan’s defense team, which accidentally came out during cross-examination.
Gold was so incensed he ordered the U.S. attorney’s office to pay Shaygan’s $601,000 defense bill and referred his report to OPR and to the prosecutors’ respective bar associations.
The sanctions were reversed on appeal when the U.S. Court of Appeals for the Eleventh Circuit ruled the prosecutors were denied due process.
Attorney David O. Markus, Shaygan’s attorney, didn’t comment directly on the case but said, “It’s almost unheard of for courts to police prosecutors, and when they do, nothing ends up happening in the end.”
OPR may have taken the appellate ruling as negating all of Gold’s instructions, but there is no indication in the docket the OPR followed Gold’s instructions.
Both Cronin and Hoffman were reassigned temporarily but soon were back prosecuting criminal cases.
U.S. District Judge Marcia Cooke in Miami last year ripped into Hoffman for lying to her in a drug case about members of the Colombian national police being on the U.S. government payroll.
Hoffman also was the prosecutor in a case of mistaken identity when a former Colombian aviation official was charged in a drug trafficking case even though her witnesses said the wrong person was charged. The incident was so egregious the A&E cable network highlighted Carlos Ortega Bonilla’s case on its series, “Presumed Innocent,” last year. Hoffman has been reassigned to the appellate division.
Some federal judges have been critical of OPR.
In 2008, U.S. District Judge Mark L. Wolf in Massachusetts wrote the Justice Department criticizing its secret and mild discipline of assistant U.S. attorney Jeffrey Auerhahn. Wolf said Auerhahn’s misconduct resulted in a known mob figure being released from prison.
“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 pursuing discipline for Sellers in the Masvidal case, DeMaria said he had to file a complaint with the prosecutor’s bar association in Maryland after becoming frustrated with OPR.
He said that prosecutors are afforded the same protections as other federal workers in the civil service, which makes it hard for bad ones to be fired.
“A prosecutor has the power over citizens to make life and death decisions and should not be given union protection like a postal worker,” DeMaria said.