WASHINGTON - More than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct, taking a position in the case against the Justice Department.
The coalition, which includes retired district and appellate judges and former U.S. attorneys, is advocating for a doctor in Miami whom the government unsuccessfully prosecuted in a drug case. The statute in question allows defendants to recoup fees if the government’s stance in a criminal case was “vexatious, frivolous or in bad faith.”
The doctor, Ali Shaygan, was awarded nearly $602,000 in legal fees following the botched prosecution, marred by claims of prosecutorial misconduct. The trial judge sanctioned the government for, among other things, a witness tampering probe against Shaygan’s attorney and the prosecutors’ alleged violation of disclosure requirements.
But the U.S. Court of Appeals for the Eleventh Circuit overturned the fee award, saying the prosecution was objectively reasonable. (Read the Eleventh Circuit opinion.) The divided ruling set up the appeal in the Supreme Court, which has not acted on the petition that Shaygan’s lawyer, David Markus of Miami’s Markus & Markus, filed this summer.
Federal circuit courts in California, New York and Virginia in the past three years have each upheld the denial of legal fees in cases under the Hyde Amendment.
At the Second Circuit, a three-judge panel in 2009 refused to award more than $195,675 to two Russian brothers who were acquitted at trial in an extortion case. United States v. Mitselmakher, 347 Fed. Appx. 649. The trial judge, Eastern District Judge Brian Cogan, said the government made “critical mistakes” in bringing the case, but the Hyde Amendment, he said, doesn’t sanction “poor judgment or myopia.”
Thomas Goldstein of Washington’s Goldstein & Russell is representing the former judges and prosecutors in support of Shaygan, whose brief was filed Aug. 9. (Read Goldstein’s brief.)
Wilmer Cutler Pickering Hale and Dorr filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers. Mark Srere of Bryan Cave is counsel of record for The Constitution Project on its amicus brief.
The amicus brief from the judges and prosecutors attacks the merits of the Eleventh Circuit decision, which said monetary fees are available to defendants under the Hyde Amendment only in situations in which a prosecution itself is deemed unreasonable.
“That holding is a bolt from the blue,” Goldstein wrote in the brief, saying the appellate court decision conflicts with the text and the purpose of the Hyde Amendment.
The former judges and prosecutors “are deeply concerned that the Eleventh Circuit’s decision will allow serious prosecutorial misconduct to be excused and, in so doing, will undermine public confidence in our system of justice.”
Among the former New York prosecutors signing the amicus brief are Zachary Carter, U.S. attorney for the Eastern District from 1993 to 1999, and John Martin, assistant U.S. attorney in the district from 2003 to 2008.
Carter, currently co-chair of Dorsey & Whitney’s white-collar crime and civil fraud practice, said he “agreed with the position that was taken in the brief that the Hyde Amendment should be read to address prosecutorial misconduct even in situations in which there may have been probable cause to bring charges.”
“I can’t imagine this issue not being important to anyone who has been involved in the criminal justice system,” he said. “It is about the integrity of the process. That is, whether prosecutors are doing the right things for the right reasons. When they don’t, it places public confidence in the system in jeopardy.”
Martin said that “ever since I left being a prosecutor and became a defense attorney, I’ve read about and noted what I believe to be an increase in the number of cases where prosecutors are found to have done something unethical,”
He added that he takes it “somewhat personally” when prosecutors behave in that fashion.
Martin, a partner at Garfunkel Wild, said he had read the facts of the Shaygun matter, and “it struck me as a case where an innocent person was prosecuted, and even though he was acquitted…he was broke.”
He said the award of legal fees “seemed like a completely just result.”
“The government has to be held to at least a similar standard to everyone else, particularly when they have so much power to destroy people’s lives,” he said.
Judge William Pryor Jr. of the Eleventh Circuit wrote in April that judges must look at the overall prosecution, not merely discreet actions that occurred during a case.
The prosecution of Shaygan, charged in a drug case stemming from the overdose death of a patient, was not inappropriate, the majority on the appeals court said.
“Traditional sanctions exist for discrete wrongs like discovery violations that occur during an otherwise reasonable prosecution, but an award of attorney’s fees under the Hyde Amendment is not one of those sanctions,” Pryor said. “The Hyde Amendment is concerned with wrongful prosecutions, not wrongs that occur during objectively reasonable prosecutions.”
Writing in dissent, Judge Beverly Martin said the majority decision “will render trial judges mere spectators of extreme government misconduct.” The brief from the ex-prosecutors and judges highlights in part Martin’s dissent.
“When a court bends the law to excuse a prosecutor’s bad faith, public confidence in the criminal justice system suffers,” the amicus brief said.
@|Mike Scarcella, a reporter t The National Law Journal, an affiliate, can be contacted at firstname.lastname@example.org. Brendan Pierson contributed to this report.