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A three-judge panel will hold a hearing Friday to determine whether Boston federal prosecutor Jeffrey Auerhahn should be disciplined for allegedly withholding exculpatory evidence, which forced another federal judge to release purported mobsters from prison. Judge Joseph Tauro of the District of Massachusetts tapped district court judges George O’Toole Jr., William Young and Rya Zobel for the panel. Chief Judge Mark Wolf sparked the disciplinary case against Auerhahn by making a complaint to the Massachusetts Bar Counsel, then handed off the federal court case to Tauro. Wolf’s June 2007 letter to the bar counsel’s office detailed Auerhahn’s missteps while prosecuting alleged mobsters Vincent Ferrara and Pasquale Barone in two District of Massachusetts cases, Barone v. U.S. and Ferrara v. U.S. Auerhahn allegedly did not disclose that a government witness had recanted some statements about the defendants’ involvement in a Boston murder. According to court papers, Auerhahn’s alleged misconduct conduct occurred between 1991 and 1993 and was disclosed to the court in August 2002. In 2003, Michael Sullivan, then the U.S. Attorney for the District of Massachusetts, asked Wolf to wait for the results of a U.S. Department of Justice’s Office of Professional Responsibility inquiry of the allegations “before making findings of misconduct or a referral” to the bar counsel’s office. In January 2005, the Office of Professional Responsibility issued a 112-page report stating that Auerhahn acted in “reckless disregard of discovery obligations,” but it found no intentional professional misconduct. Following the report, which also concluded that Auerhahn “exercised poor judgment,” Sullivan privately disciplined Auerhahn with a written reprimand. Wolf wrote a letter to former Attorney General Michael Mukasey in January 2008, criticizing the Justice Department’s discipline of Auerhahn. Last April, Wolf also wrote a letter asking Attorney General Eric Holder Jr. to review the Auerhahn matter. Massachusetts Bar Counsel Constance Vecchione did not return a call for comment. The U.S. Attorney’s Office for the District of Massachusetts declined to comment, as did two of Auerhahn’s lawyers in the Boston office of K&L Gates: of counsel Arnold Rosenfeld and partner Michael Ricciuti. Punishment for prosecutorial misconduct isn’t rare, but courts are usually satisfied with the discipline imposed by the Justice Department’s Office of Professional Responsibility, said Denis King, a former federal prosecutor and a litigator at Boston-based Goulston & Storrs. King isn’t representing anyone in the case and has no special knowledge about the allegations. “A lot of times it never gets to this point because the misconduct that is alleged is not as egregious as the allegations in this particular case,” King said. The case is serious in part because it involves alleged violations of rules handed down by two U.S. Supreme Court cases, he said. The 1963 Brady v. Maryland ruling imposes “an absolute obligation to disclose exculpatory evidence,” and the 1972 Giglio v. U.S. decision requires prosecutors to disclose a witnesses’ inconsistent statements that can be used to cross-examine or discredit that witness. “Like everything else, it’s kind of a scale of seriousness,” King said. “There are Brady violations and then there are Brady violations.” Auerhahn’s failure to disclose the exculpatory evidence, which came to light when the informant contacted the Justice Department, “is serious stuff,” King said. The context of Auerhahn’s alleged actions, a racketeering case involving alleged mobsters who faced substantial jail terms as opposed to a misdemeanor, makes the misconduct more egregious, King said. It was almost unheard of a few years ago for prosecutors to face charges for alleged Brady violations but recent examples are starting to crop up, said James Moliterno, the Vincent Bradford professor of law at Washington and Lee University School of Law in Lexington, Va. Moliterno cited the case against former U.S. Senator Ted Stevens, R-Alaska. The Justice Department was forced to throw out the indictment in that case after it discovered that prosecutors withheld evidence from Stevens’ defense attorneys. “The tide is turning in terms of the expectations of the bar authorities and courts in relation to U.S. Attorneys and prosecutors turning over exculpatory material,” Moliterno said.

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