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Finding that federal prosecutors violated ethical rules by accidentally sending a victim’s rights letter to a man who was actually targeted in the investigation, a federal judge has disqualified the entire Philadelphia U.S. Attorney’s Office from handling the case and ordered the U.S. attorney general to appoint a new prosecutor “with no connection to that Office.” “We find that the government’s evidently casual attitude towards communications with investigation targets … risks undermining the integrity of the subsequent prosecution where these communications later turn out to have been false,” federal Judge Stewart Dalzell of the U.S. District Court for the Eastern District of Pennsylvania wrote in a 23-page opinion in United States v. Whittaker. Wayne Whittaker was indicted in February on charges that he arranged to have his own car stolen so that he could avoid future lease payments. His case is part of a much larger investigation that targeted Philadelphia area “chop shops.” But just before he was indicted, Whittaker received a letter from Assistant U.S. Attorney Robert Reed that began: “Following a four-year investigation, we have identified you as a victim of a federal crime involving the theft of your motor vehicle as part of a massive chop shop ring centered in Philadelphia.” Whittaker already knew that he was under investigation, having been subpoenaed two months before that to give the FBI fingerprints and handwriting exemplars. When he received the victim’s rights letter, Whittaker called his lawyer, Samuel C. Stretton, who in turn called prosecutor Reed, who told him that it was a mistake and that Whittaker was still considered a target. After the indictment was handed up, Stretton moved to have the case dismissed, calling the prosecution’s conduct “outrageous.” When Dalzell refused to dismiss the case, Stretton changed his tactic and moved for disqualification of the Philadelphia U.S. Attorney’s Office, claiming it had violated a slew of ethical rules. Now Dalzell has ruled that the prosecutors violated two ethical rules and that the case must be prosecuted by someone from outside the office. “While we concede that this behavior is towards the lower end of the egregiousness spectrum for prosecutorial errors, it nonetheless is exactly the sort of behavior that may bring our system into disrepute with the citizenry if condoned by the judiciary,” Dalzell wrote. “Simply put, when the United States Attorney’s Office brings the weight of the federal government to bear against a citizen, it must do so with precision and with an appropriately cautious eye to the rights and interests of the presumed-innocent persons it investigates and seeks to indict.” In his research, Dalzell said he found “no other case presenting such extraordinary conduct on the part of the government.” Dalzell was harshly critical of prosecutor Reed, who, he said, was “visibly bemused” when he testified in Dalzell’s court about how the letter came to be sent to Whittaker. The judge said he concluded that Reed “rather seemed to regard the whole episode with the seriousness of a misdirected letter from Publisher’s Clearinghouse. This view is perhaps understandable, as AUSA Reed admitted that he not only allowed a paralegal to assemble the list of about 200 victims, but permitted her to copy his signature for each letter.” Reed testified that he never reviewed this list of victims, which he believed the FBI had supplied to the unsupervised paralegal, Dalzell noted. Since April 1999, Dalzell said, federal prosecutors, along with all government lawyers, are now subject to the ethical rules of the states where they work due to an act of Congress known as “the McDade Amendment,” named after former Pennsylvania Rep. Joseph McDade, who was indicted in Philadelphia on bribery charges and acquitted by a jury. But Dalzell said the McDade Amendment is so new that there is no case law yet applying state ethical rules to government prosecutors. Dalzell said his first task was to determine whether the victim’s rights letter sent to Whittaker had created an attorney-client relationship. Such letters are now routinely sent to crime victims due to the Victims’ Rights and Restitution Act of 1990, which gave victims specific rights including the right to confer with prosecutors about their cases. Dalzell said that since the law gives victims the right to confer, “it involves no great reach to infer that there must be some degree of confidentiality in that right of conference, and therefore something resembling what is usually thought of as a client-attorney relationship or the expectation of one.” But since the law also explicitly says that victims have no right to sue for violations of the law, Dalzell concluded that its provisions “do not create a client-attorney relationship or a reasonable expectation of one.” At a May 24 hearing, Dalzell said, the government made it clear that it believes “Whittaker is a criminal and not a victim.” But in saying so, Dalzell said, “the government reveals the Jan. 29 victim letter to be a palpable falsehood, thereby triggering Pennsylvania Rules of Professional Conduct 4.1(a) and 4.3(c).” Since Reed knew that Whittaker had a lawyer when the letter was sent, Dalzell concluded that the prosecutor knowingly communicated with a represented person. But Dalzell ultimately concluded that Reed didn’t violate ethical rules in doing so, since the Court of Appeals has held that a target of an investigation is not a “party” to a “matter” before he is indicted and that communications with a target preindictment therefore cannot run afoul of Rule 4.2 of the Pennsylvania Rules of Professional Conduct. Nonetheless, Dalzell criticized the government for downplaying the seriousness of its error. “Of course, the Government is now at pains to heap ashes on the January 29 victim letter, calling it a ‘mistake’ or the product of a sloppy paralegal or of overworked FBI agents or of beleaguered AUSAs that really amounts to no more than a misdirected piece of junk mail,” Dalzell wrote. “But no fair-minded person could read the letter as junk mail. It looks in every way like an individually typed and manually signed official communication from the United States Department of Justice.” Turning to Rule 8.4(d), which bars “conduct that is prejudicial to the administration of justice,” Dalzell found that Reed had committed a violation. “Surely ‘public confidence in the integrity of legal institutions,’ especially in the lawyers who practice in them, should be at their acme for prosecutors,” Dalzell wrote. “Against such an ethical and institutional expectation, the cavalier conduct of the United States Attorney’s Office falls short. … The prosecutors put Whittaker on a roller coaster, one day, Nov. 6, 2000, subpoenaing him to go for photographs, fingerprints, and handwriting exemplars, and another day, Jan. 29, 2001, telling him that ‘a four-year investigation’ has ‘identified you as a victim … as part of a massive chop shop ring.’ This is, in short, no laughing matter.” Reed conceded in his testimony at the hearing that Whittaker was not the only target in the investigation to receive a victim’s rights letter by accident. That fact incurred more of Dalzell’s wrath. “While these other target-victims are not before us, their existence confirms the seriousness of the fiasco we consider here. In its repeated unprofessional conduct, the Office has here prejudiced the administration of justice and undermined public confidence in a most sensitive part of our legal institutions,” he wrote. In deciding how to remedy the problem, Dalzell said that his task was to balance the interests of Whittaker and the government along with the public’s and the court’s own interests “in protecting the integrity of the proceedings and maintaining public confidence in the judicial system.” Whittaker, he said, “holds a clear and strong interest in knowing that the decision to continue his prosecution was made after an objective examination of the circumstances and evidence associated with his case, and in knowing that the contrary views evidently held about him by this United States Attorney’s Office have been conclusively reconciled.” By contrast, Dalzell said, the government won’t be prejudiced much at all by having the case reassigned to an outsider. In an interview late Monday, U.S. Attorney Michael Levy said he is studying the opinion and has not yet decided whether to appeal it. But Levy said he does believe the ruling is immediately appealable. Although a criminal defendant cannot file an immediate appeal when his defense lawyer is disqualified, Levy said, the logic of that rule is that the defendant can appeal the issue after he is convicted and needn’t bother if he is acquitted. But if the government loses a case, it has no right to appeal and therefore must be allowed to pursue an appeal before trial, he said. Levy declined to comment further on Dalzell’s ruling except to stress that the judge found that the incident was an error and that it had “no consequences” for the defendant.

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