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A public scolding of the U.S. Attorney’s Office has turned into a lesson for the entire Northern District criminal bar in California: Watch your p’s and q’s in the courtroom of U.S. District Judge Jeffrey White. White recently lit into prosecutor Michael Wang for his office’s bungling of an immigration case. Potentially exculpatory material was not turned over to the defense until the eve of trial, and subpoenas were issued post-indictment. Those no-no’s were compounded by prosecutors not following White’s standing orders. During a hearing to determine whether he should sanction prosecutors for their behavior, White broadened his attack, criticizing criminal practitioners on both sides of the table. He said there was a “culture of continuances” in the Northern District that delays the resolution of criminal cases; there is too much “unexplained tardiness” at court hearings; and, the judge said, he’s too frequently seeing inaccurate plea agreements that need to be corrected in court. “And then something that is particularly offensive to this court is the lack of professionalism shown by U.S. Attorneys and, as well, public defenders talking in court,” White said, according to a court transcript (available at www.callaw.com). The judge said he was tired of attorneys speaking to each other while other hearings were going on. And he singled out “junior” prosecutors for talking “to my staff in a condescending way, in a disrespectful and sarcastic way.” “That is not going to be tolerated,” White said. White delivered his remarks during a court appearance March 10. Afterward, he ordered the U.S. Attorney’s Office to obtain a transcript of the scolding and distribute it to everyone in the office’s criminal division. It has since been forwarded to lawyers in private practice. Luke Macaulay, spokesman for U.S. Attorney Kevin Ryan, said First Assistant Eumi Choi advised the criminal division lawyers of the need to address White’s concerns. “We take the court’s remarks very seriously, and we always strive to meet the court’s expectations and will continue to do so,” Macaulay said. Federal Public Defender Barry Portman also got a copy of White’s remarks. “Judge White is justifiably evenhanded in his approach,” Portman said. White declined to comment, as did a handful of other judges contacted Thursday. Soon after President Bush appointed him in 2002, White developed a reputation for trying to resolve cases quickly. Some lawyers point to the 24 years he spent at Orrick, Herrington & Sutcliffe as explanation, saying White is used to a private practice in which lawyers have plenty of help to move their calendars forward. But criminal practitioners say that can be tough, especially for prosecutors and federal defenders, who do not rely upon legions of assistants. White’s comments were prompted by problems with evidence in an indictment brought in the fall. A grand jury charged Minh Hong Duong with three counts accusing him of taking $30,000 to arrange a sham marriage to get U.S. citizenship for a Chinese national. Early on, defense attorney Peter Goodman of San Francisco said he requested Brady material from Assistant U.S. Attorney Kirstin Ault. She told him she turned over all relevant discovery, he said. But on Feb. 1, just a few weeks before the case was scheduled to go to trial, the case was re-assigned to Robert Rees, a recent law school graduate, and William Shockley, a veteran prosecutor. The new attorneys discovered that material that should have been turned over was not. And there were other problems, including post-indictment subpoenas and an undisclosed government interview with Duong. After Goodman asked for a continuance, prosecutors dismissed the case and White issued an order to show cause why he shouldn’t sanction the office. Besides the evidence trouble, White was also irritated that a prosecutor had violated his standing orders not to make ex parte communications with him and that Wang once showed up in court instead of Rees and Shockley. White doesn’t want prosecutors appearing on each other’s behalf. “If the U.S. Attorney is going to treat itself as if the lawyer is fungible,” White said. “Then this court is going to take the same position and set dates and hearings irrespective of the particular Assistant U.S. Attorney before it.” White said other judges were perturbed too. But his comments weren’t all negative. “The sad part of all this is that I think that the work of the U.S. Attorney’s Office here, as well as the public defender’s office, is excellent,” White said. “All this other stuff is noise in the background.” He singled out first assistant Choi for her handling of the controversy. “I particularly appreciate Ms. Choi’s very positive and constructive reaction. It was not defensive. It was constructive. I would like to see more of that,” White said.

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