A conservative judge on the U.S. Court of Appeals for the Eleventh Circuit has come to the rousing defense of Miami federal prosecutors accused of misconduct in a pill mill case.
The court posted but withdrew an opinion from its website last week. A new version late Tuesday added Judge William Pryor’s rebuttal to a dissent by Judge Beverly Martin. She chastised her colleagues for refusing full court review of a decision by a panel led by Pryor reversing $601,000 in sanctions ordered by U.S. District Judge Alan Gold in Miami against the U.S. attorney’s office.
The opinion offers a rare look at the legal and philosophical fissures within the Eleventh Circuit.
“Appellate decision making is a contact sport,” said Fort Lauderdale appellate attorney Bruce Rogow. “I think it’s great judges are voicing their competing thoughts.”
Martin, in her April 2 dissent, said the en banc denial was “myopic.” She said district judges need to be able to police rogue prosecutors in their courtroom.
Pryor took offense that Martin took a broader approach to the panel’s majority opinion penned by him.
“The dissent does not contest our ruling but instead ignores it altogether,” he wrote.
Pryor quoted the late Second Circuit Judge Henry Friendly that it was “of dubious policy” to dare to wade into an argument while not being part of the original panel. Pryor’s opinion was joined by no other judges.
Gold had ordered the government to reimburse Dr. Ali Shaygan under the Hyde Amendment, which calls for the government to pay for a defendant’s fees and court costs if the prosecution is “vexatious, frivolous or in bad faith.”
Pryor said sanctions under the Hyde Amendment can’t occur for “discrete actions that took place during that prosecution.”
The U.S. attorney’s office had no comment on the decision Wednesday.
“The extraordinary remedy provided by the Hyde Amendment applies only when a prosecution, assessed as an inclusive whole, is wrong,” Pryor wrote. “The prosecution of Shaygan, triggered by the death of his patient and supported by substantial evidence, was not wrong.”
Prosecutors Sean Cronin and Andrea Hoffman, without authorization from then-U.S. Attorney Alex Acosta, had two witnesses secretly tape phone calls to Shaygan’s defense team. The taping was revealed at trial by a witness during cross-examination.
Gold also ruled Cronin vindictively added more than 100 charges when Shaygan got his statement to authorities thrown out of court. The Miami Beach doctor was acquitted in a matter of minutes.
Defense attorney David O. Markus, a partner at Markus & Markus in Miami, said last week that he plans to petition the U.S. Supreme Court for review. Sources close to the case said this may be why Pryor added an 18-page explanation of his position after Martin’s scathing dissent was posted on the court website.
Rogow said Pryor, in an effort to head off Supreme Court review, may have actually helped Shaygan.
“He probably added fuel to the certiorari fire,” Rogow said. “I think he helped it by stating opposing views of the Hyde Amendment.”
The court initially denied the en banc hearing in a one-paragraph order accompanied by Martin’s dissent, which was supported by Judge Rosemary Barkett.
Judge J.L. Edmondson wrote a dissent in the 2-1 panel decision.
Markus echoed Martin’s dissent in saying that the circuit has hamstrung district judges.
“The court has gone out of its way to gut the only check district judges have on rogue prosecutors,” he said. “Judges Martin, Edmondson and Barkett recognize that judges must have the power to police their courtrooms, even when it involves prosecutors.”
Pryor, a 2005 appointee of President George W. Bush and former Alabama attorney general, said in the new opinion that Markus during trial “took advantage of the opportunity to focus the attention of the jury on the alleged misconduct by the government in the collateral investigation.”
Tew Cardenas partner Joe DeMaria, a former Miami federal prosecutor, was critical of Pryor’s case overview, saying he took the government’s arguments as if they won at trial and Shaygan got off on a technicality. “The appellate court should not take an acquittal and make it look like a conviction,” DeMaria said.
Jurors after acquitting Shaygan said they did not consider the taping of the defense as a factor in their verdict.
In an unusual scene after a trial, jurors asked for Shaygan’s business card and even hugged the defendant, who now practices in Sarasota, Markus said.
“Ali Shaygan was found not guilty in spite of the prosecutorial misconduct, not because of it,” Markus said. “Thankfully, Judge Gold did not allow the misconduct to be used to put an innocent man in jail.”
Pryor also took umbrage with Gold’s investigation of the misconduct, saying Cronin and Hoffman were denied due process.
“These professionals deserved better,” he said.
Martin, a former federal district judge and an Obama appointee who has been on the appellate court for two years, was emphatic in her dissent that Gold did not come to his conclusions speciously. Gold issued his findings in a 52-page report.
“The trial judge in this case performed his assigned role with great care,” Martin wrote in the dissent.
Checks and balances
Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit in San Francisco co-authored an article Tuesday for the Yale Law Journal Online. In it, he said there is an increasing number of circuit judges writing dissents and concurrences in orders denying en banc review.
While this has caused some rancor within the ranks, Kozinski — an appointee of President Ronald Reagan who spoke at the University of Miami on Tuesday night — took on Judge Friendly of the Second Circuit as “dissenting detractor.”
Friendly claims “dissentals are illegitimate because the authors were not members of the panel that originally decided the case,” said Kozinski, who wrote the article with Chicago attorney James Burnham, a Jones Day associate.
“But that misses the point: The judge is not dissenting from the panel opinion, but from the order of the full court declining to take the case en banc,” the article said.
Rogow, though, said Markus should send Pryor a thank you note for extolling his virtues as a lawyer.
“Rarely does a lawyer get the benefit of being called by a court of appeals judge in a published opinion ‘an elite defense attorney’ and ‘superb counsel,’ ” Rogow said.