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 an appeals court overturned the fee award, saying that the prosecution was objectively reasonable. 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.
Thomas Goldstein of Washington's Goldstein & Russell is representing the former judges and prosecutors in support of Shaygan. Click here for a copy of the brief, filed August 9.
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 11th 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."
Judge William Pryor Jr. of the appeals court 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.