The Justice Department doesn't want the U.S. Supreme Court to hear a dispute over alleged prosecutorial misconduct, urging the court to keep in place a ruling that voided an award of more than $600,000 in attorney fees to a Miami doctor who was acquitted in a drug case.
Responding to the Justice Department today, Dr. Ali Shaygan's lawyers continued their effort to convince the high court to review the decision of the U.S. Court of Appeals for the 11th Circuit to dismiss the legal fee award.
At issue is this: Under what scenario is a criminal defendant allowed to recoup legal fees under the Hyde Amendment? Federal law says a defendant can try to obtain fees if the legal position of the United States was vexatious, frivolous or in bad faith. But those terms are not defined.
The Justice Department said in its Supreme Court papers that a defendant must show at the start that a case itself should never have been brought in the first place. Shaygan's chief lawyer, David Markus, said today in response that the government is attempting to craft a new provision under the Hyde Amendment. Shaygan's brief is here.
"In the government's view, a mere finding of probable cause by a grand jury is enough to insulate bad prosecutors," Markus said in court papers. "But the grand jury is simply not an effective protection for defendants."
Markus said the Justice Department's "fundamental revision of the Hyde Amendment's plain language is made without citation to the statute or a single case."
The government's brief in the high court said Shaygan is not entitled to fees "because the petition of the United States in prosecuting him was not taken in bad faith."
"An award of fees and costs under the Hyde Amendment presupposes the existence of a prosecution that the government should not have brought or pursued," the DOJ brief said. "When the government does bring or pursue such a prosecution and a defendant can establish that it did so for an improper purpose, the defendant can establish bad faith under the Hyde Amendment."
The trial judge in the Shaygan case, Alan Gold of U.S. District Court for the Southern District of Florida, ordered the government to pay nearly $602,000 in fees and costs as a sanction for alleged misconduct. The judge pointed to the prosecution's initiation of a witness tampering probe targeting Shaygan's attorneys and the government's violation of requirements to turn over certain information to Shaygan's counsel.
An 11th Circuit panel overturned the decision. Later, the full appeals court, divided, declined to hear the case. Judge William Pryor Jr. wrote in denying full-court review that "the Hyde Amendment is concerned with wrongful prosecutions, not wrongs that occur in objectively reasonable prosecutions."
In August, more than sixty former judges and federal prosecutors—represented by Thomas Goldstein of Washington's Goldstein & Russell—filed a brief in support of Shaygan. The brief called the 11th Circuit ruling "a bolt from the blue."
The judges' and prosecutors' brief said the appellate court decision "sends a signal that prosecutors may pursue a vindictive agenda with impunity so long as they have reason to believe in the defendant’s guilt."
Markus said in his brief filed today that the 11th Circuit decision "insulates the government from sanctions in the face of extreme bad faith misconduct."
"When a defendant is found not guilty and can show that the government tried to convict by cheating, he should be able to recover his fees and costs," Markus said.
It is to be hoped that the Supreme Court will take this case. Henry Hyde offered his eponymous amendment after having personally experienced abusive Department of Justice tactics that are all too familiar to the criminal defense bar. Hyde was a Congressman, however, and in a position to do something about it.
Unhappily for others who have suffered similar treatment, the courts have chipped away at the Hyde Amendment -- imposing, for example, high burdens of proof of subjective evil intent on the part of prosecutors that erstwhile criminal defendants and their lawyers are not likely to have or find. Now the 11th Circuit says that a Grand Jury indictment represents a "Kings-X" against any suggestion that a prosecution was in bad faith.
Setting aside the obvious point that prosecutions having a foundation in probable cause can be so abusively pursued as to be in bad faith (consider the case of the late Sen. Stevens, as to whom the DOJ had a colorable case but from whom it withheld significant evidence that completely impeached its key witness), the premise on which the DOJ presumably bases its argument (that grand juries operate independently, and their indictments represent the imprimatur of approval of an impartial decisionmaker)is not tenable in light of the recent history of grand jury practice.
The DOJ persuaded the Supreme Court in U S v Williams that it had no duty to present exculpatory evidence to grand juries. So a grand jury's actions cannot be seen as an endorsement of the good faith of a prosecution; they are no more than judgments that the minimal standards of probable cause are met in cases where a true bill is reported. Henry Morganthau, a prosecutor of great stature, observed that a prosecutor can get a grand jury to indict "a ham sandwich", and at Rocky Flats the DOJ proved it is not really devoted to the principle of grand jury independence (see http://jonathanturley.org/2007/10/19/grand-jury-secrecy-and-the-rocky-flats-grand-jury/).
There is very little available by way of effective checks on federal prosecutorial misconduct. State disciplinary authorities rarely involve themselves in such matters (often on the mistaken assumption that prosecutorial misconduct is routinely corrected by the trial courts). The DOJ's Office of Professional Responsibility does not appear to be a very aggressive watchdog. It is a healthy thing if the DOJ fears the Hyde Amendment; it is to be hoped the Court rebuffs the 11th Circuit's effort to further limit its utility.
Posted by: John Q Publique | October 22, 2012 at 08:04 PM