Giving credence to the adage that honesty is the best policy, a panel from the Fifth Circuit Court of Appeals in United States v. Dvorin affirmed the district court’s finding that the lead prosecutor “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” during a bank fraud prosecution by withholding material evidence concerning the credibility of a key government witness, and also by knowingly using false testimony to obtain a conviction. The panel also found that the government failed to overcome the presumption of prosecutorial vindictiveness because it added an additional forfeiture notice once forced to retry the case as a result of prosecutorial misconduct during the first trial.The 5th Circuit vacated the forfeiture holding but declined to apply additional sanctions at retrial. Defendant Dworin:
sought dismissal of the indictment with prejudice as a sanction for Sauter’s misconduct, or alternatively precluding [alleged accomplice Chris] Derrington from testifying at all in the second trial. The district court denied these sanctions, and the panel upheld the denial, noting that there was no evidence of bad faith or ill-intent in the record to support imposing such severe sanctions.No bad faith, even though the court also found Ms. Sauter "permitted [Mr. Derrington] to testify falsely" about not having an agreement with the prosecution! So basically, the prosecution's case won't be hindered, only delayed, by having committed reversible misconduct. Federal prosecutors still get a second bite at the apple. Taking away $91K in forfeiture money their agency had seized amounts to a wrist slap, as sanctions against federal prosecutors go. The Fifth Circuit basically said to the US Attorney, "Yeah, you cheated, but go ahead, it's okay."
It seems likely to this observer that, given the status quo, Ms. Sauter will suffer few if any meaningful consequences from this beyond a little embarrassment and the DOJ losing an amount of forfeiture money that would barely qualify as a rounding error in their budget. But what should happen when prosecutors flaunt the rules?
Let's open it up to the readers: What is the appropriate sanction when courts determine that prosecutors cheated to win? Should their bar license be threatened, their employment be called into question, or perhaps the withheld evidence should be excluded at retrial? Should punishment for a prosecutor's first offense differ from subsequent ones? And who should administer sanctions? Their bosses? (I.e., US Attorneys for the feds, District Attorneys at the local level.) The courts? (And if so, which one[s]?) The state bar? Somebody else?
Are there creative approaches to be had? For example, one could envision a rule or statute mandating a 30-day jail stint whenever a court finds that a prosecutor willfully withheld evidence. Or, should prosecutors retain absolute immunity in cases where they break the rules? There has to be some mechanism to meaningfully punish cheating prosecutors because the ones we supposedly have now don't work well.
RELATED: From Casetext, Coddling Prosecutors.