Sunday, March 27, 2016

Fifth Circuit finds prosecutor misconduct, issues slap on wrist

The Fifth Circuit Court of Appeals recently vacated an asset forfeiture ruling (see the order) after finding that the prosecutor in the federal case, Mindy Sauter, had concealed the fact that an alleged accomplice was promised a favorable deal in exchange for testimony, reported William R. Stewart at The National Law Review.
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.


Mark Johnson said...

I am for extremely hard penalties. Case is automatically dismissed with a verdict of "not guilty." Lawyer loses license to practice and both DA's office and lawyer personally are open to civil suit.

The DA's office and its officers already have too much power and discretion.

Morose Recluse said...

While I'd love to see the hard penalties mentioned above, I'd settle for the person in question losing a week's pay. Or wear an "I cheated" sign around their neck during their next three trials.

Anonymous said...

Think about the hundreds or even thousands of times she lied and destroyed the lives of not only those arrested but their entire families as well.

If we are to end this type of corruption three things must occur.

1) Execute.
2) Imprison their family members for life at hard labor.
3) Confiscate their assets.

Disagree all you want, but the fact is it will not ever end until these things are done.

Anonymous said...

I'm of the opinion that the Klan Acts should apply. These are deprivation of rights under the color of law violations. Conspiracy to violate civil rights. In a just world the DOJ would be tearing them a new asshole. In this brave new world the DOJ the DOJ may be the biggest violator.
"Prosecution 101" i believe is what they call it.

Margaret Moon said...

I believe dishonest prosecutors should be fired and disbarred. Period! They should be held to the "higher standard" we hear so much about.

Joe mama said...

Translate the defendants sentence that resulted from the misconduct to the prosecutor, then disbarment after sentence is served.

xenonman said...

Certainly permanent disbarment, reciprocally applicable to all 50 States and US territories. Felony sentences for perjury, if applicable.

No special or "kid glove" treatment for dishonest/incompetent women prosecutors.

Miketrials said...

During I think it was the OJ trial, someone floated the suggestion that the penalty for prosecutorial or police misconduct should be tied to the penalty faced by the defendant, and that they should be subject to the same penalty. Lie in a DP case, face the DP. Well, one can dream.

At the very least, however, there should be, inter alia, suspension, monetary penalties, disbarment, and, most significantly, sanctions by the court. If an atty did this in my court, upon a finding of a knowing condonation of perjury by the prosecutor, I'd adjudge him/her in criminal contempt, and refer the case for prosecution for conspiracy to commit perjury. If they don't prosecute and get a conviction, I'd proceed on the criminal contempt. The DOJ then can flip the lying witness onto the prosecutor. Irony abounds.

Anonymous said...

I know this isn't the answer everyone is looking for here but if I may issue a recommendation from civilization, at a bare minimum this prosecutors last 10 cases should be automatically reviewed. That is the only dignified way to honor the victim by recognizing the obligation to "get it right."

Every other recommendation here should take a back seat to this one.

Lee said...

Disbarment, Confiscation of their personal assets to recover legal fees of the defendant.

I daydream of how nice it would be if we had a provision within the 8th amendment that permitted prosecutors to be tortured very slowly and painfully for their misconduct.

9:30, we do not lay a hand on the innocent as means to punish the guilty. If you dad robs a bank it should not be on you to go to prison. The purpose (which is so often lost to us) that we have courts and laws is not to punish the guilty (as they will face the same justice that we all will at the end of days) but rather to protect the innocent.