Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

In the first of two posts, Pittsburgh criminal defense attorney, Jerry McDevitt, comments on his successful defense of famed pathologist, Dr. Cyril Wecht.

Q: Jerry congratulations on the dismissal of all charges in the Wecht case in the Western District of Pennsylvania earlier this month. (Readers can find earlier posts here) I want to talk with you first about the pretrial battles in the case - was there any part of the motions practice that you think the others of us in the trenches can learn from?

Mr. McDevitt: In the unique circumstances of Dr. Wecht's case, motion practice was aimed at constructing the legal defenses and was also the first chance to tell the other side of the story in a cohesive fashion. The United States Attorney had convened a high profile press conference in which she both touted the sheer number of charges hurled by her office (84) and highlighted especially inflammatory charges that Dr. Wecht had "literally traded" unclaimed cadavers for free lab space at a local Catholic University at which to conduct his private autopsy practice. This had caused intense adverse publicity which threatened his presumption of innocence.

Thus, we used the vehicle of a suppression motion not only to point out the problems with the key warrants, but to demonstrate the questionable origins of the investigation in the first place. It all started because the local District Attorney didn't like the independent manner of death decisions made by Dr. Wecht in cases involving deaths of citizens at the hands of local police. Put simply, the local DA wanted Dr. Wecht out of office so that the control over the manner of death determinations would be by an appointed official rather than an independently elected medical examiner. We then linked that motive to the manner in which federal agents obtained and executed search warrants on Dr. Wecht's place of business to show they just went into his office and grabbed anything, then started looking for anything they could find. By emphasizing that they took things like his files on JFK, Vincent Foster, and other high profile cases, and even books, it made it obvious they were not looking for evidence of specific crimes. We also drew into question the honesty of the lead FBI agent, although at the time we filed the motion we did not know the full extent of his prior misconduct.

At the same time, I started to attack the legal theories involved to show that the law was being bent in a unique, one of a kind prosecution, and that the case involved truly trivial charges, such as using the office fax machine to do personal business. We did so in order to combat any thought that the sheer number of charges was significant by showing that they larded up the indictment with dozens of counts that literally involved pennies. Doing so made the prosecution take some ridiculous positions regarding the honest services charges, and committed them to disastrous trial positions.

Given the nature of the charges and the press conference held by the United States Attorney, we also constantly honed in on one big point to make the overall point that the investigation was a shabby one by pointing out that the body trading charges necessarily meant that the head of the local Catholic University, who happened to be a nun, would have had to be the other side of that transaction. We then stated time and again that they had not even bothered to interview her before making those charges, and that they knew by the time of motion practice those allegations were categorically false, but continued with them rather than suffer the embarrassment of admitting that a United States Attorney would make such wild allegations without confirming the accuracy before doing so.

Ironically, I truly believed at the time that the suppression motion would be granted given the many glaring problems with the facial validity of the warrants and the manner by which those warrants had been executed.

Q: You moved to disqualify the district court judge several times, Judge Schwab - what brought that about, and why were you eventually successful in that endeavor?

Mr. McDevitt: The thought of moving to recuse a federal judge never occurred to me in nearly thirty years of practice, and no trial lawyer worth his salt ever wants to do that. But in this case, it really did become a matter of honor driven by respect for what a federal court is to stand for and almost always does stand for. Thus, we moved twice to have the Judge recused. The first time was after it was obvious that the Judge was acting more as an adversary against us, and doing things that are unheard of in criminal cases. He had entertained ex parte advocacy from the Government on their Giglio obligations regarding the OPR's own adjudicated findings that the lead case agent had twice been involved in dishonest behavior, telling us we had no right to even know what the government had submitted to him under seal. The Judge also devised ways to save the search warrants on grounds not even argued by the government.

Judge Schwab refused oral argument on everything, and then wrote opinions where he would not even address case dispositive issues we presented. While the contents of the OPR reports remained under seal and we were gagged by a protective order from even discussing them in open Court, he wrote opinions for public consumption trivializing those reports and making it sound as they were inconsequential records. He held contempt over our heads for our criticism of the prosecution’s conduct, at one point saying he would hold contempt hearings after trial. Then, after saying he would have four days of hearings prior to trial to determine whether the Government's 200,000 pages of exhibits were admissible, an alien concept to me, he sent out an order sua sponte declaring all their exhibits admissible because we supposedly had not given him a list of objections to all those 200,000 pages of exhibits. We then moved the first time to have him recused. By a two to one vote of the Third Circuit, he narrowly escaped recusal, and the plurality opinion strongly criticized many of his actions, including some of his decisions on the search warrants and prohibitions he had placed on our use of the disciplinary records of the FBI agent. No doubt, the Circuit thought its instructions would be heeded. At the same time, the Third Circuit ordered public disclosure of the FBI disciplinary records and exercised its supervisory authority to expand the First Amendment rights of defense counsel to publicly advocate on behalf of the client.

After that decision came back down, things did not get better. Despite the Third Circuit order expanding free speech rights of defense counsel, the first time we spoke about problems with the case the United States Attorney filed a motion seeking to have me imprisoned and my license revoked.

Judge Schwab also convened suppression hearings sua sponte with an ill-defined order rather than waiting for any adversarial guidance. After the hearing, the Government could not even muster a response to key Fourth Amendment problems made manifest by the hearing record, but once again Judge Schwab denied us relief without even addressing suppression arguments that were uncontested by the Government.

At the same time, Judge Schwab came out with a sua sponte order that the jury would be anonymous and that we were not even allowed to take the jurors real names out of the courtroom. These and other factors lead us to ask the Circuit a second time to remove him. Although reversing his anonymous jury order, he was left in charge of the case.

After trial, and his declaration of a mistrial using procedures that the Third Circuit found to be highly flawed, the Third Circuit sua sponte removed him and directed that a "less invested adjudicator" take over and examine the case with a fresh set of eyes. That was done, and Judge McLaughlin held two oral arguments on suppression issues, and eventually quashed the two major warrants, effectively killing the case on the very grounds we had presented as our first substantive motion to Judge Schwab back in April of 2006. 

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Tuesday in a Boston courtroom U.S. District Court Judge Mark Wolf grilled career prosecutor Suzanne Sullivan over her failure to disclose that a Boston police officer’s testimony at a motion to suppress hearing was contradictory to what the officer told her in prior interviews. Specifically, officer Cooley testified at the motion to suppress hearing that he recognized the defendant, who fled when he saw the officer, which was contrary to his usual behavior. In earlier interviews officer Cooley told AUSA Sullivan that he did not immediately recognize the defendant and only recognized him when he was tackled by fellow officers. This is the rub of AUSA Sullivan’s Brady violation.

When other discrepancies in the officer’s testimony became manifest at the motion to suppress hearing, Judge Wolf ordered AUSA Sullivan to review her notes. In turn, she supplied her notes to the Court for review. That voluntary act has bitten AUSA Sullivan harder than fairness dictates.

Quite frankly, it seems to me that Judge Wolf went off on AUSA Sullivan, not because of her conduct, which in the scheme of things and which in the context of certain prosecutorial misconduct by government agents which this writer is personally aware of, and which this writer’s firm has diligently pursued pales in comparison, but rather because of Judge Wolf’s increasing frustration with the failures of the Boston U.S. Attorney’s Office. In fact, at the end of his order denying the motion to suppress, which addressed AUSA Sullivan’s misconduct, Judge Wolf included a 3 page appendix cataloging misconduct by the Boston U.S. Attorney’s Office.

Not only did Judge Wolf make AUSA Sullivan file an affidavit regarding her conduct, but also he held a hearing on her conduct where she appropriately accepted responsibility for her conduct.

Although I’m no apologist for government misconduct, I think Judge Wolf’s view of AUSA Sullivan has been regrettably colored by his past frustrations with the Boston U.S. Attorney’s Office.

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Imposing attorney’s fees and costs of $601,795.88, United States District Court Judge Alan Gold of Miami found in an order entered Thursday that the United States Attorney’s Office in Miami had engaged in a unlawful and frivolous attempt to keep witnesses from cooperating with the defense in a health care fraud prosecution. In a 50 page Order Judge Gold found as fact that AUSA Sean Cronin engaged in unethical conduct not befitting the role of a federal prosecutor. Once AUSA Cronin was advised that a key witness was “going south” he tuned up a witness tampering investigation that included a surreptitious recording of defense counsel and defense investigators.

The general background of the case can be found here. Judge Gold entered an order imposing attorney’s fees and costs that arose following a defense motion to suppress. AUSA Cronin threatened defense counsel with a “seismic shift” in the prosecution of the defendant Dr. Ali Shaygan, if the defense insisted in pressing a motion to suppress Dr. Shaygan’s statements. After the defense filed a motion to suppress, AUSA Cronin filed a superseding indictment alleging an additional 118 counts against Dr. Shaygan, despite not having interviewed a patient involved in a number of the additional counts.

In an exceptionally detailed order containing both findings of fact and comments on the solemn duties of federal prosecutors to do justice, Judge Gold found that AUSAs Cronin, his co-counsel, Andrea Hoffman, and his supervisor, Karen Gilbert, had failed to perform their duties and had engaged in a collateral witness tampering investigation motivated by Cronin’s personal animus against the defense team.

In addition to assessing attorney’s fees and costs Judge Gold entered a public reprimand against the three AUSAs and enjoined the United States Attorney’s Office from engaging in witness tampering investigations of defense counsel without first bringing such matters to his attention.

This Order has an excellent discussion of federal prosecutorial duties vis-a-vis Brady obligations, and other duties to ensure that the accused gets a fair trial and is recommended reading despite the length of the Order.

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In two unrelated, but troubling cases for the Department of Justice, District Court Judges have dismissed cases based upon governmental misconduct.

First, and mostly prominently, Judge Sullivan in the District of Columbia granted the government’s motion to set aside the verdict and dismiss the indictment in Senator Stevens' case. In granting that motion, Judge Sullivan noted that despite repeated defense requests and despite the Court’s repeated admonitions to provide exculpatory information, the government failed to provide impeaching evidence in the government’s possession from their interview of critical witness, Bill Allen. The Washington Post reported that Judge Sullivan called the government’s conduct in the case, “shocking and disturbing.”

Judge Sullivan issued two sua sponte orders over the weekend ordering that the government provide the Court all exculpatory evidence, witness interviews, 302s, and affidavits gathered, created and/or reviewed as part of the investigation into the whistle blower complaint, and the attorneys notes regarding the April 15, 2008 interview with Bill Allen. In a separate order Judge Sullivan ordered that the government preserve all notes of such interviews and memos.

At the two hour hearing yesterday morning, Judge Sullivan appointed an attorney in private practice, Henry Shuelke, III, saying he had no confidence in DOJ to investigate itself, to investigate the issues related to the misconduct, including contempt and obstruction of justice, of the government agents and counsel in the case and to make recommendations to him as to the appropriate discipline to impose on those guilty of misconduct. In February Judge Sullivan found three DOJ lawyers, Brenda Morris, William Welch, II, and Patricia Stemler in contempt. Mr. Shuelke, whose biography can be found here, will be given broad powers to conduct the criminal investigation of the misconduct at issue.

Importantly, Judge Sullivan, suggested that Attorney General Eric Holder conduct training of federal prosecutors of their duties and responsibilities to turn over evidence favorable to the accused.

In an unrelated case, the government moved to dismiss with prejudice last week a case against ten defendants in South Florida in a case pending before District Court Judge William Zloch. An Order of Dismssal was entered by Judge Zloch on Monday, April 6. The case and its nuances are set forth in detail here. We reported on the case here when a mistrial was declared following the discovery that jurors had used the internet to do their own research duing the course of trial.

On March 3, 2007 Judge Zloch declared a mistrial as to four defendants based upon prosecutorial misconduct in commenting on the defendants' Fifth Amendment right to remain silent. This case, which has taken some bizarre turns both before and after trial, ends in the discharge of all of the defendants, even two of whom plead guilty!
 

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As everyone knows by now, the Department of Justice has moved to dismiss with prejudice the indictment against former Senator Ted Stevens. While the pleadings in this case are extremely detailed in laying out the factual and legal landscape of the government’s misconduct, at the end of the day, it seems the defense had it right when they argued during trial, in one of their many motions to dismiss that “the government’s misconduct was intentional. This case must be dismissed. No other remedy will deter future prosecution teams from engaging in the same tactics. No other remedy will prevent what has happened in this case from happening again.” In that motion, the government set out in exquisite detail how the government agents and attorneys had knowingly withheld Brady material and knowingly put on false and misleading evidence.

After Senator Stevens was convicted one of the co-case agents, Agent Chad Joy, filed a self styled whistle blower complaint that detailed how the lead case agent, Agent Mary Beth Kepner, had intentionally redacted Brady and Jencks Material that the defense was entitled to receive, and how one of the prosecutors, Nick Marsh of the Department of Justice Public Integrity Section, schemed to relocate a prosecution witness, who had also been subpoenaed by the defense.

Of course, when that complaint was made public, defense counsel, again moved to dismiss the indictment arguing that the “complaint submitted by FBI Agent Chad Joy now confirms what the defense has long believed and alleged: the government cheated and lied in order to obtain a verdict against Senator Ted Stevens.”

Litigation then ensued where the district court was trying to sort out who knew what and when. For almost 3 months, Brenda Morris, the lead prosecutor continued to file pleadings defending the government’s actions, that the court ultimately rejected. Judge Sullivan noted that “over and over again the government has been caught in false representations and otherwise failing to perform its duties . . . and over and over again, when caught, the government has claimed that it has simply made good faith mistakes.”

In mid-February the Department of Justice brought in a new team of prosecutors after members of the original team were held in contempt. The district court withheld ruling as to what sanction is to be imposed with respect to that finding of contempt. No doubt collateral litigation will continue regarding the appropriate penalty for the prosecutors’ contumacious conduct.

Ultimately that new team of prosecutors concluded that evidence material to the defense of Senator Stevens was withheld and that government pleadings regarding that material evidence were inaccurate. The government concluded, in moving to dismiss the indictment that “based on the totality of circumstances and in the interests of justice, it will not seek a new trial.”

A press release by Williams & Connolly, Senator Stevens’ counsel, noted that had the district court simply “accepted the word of government prosecutors as is done often in our courts, the extraordinary misconduct would never have been uncovered.”

The DOJ Office of Professional Responsibility is conducting an investigation into the conduct of the government agents and prosecutors.

District Court Judge Sullivan has scheduled a hearing for next Tuesday, April 7, 2009 on the government’s motion to dismiss.

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