The Pissed Off Prosecutor has not posted in a while. While approaching retirement after 30 years of public service, I contemplated “telling in like it is”, via a blog, which I did. A combination of sloth and pondering the scope of “telling it like it is” created something of a writer’s block for a time.
As it happened, I was contacted by several local Las Vegas media post-retirement, primarily to reminisce about cases I had prosecuted. Not a problem. But, although there are many, they come up somewhat infrequently after 20 years.
However, not long ago I was contacted several times regarding series of cases that have not gone well for the local U.S Attorney’s Office, my alma mater. I finally accepted one TV invitation. (See link below.)
But I only agreed to comment upon one case. I did not feel comfortable “piling on” my old office about all three of the disasters the story was to focus on.
So I was asked on air, about the case of a New Orleans attorney who claimed to have been offered immunity, in 2007, in exchange for his cooperation against the primary defendants in a major fraud case, who were ultimately convicted.
4 years later, in 2011, his long-standing status as an immunized witness – he says – was abruptly revoked – verbally (odd) pursuant to a telephone call (even more odd) of which there was no record, and had not been documented by anyone from the Government (very, very odd).
Prosecuting lawyers and granting immunity are serious matters which ordinarily require several layers of supervisory, if not DOJ, approval. In this situation – withdrawing immunity previously granted to an attorney – well, now you’re playing with fire, as those in the loop discovered.
So, no longer immunized, in April, 2013 Mark was indicted and subsequently convicted of conspiracy and fraud charges. He was then sentenced to three years in federal prison.
The New Orleans attorney’s appellate claims screamed “prosecutorial misconduct”. The Ninth Circuit Court of Appeals summarily reversed the conviction and dismissed the charges against Mark. Mark is now seeking $215,000 in attorney’s fees from the Government.
His hopes are no doubt bolstered by another Nevada federal judge having ordered the U.S. attorney’s office to pay a man $147,000 in expenses after ruling the seizure of $167,000 from his vehicle was illegal (one of the three cases addressed in the TV newscast). The U.S. Attorney’s Office has appealed.
Regarding the appeal, the Las Vegas Review Journal stated in an editorial in August, “Is there a public official in Nevada who’s less accountable than U.S. Attorney Daniel Bogden? If he stands by this baseless, pointless appeal, the Justice Department should fire him.” Parenthetically, it wouldn’t be the first time Bogden has been fired from the politically appointed position.
Back to the Mark case, I probably fielded questions for 20 – 30 minutes (some on the record, some off).
About 20 seconds made it on air. This is how TV works. During the interview, I tried to be fair, and even leave a little wiggle room for the prosecutors and agent(s) involved in the case. I don’t like kicking anyone who’s down, but it is also painful to watch an office that you once helped build engaging in self-destruction. And after all, my plan or this blog was to “tell it like it is”.
What did not make it on air was my view that, given the sensitivity of the issue as described above, there appears to have been a breakdown in supervision in this case. There was either no supervision at all, or whatever support was rendered failed the line AUSA’s handling the case.
In the aftermath, one of the AUSAs on the case left the office – for the Federal Public Defenders Office. And the AUSA sent to the Ninth Circuit to get ripped a new one was not one of the trial lawyers. Bad idea. There is a long standing philosophy, if not policy, that if you are accused of misconduct, show up for the appellate argument, make your case, and be prepared to take your lumps. Sending a sacrificial lamb does not ordinarily sit well with your panel. As the Channel 8 newscast below demonstrates, the panel was not kind to the AUSA dispatched to San Francisco in a futile attempt to defend his office.
Disturbingly, as the TV broadcast stated, there have been a series of debacles involving Nevada’s U.S. Attorney’s offices in both Vegas and Reno – however, the truth be told, not just recently. I plan to address some of those matters in future posts.