Deliberate Prosecutorial Misconduct in Northern California

Greg Reyes, former CEO of Silicon Valley's Brocade, was targeted and convicted by members of the Rove Republican Racket in 2007 for stock-option backdating.

Reyes (pictured) appealed the ten count verdict due to prosecutorial misconduct. This summer the appeals court threw out the convictions due to deliberate prosecutorial misconduct.

Then the federal government tried to get the court to strike the word "deliberate."

What happened next? From last week's Legal Pad of Cal Law:

Federal prosecutors just got their second punch in the gut over the Greg Reyes backdating case: the Ninth Circuit has explicitly refused to back away from a finding that the government committed deliberate misconduct during trial.

Reyes’ securities fraud convictions had been the Northern District [of California]’s highest-profile success in the war against stock-option backdating, because Reyes had been CEO of [Silicon] Valley darling Brocade. But over the summer an appellate panel threw out those verdicts, finding that AUSAs Tim Crudo and Adam Reeves misled the jury by stating that Brocade finance department didn’t know anything about backdating at the company. In fact, it did.

In the aftermath of that opinion, the government didn’t ask that the court reinstate the convictions. Rather, it just asked that it eliminate any judgment that Reeves and Crudo acted deliberately. This is a big deal in Justice Department-land: a deliberate misconduct finding triggers an investigation from DOJ’s Office of Professional Responsibility, which falls somewhere between root canal and colonoscopy on a federal prosecutor’s list of preferred procedures.

[On Friday] the court issued an amended order, but it only made a factual change; it didn’t strike the word deliberate. A U.S. attorney spokesman didn’t immediately respond to an email, nor did Crudo, who has since returned to a Latham & Watkins partnership.

Going to Jail in Alabama?

Former Democratic State Representative of Alabama Sue Schmitz (pictured) was targeted by the Rove Republican Racket in 2008. In our previous posting about Schmitz, we told you how former U.S. Attorney Alice H. Martin tried her twice for a bogus crime.

Schmitz worked for a not-for-profit and since her position was funded by federal dollars, Martin, the Queen of the Rove Republican Racket, took the opportunity to scrutinize Schmitz's work and throw her behind bars.

Her crime? Not sitting behind a desk, using a computer, or working a full 40 hours a week. Smells like that dishonest "honest services" crime!

No one would really give a damn if Schmitz were non-political and if the position had been funded by private donations.

Last month, a federal judge ordered Schmitz to prison on December 4. She was sentenced to two years in the big house. Now Schmitz is appealing that decision as she also appeals the entire case.

We believe this is one of the worst examples of political persecutions by the Rove-Bush machine and hope she prevails.

Only God can Save the Innocent

Although we have seen examples of prosecutorial misconduct by the Rove Republican Racket based on political vengence and opportunism, one experienced law enforcement officer writes that much of the cases surrounding prosecutorial misconduct arise out of shoddy investigations and unreliable eyewitnesses.

Sunil Dutta (pictured) is a lieutenant in the Los Angeles Police Department. He also holds a PhD and entered the police force after working as a scientist and researcher.

In an opinion piece for the Christian Science Monitor, Dutta writes:

Major harm could result from our reliance on two very fallible tools: eyewitnesses and shoddy forensic science.  Consider a recent example: On Feb. 17, 2004, Texas executed Cameron Todd Willingham for the arson deaths of his three daughters. In September, an investigative article in The New Yorker revealed that Mr. Willingham was innocent. It sparked a series of investigations that found he was the victim of shoddy crime scene investigation and outdated theories.

In 2006, when the Rove-Bush-Cheney administration fired nine U.S. Attorneys, the political masters struck the drums: go after Democratic fundraisers, Democratic boosters, Democratic political operatives, and Democratic governors.

Although Dutta writes of police departments, his observations can be applied to U.S. Attorney offices during the Rove years:

Aside from the fallibility of eyewitnesses, our political model of control over the police can lead to inadvertent mistakes. Municipal police departments dance to the tune of their political masters who thrive on the constant drumbeat of "tough on crime" rhetoric. The only evidence that police can measure to tout our tough-on-crime rhetoric is increasing the number of arrests and reducing crime rates.

This pressure to be productive, the lack of personnel and time, and the desire to wrap up an incident, combined with the unreliability of eyewitnesses, increases the odds that an innocent person may be arrested, or worse, convicted. Add to this our system that rates prosecutorial performance on conviction rates and we are on a slippery slope. And when corrupt prosecutors who present false evidence, even in death penalty cases, such as the now disbarred Arizona prosecutor Kenneth Peasley, enter the mix, only God can save the innocent.

It is obvious that the political pressure to be "tough on corruption" by the Rove-Bush Administration led many U.S. Attorney offices to target innocent Democrats and to expand the use of the dishonest "honest services" statute.

Read the full column here.

Iowa Immunity

A horrific example of prosecutorial misconduct in Iowa has now become a major legal debate before the U.S. Supreme Court.

From California to Wisconsin to Puerto Rico, the Rove Republican Racket's legion of U.S. Attorneys engaged regularly in prosecutorial misconduct to put political opponents in jail or falsely charge them with bogus crimes.

Yesterday, the nation's highest court heard the arguments on whether or not prosecutors who engaged in prosecutorial misconduct should be immune to lawsuits by their victims.

The Associated Press writes:

[U.S. Supreme Court justices] seemed frustrated at the thought that prosecutors could knowingly send an innocent person to prison — and then escape any repercussion by claiming that they were doing their job. The case in front of the high court involves two former Pottawattamie County, Iowa, prosecutors, Attorney Dave Richter and his assistant Joseph Hrvol. They are being sued by Curtis W. McGhee Jr., and Terry Harrington, who were convicted of first-degree murder and sentenced to life in prison in 1978 for the death of retired police officer John Schweer. The men were released from prison after 25 years.

Evidence showed the prosecutors had failed to share evidence that pointed to another man, Charles Gates, as a possible suspect in Schweer's slaying. They later on denied that Gates was even a suspect, even though witnesses placed him near the scene of the crime and his name appeared in several police reports. He also was administered and failed a polygraph test and the prosecutors themselves even consulted an astrologer about their suspicions of Gates.

McGhee and Harrington filed lawsuits against the former prosecutors, saying as prosecutors Richter and Hrvol had them arrested without probable cause, coerced and coached witnesses, fabricated evidence against them and concealed evidence that could have cleared them. Richter and Hrvol argued, however, that they were immune from lawsuits because they were acting within the scope of their job. Federal courts, however, said the immunity did not extend to their work before the trial began and rejected their motions to dismiss the lawsuits.

Secret Contract for Ken Starr's Protege

On Monday, we wrote how a former Assistant U.S. Attorney Tom Dawson from Mississippi discussed writing a book with a right-wing, Republican blogger in the summer of 2008 while still serving as a federal prosecutor, according to the website Main Justice. 

The book, not surprisingly, is about the prosecution and jailing of prominent Democratic boosters and trial lawyers. Dawson also obtained a secret six-month contract from embattled U.S. Attorney Jim Greenlee a few days after retiring in January of this year.

So who is Tom Dawson?

We found this flattering introduction from a CNN transcript dated February 5, 1998:

"Let me introduce Tom Dawson, who will be representing the United States as first chair in the trial. Mr. Dawson is a career prosecutor. He's an assistant United States attorney from Oxford, Mississippi, for the District of Mississippi, has tried many cases -- a variety of trials over many years. He has also served in the Justice Department in the criminal division, is one of the Department of Justice's most experienced senior career prosecutors. "

And who was introducing him? None other than the illustrious Kenneth Starr, then the Independent Counsel of the Whitewater and Lewinsky scandals. 

In 1998, Dawson was one of the lead trial attorneys in the Whitewater controversy.  Dawson was part of the legal team that targeted and failed to prosecute the President of the United States Bill Clinton and First Lady Hillary Clinton in relationship to an obscure land deal.

Cracker Jacks in South Carolina

In South Carolina, three men indicted and accused of ripping off 7,000 investors of $82 million had their day in court.

According to The State:

We wonder if U.S. Attorney William Walter Wilkins II (pictured) of the Rove Republican Racket will have an appropriate response to the obviously absurd.

On Monday, the three men, on their own, filed an answer to the indictment that said the government's case is fraudulent because they are not citizens of the country. Instead, they are ancestors of people who lived in what's now the United State before the European colonists arrived.The men also said since they have not damaged the plaintiff in the case, the United States of America, federal prosecutors have "failed in their duties" to protect the constitution. They also accuse the U.S. attorney's office in South Carolina of 83 "unlawful actions," including racketeering, armed assault, theft of public funds, treason and failing to prevent apartheid and genocide. The actions are punishable with fines from $250,000 to $2 million each, they wrote. "We Declare the vicious lies, fraudulent accusations, and unlawful assertions made by the invading parties on Ancestral lands to be without any merit," they wrote.

Two Contracts in Mississippi

Disgraced U.S. Attorney Jim Greenlee of the Northern District of Mississippi, who ethnically targeted "Islamic-name sounding" convenience store owners and fumbled the ball 27 times in a high profile criminal prostitution case, has won the ultimate prize: political stupidity.

According to Main Justice, in January, Greenlee signed off on rewarding former Assistant U.S. Attorney Tom Dawson with a six-month, secret contract only days after he retired.

Some months beforehand, as early as the summer of 2008, while attending an Ole Miss football game, Dawson also met with Republican blogger Alan Lange of Y'All Politics, according to a local Oxford, Mississippi newspaper. (These are the two authors we told you about last week who are cashing in and seeing green.)

According to Main Justice, at some point in the summer of 2008, Dawson, who was still an Assistant U.S. Attorney, discussed the book project with Lange. Then, at some undisclosed point in time, the two agreed to write a book and later signed a book contract.

What are they going to write about? The prosecution of Democratic Mississippi fund-raiser Paul Minor and those Mississippi Democratic trial lawyers and others involved in the Scruggs bribery cases.

And who was the lead prosecutor in those cases? Tom Dawson. Who appeared to be planning, outlining, and thinking about writing a book while still serving as an AUSA and/or USA consultant? Tom Dawson.

Main Justice writes:

The circumstances of Dawson’s employment with the Northern District of Mississippi office were unusual, raising questions about whether he may have skirted Justice Department ethics rules when he began discussing the book project with Lange last summer. Dawson officially retired on Jan. 2, after nearly 36 years as a prosecutor. But he returned to the office on Jan. 15 under contract, working part time behind the scenes on ongoing Scruggs-related investigations until early June.

“It wouldn’t be any conflict necessarily because it was only about two days a week,” [Dawson] said. “But just to remove any criticism of that, I decided to cease the contract.” According to the Justice Department, Dawson was a part-time consultant from Jan. 15 to June 7. His contract originally was to run through the end of June. Justice Department ethics rules advise employees wishing to undertake writing projects to be “cautious to avoid any conflict of interest with their position and to ensure that no interference with the performance of their official duties occurs.”

Looks like Dawson's conscience finally got to him!

Greenlee and his friends in the Rove Republican Racket have been attacked and criticized (including by this blog) for turning the U.S. Department of Justice into the political arm of the Republican Party and now there is proof in the pudding.

We hope Greenlee's irregular and secret contract to a moonlighting writer/active prosecutor--who was joined at the hip to a right-wing blogger a year ago--ignites renewed Congressional scrutiny and catches the ear of U.S. Attorney General Eric Holder.