When Illinois Congressman Henry Hyde stuck an amendment into an appropriations bill in 1997, the Department of Justice went bonkers. The Hyde Amendment (18 U.S.C. 3006[A]) was intended to create a penalty for prosecutorial abuse, an odd choice of concerns for a Republican at the time, but Henry Hyde was an unusual type of Republican, and didn’t let the law and order spirit blind him to the overbearing power of government, or its abuse.
The problem was that the Hyde Amendment, which provided for a defendant to obtain attorneys fees from the government, was limited to instances where the government’s conduct was “vexatious, frivolous, or in bad faith.” That’s an extraordinarily high legal bar to meet, requiring not only the most egregiously bad faith acts one can imagine from the government, but a judge willing to agree. It’s incredibly easy to beat the Hyde Amendment by the mere incantation of words that showed the slightest degree of either factual basis or good faith. Most judges are notoriously reluctant to conclude that any government attorney was so totally evil as to invoke the Hyde Amendment.
Florida federal Judge Alan Gold, however, proved himself one of the rarest of the rare by his decision yesterday in U.S. v. Shaygan. It took 50 pages of mostly tedious legal writing to spell out the details that led to his conclusion, that the actions of a handful of AUSAs in Miami, in taping communications with the defense attorneys, in concealing the reports of their conduct, in deceiving the court and in trying to whitewash their conduct, met that exceptionally high bar. Judge Gold awarded the defendant the sum of $601,795.88, more than half the cost of his defense in the case.
Despite the fact that Dr. Ali Shaygan was acquitted on every one of the 141 count indictment after a mere three hours of deliberation, itself a shocking outcome, that wasn’t nearly enough to invoke the Hyde Amendment. It required some hard conclusions by Judge Gold, and he gave them. That his decision is a somewhat painful read is unfortunate, but necessary to withstand the appeal that the government will most assuredly seek. When a judge comes down hard, he needs to make his order bullet-proof, even if that takes some of the zing out of his words. (Brian Tannebaum says that this is a decision every lawyer should print out, carry around with him and read. I doubt that many are so masochistic, so I suggest the Sun Sentinel’s more palatable recap.)
Still, he had a few goods lines in there, which are all the more poignant in light of the well-publicized words of Alaskan Judge Emmet Sullivan in the Ted Stevens and Dr. Ayman Saeed Abdullah Batarfi cases.
The various deficiencies in [AUSA] Cronin’s conduct constitute unethical behavior not befitting the role of a prosecutor. As an initial matter, Cronin’s displeasure and ill-will toward defense counsel as a result of Defendant’s Motion to Suppress, as evidenced by his “seismic shift” comment, led to the filing of a Superseding Indictment that significantly defense. Such a “threat,” regardless of how Cronin now argues it should be interpreted, is inappropriate in the face of a legitimate motion by the defense, one on which the defense ultimately prevailed. Further, the collateral investigation was unfounded, motivated in part by Cronin’s personal animus against the defense team and fueled by his deliberate failure to exercise independent and objective judgment regarding the basis for such an investigation. Indeed, although Wells only expressed concerns that Tucker may be “going south” and that she needed to be “settled down,” Cronin unilaterally proceeded to explore the possibility of a “witness tampering” investigation. The pursuit of the collateral investigation further evidenced Cronin’s central role in attempting to improperly secure incriminating evidence against the defense team to his advantage.
Finally, Cronin, along with Hoffman, did not intend to bring the existence of the collateral investigation to my attention. As detailed above, Gilbert brought this matter to my attention on February 23, 2009, who had found out by sheer coincidence when socializing with Cronin and Hoffman on the evening of February 19, 2009 that Clendening had mentioned his recording during cross-examination. While the existence of Clendening’s second recording was unknown to all involved, Cronin and Hoffman’s failure even at this point in time to realize the need for disclosure of the collateral investigation and the cooperative involvement in the investigation by two central witnesses for the prosecution – Vento and Clendening – is an egregious abdication of their ethical obligations. While Gilbert proclaims that the government in good faith brought these matters to my attention expeditiously after immediate consultations with Messrs. Senior and Sloman, her sentiment does not disguise the fact that Cronin and Hoffman did not believe there was a need for disclosure or otherwise go to anyone to ask for direction on how to proceed. Had Gilbert not met Cronin and Hoffman socially on the evening of February 19, 2009, none of the disclosures before me would have transpired, and the jury may well have reached a different result. In sum, Cronin, as aided by Hoffman, exhibited a pattern of “win-at-all-cost” behavior in the conduct of this investigation that was contrary to their ethical obligations as prosecutors and a breach of their “heavy obligation to the accused.”
What’s striking about Judge Gold’s recitation is how the personal hatred between the assistant in charge of the prosecution, stemming from the defense lawyer doing his job, motivated him to fabricate a “witness tampering” allegation, which then justified his recording calls with David Markus, Shaygan’s lead lawyer, then conceal and deceive to cover his tracks. It all started with the arrogance of anger because the defense lawyer challenged AUSA Sean Cronin, and one little pissant assistant decided that he had the power to make Markus pay for his insolence.
All the polysyllabic words that appear with annoying regularity in court decisions, and all the platitudes that judges and stiff-suit lawyers love to fall back on to uphold the majesty of the law, mask a very sorry reality in the trenches: The integrity of the system inevitably comes down to someone, somewhere, making the decision to do the right thing or not. Sometimes they can’t tell what the right thing is, though they want to do it. Sometimes, as here, it comes down to one Assistant United States Attorney deciding that he is going to teach defense counsel a lesson because he’s pissed. The entire majesty of the law, the United States and it’s unbearable power is no better than one angry man.
Before anyone gets too worked up about how great this all worked out, bear in mind that Shaygan had to go to trial before he was found not guilty of 141 counts. That wasn’t nearly as much fun as it sounds. He may have been awarded over $600k by Judge Gold, but that’s only a portion of the more than a million dollars the defense cost him and he hasn’t received a dime of it yet and, should he get it at all, it will be a long time before he sees it. His life is likely in shambles, his name is ruined and his medical practice destroyed. And he was acquitted the first time around. This is the best it can get in our legal system.
Judge Gold found this scandalous conduct “profoundly disturbing,” as well he should. Maybe this is the start of a trend of federal judges beginning to have a glimmer of the damage that can happen when they wink at the government daily. But the damage is far more profoundly disturbing than this decision acknowledges. Even the dreaded Hyde Amendment can’t undo the harm cause Dr. Shaygan by the animus of one assistant, schooled in the “win at all costs” culture of federal criminal practice. And it does nothing for the many thousand of others who were less successful fighting against the overbearing power of the United States government.
Still, it’s a start.