Matz: Pretty Soon You're Talking Misconduct
In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness.While I've only managed to scratch the surface as yet due to time constraints, Judge Matz's decision is fascinating, including a broad swathe of "inside baseball"-type stuff that rarely sees the light of day. This is the sort of stuff we all know, but nobody official will ever admit. Judge Matz does. For example,
So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court."
Second, when a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees. That is what occurred here. This Court was confronted with so many motions challenging the Government’s conduct that it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct. Although the Court did issue orders granting various of Defendants’ motions to suppress, motions to exclude evidence, motions to compel further discovery, motions for curative instructions, etc., it did not fully comprehend how the various pieces fit together. And fit together they do. The Government has acknowledged making many “mistakes,” as it characterizes them. “Many” indeed. So many in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry. To paraphrase what former Senator Everett Dirksen supposedly said, “a few mistakes here and a few mistakes there and pretty soon you’re talking misconduct.”
Oh baby. And this:
When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.1 In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government.
1 For an example of a court’s reluctance to make those findings, see United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). There, the apparently ambivalent district judge stated that “the government did not act intentionally” but also said that the government “did not . . . act [ ] . . . unintentionally.” The appellate court characterized this ruling as “somewhat confusing.” Id. at 1080 n.2.
When is the last time a federal judge conceded that prosecutors have to murder babies before any judge will hold them accountable for misconduct?
While I expect to return to this decision, and the underlying conduct, as soon as I can read through the papers, I would be remiss not to share this. Get out the popcorn, kick back and enjoy.
H/T C.D. Cal, FPD Blog and Solomon Wisenberg at White Collar Crime Prof Blog