Disbar AUSA Kevin Bolan

It’s not exactly unusual for criminal defendants to ask their lawyers to dissemble to the court. There are facts that the government may not possess, or at least not be capable of proving, in the absence of the defense lawyer conceding them in court, and the defendant, understandably, strongly prefers that his lawyer, the person he’s paying to stand between him and a criminal conviction, not provide the government with the evidence it lacks. Maybe it involves withholding information. Maybe it involves denying information. Either way, by omission or commission, our clients might want us to lie to the court for their benefit.

Yet, we don’t. We shouldn’t. We can’t. While our duty is to provide our client with a zealous defense, to pursue every non-frivolous argument possible if, in our professional judgment, it furthers their cause, we also have a duty of candor to the court. We can spin it. We can rationalize it. What we cannot do is lie about it, no matter how much our client would wants us to do so. We just can’t.

Chief of the Rhode Island United States Attorneys office, AUSA Kevin Boland, did the unthinkable.

The lawyer, Kevin M. Bolan, leads the civil division of the U.S. Attorney’s Office for the District of Rhode Island. In court filings and during a hearing on Monday, Mr. Bolan acknowledged that he had failed to disclose important information to the judge about an immigrant who had been arrested and had petitioned for release. Mr. Bolan has apologized, but Judge Melissa R. DuBose said that the court still needed to get to the bottom of the omission.

“It’s the candor and the lack of candor to this court that has to be addressed,” she said. “And it has to be fully investigated, so we don’t have anything like this happen again.”

Judge DuBose was asked to release a Dominican migrant who was charged with assault. She did so, releasing him into the custody of the Department of Homeland Security. On its face, it was an eminently reasonable thing to do. And then, DHS dropped a bomb, blaming her for being one of those radical left judges who released a murderer. Wait, a murderer?

The dispute arose after the Department of Homeland Security last month publicly attacked Judge DuBose for ordering the migrant released from custody, despite what officials said was a murder charge that he still faces in the Dominican Republic. But the judge did not know about the international charge, and Mr. Bolan has said that before her ruling, D.H.S. had instructed him not to inform her about it.

Bolan knew that there was a murder charge from the Dominican Republic. Bolan knew that it was highly relevant to the decision about to be made. Bolan chose not to inform the judge about it.

The migrant, Bryan Rafael Gomez, was arrested by police in Worcester, Mass., on April 4 and charged with assault and battery. He was released on bail and turned over to Immigration and Customs Enforcement. In a court filing, Mr. Bolan said he learned of the foreign murder charge but, after consulting with D.H.S., believed that “a legitimate law enforcement reason” meant he could not share information about it with Judge DuBose.

Initially, it’s incomprehensible that there could be any “legitimate law enforcement reason” to withhold this fact from the court. The defendant was in custody, whether by the marshals, Bureau of Prisons or ICE. Acknowledging the Dominican charge would have compromised nothing. The conclusory assertion that there was a legitimate reason to conceal the murder charge was absurd on its face. Just claiming it doesn’t make it so.

The DHS story was that it couldn’t reveal the charge pursuant to its policy and practices without “authorization” from the Dominican government. This is a steaming pile of . . . something that emits a really unpleasant odor. That’s not at all how it works, and even if it was, the government could have informed the court in camera. It didn’t.

But regardless, that’s not a call an AUSA gets to make. Sure, DHS might have told him to keep the information from the court, just like criminal defendants implore their counsel to conceal a damning fact, but so what? Bolan’s duty of candor to the court doesn’t disappear when DHS says “lie, baby, lie.” Why DHS would have told him to do so is unclear, though the cynical view would explain it as setting the judge up for a fall for not being a loyal member of the Trump team.

After Judge DuBose ordered Mr. Gomez’s release on April 28, D.H.S. went on the attack, deploying what has become a well-established playbook used by the Trump administration to single out judges who rule against its policies. Officials strongly suggested Judge DuBose had knowingly released someone accused of murder.

“An activist judge appointed by Joe Biden released this wanted murderer back into American communities,” Lauren Bis, an acting assistant secretary of homeland security, previously said in a statement. On social media, the department called Judge DuBose’s ruling “insanity” and amplified a Fox News report warning that “this accused killer is back out in the streets.”

Maybe Bolan had a change of heart after seeing the judge burned by the deceit of DHS. Maybe Bolan found himself with no way out, the lie having surfaced through the disingenuous DHS attack, and Bolan found himself facing the victim of his subterfuge on the bench. But he expressed regret for his conduct, like so many defendants feel regret for having gotten caught.

Judge DuBose referred Bolan to the lawyer disciplinary board.

The judge said the referral would be made under the court’s local rules that govern disciplinary proceedings against attorneys. Cases can be heard by a single judge or all active judges, with punishments ranging from private reprimands or fines to disbarment. At an earlier hearing on Monday, Judge DuBose also discussed the possibility of sanctioning Mr. Bolan’s client, the Department of Homeland Security.

Rarely do government lawyers face discipline for violating the rules of professional responsibility. Then again, rarely do lawyers succumb to the unlawful instructions of their “client.” This administration might not see any problem with lying to the court, any more than it sees a problem with lying to the public for good reason, bad reason or no reason. But there is a line that even a government lawyer can never cross, and Bolan crossed it. Had a criminal defense lawyer done so, he or she would almost certainly be disbarred. Kevin Bolan crossed it. Disbar AUSA Kevin Bolan.


Discover more from Simple Justice

Subscribe to get the latest posts sent to your email.

Leave a Reply