Concurring in a Second Circuit opinion declining to overturn an insider trading conviction in the case of U.S. v. Walters, Judge Dennis Jacobs points out “egregious” FBI leaks and “notices the irony that Walters and the FBI agent both apparently misused confidential information, but that only one of them is going to jail.” [Ira Stoll, Future of Capitalism]
Orange County, California voters have declined to re-elect District Attorney Tony Rackauckas, whose doings have provided repeated grist for this space. His successor and former protege sounds like a possible source of grist too: “A Wahoo’s employee told the deputy Spitzer decided to handcuff the preacher because he kept looking at Spitzer.” [Nick Gerda, Voice of OC; R. Scott Moxley, OC Weekly]
Prosecutors can plant wrong, inflammatory, and damaging stories about defendants with no real consequence, part 24,873 [Sharon LaFraniere, New York Times]:
Federal prosecutors have admitted that they wrongly accused Maria Butina, a Russian citizen now in custody on charges of illegally acting as a foreign agent, of offering to trade sex for a job as part of a covert effort by Russian government officials to infiltrate Republican circles in the United States.
In a court filing late Friday, prosecutors in the United States attorney’s office in Washington acknowledged that they had been “mistaken” in interpreting what were apparently joking text messages between Ms. Butina and a friend who had helped her renew her car insurance.
Readers who watched the Cato forum last November on prosecutorial fallibility and accountability, or my coverage at Overlawyered, may recall the story of how a Federal Trade Commission enforcement action devastated a thriving company, LabMD, following a push from a spurned vendor. Company founder and president Mike Daugherty, who took part on the Cato panel, wrote a book about the episode entitled The Devil Inside the Beltway: The Shocking Exposé of the U.S. Government’s Surveillance and Overreach into Cybersecurity, Medicine and Small Business.
Last month two separate federal appeals courts issued rulings offering, when combined, some consolation for Daugherty and his now-shuttered company. True, a panel of the D.C. Circuit Court of Appeals, finding qualified immunity, disallowed the company’s claims that FTC staffers had violated its constitutional rights by acting in conscious retaliation for its criticism of the agency. On the other hand, an Eleventh Circuit panel sided with the company and (quoting TechFreedom) “decisively rejected the FTC’s use of broad, vague consent decrees, ruling that the Commission may only bar specific practices, and cannot require a company ‘to overhaul and replace its data-security program to meet an indeterminable standard of reasonableness.’” [More on the ruling here and here]
As usual, John Kenneth Ross’s coverage at the Institute for Justice’s Short Circuit newsletter is worth reading, both descriptions appearing in the same roundup since they were decided in such quick succession:
Allegation: Days after LabMD, a cancer-screening lab, publicly criticized the FTC’s yearslong investigation into a 2008 data breach at the lab, FTC staff recommend prosecuting the lab. Two staffers falsely represent to their superiors that sensitive patient data spread across the internet. (It hadn’t.) The FTC prosecutes; the lab lays off all workers and ceases operations. District court: Could be the staffers were unconstitutionally retaliating for the criticism. D.C. Circuit: Reversed. Qualified immunity. (Click here for some long-form journalism on the case.)…
Contrary to company policy, a billing manager at LabMD—a cancer-screening lab—installs music-sharing application on her work computer; a file containing patient data gets included in the music-sharing folder. In 2008 a cybersecurity firm finds it and tells LabMD the file has spread across the internet. (Which is false.) When LabMD declines to hire the cybersecurity firm, the firm reports the breach to the FTC, which prosecutes the case before its own FTC judge. LabMD does not settle; the expense of fighting forces the company to shutter. The FTC orders LabMD to adopt “reasonably designed” cybersecurity measures. Eleventh Circuit: The FTC’s vague order is unenforceable because it doesn’t tell LabMD how to improve its cybersecurity.
Our friend Berin Szóka of TechFreedom sums it up: “The court could hardly have been more clear: the FTC has been acting unlawfully for well over a decade.” He continues by calling this “a true David and Goliath story”:
Well over sixty companies, many of them America’s biggest corporations, have simply rolled over when the FTC threatened to sue them [over data security practices]. … Only Mike Daugherty, the entrepreneur who started and ran LabMD, had the temerity to see this case through all the way to a federal court. …After losing his business and a decade of his life, Daugherty is a hero to anyone who’s ever gotten the short end of the regulatory stick.
[cross-posted from Cato at Liberty]
After the state’s high court ordered files of the politically charged Wisconsin John Doe II investigation destroyed, something else happened instead: “The Guardian published a leaked trove of documents from the John Doe II proceedings, including court filings, draft filings, and selected evidence prepared and kept by only some members of the prosecution team.” A just-unsealed report from the Wisconsin Department of Justice suggests a range of possible illegalities and rights violations, as well as political motivations, in the conduct of the investigators [“Warren Henry,” The Federalist]:
[Th]hree hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB [a state agency involved in the investigations] placed a large portion of these emails into several folders entitled, ‘Opposition Research’ or ‘Senate Opposition Research.’
investigators obtained, categorized, and maintained over 150 personal emails between [state] Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. [WIDoJ] was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named ‘Opposition Research.’
Live today (Tuesday) at 4 Eastern, and watchable online, a Cato forum with three authors of books on runaway prosecution: Rob Cary, partner at Williams & Connolly, and author of Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens; Howard Root, Former CEO, Vascular Solutions, and author of Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit-List; and Michael J. Daugherty, founder and president, LabMD, and author of The Devil Inside the Beltway: The Shocking Exposé of the U.S. Government’s Surveillance and Overreach into Cybersecurity, Medicine and Small Business; moderated by Clark Neily, Vice President for Criminal Justice, Cato Institute. More details:
Prosecutors and other government lawyers who enforce our nation’s laws wield vast power and exercise tremendous discretion with little oversight or accountability. For example, more than 95 percent of criminal convictions are now obtained through plea bargaining instead of jury trials. As a result, citizen participation in our criminal justice system has effectively been eliminated and with it much of the oversight that the Constitution’s framers intended. Even when cases do go to trial, it is possible — and, some have argued, disturbingly common — for prosecutors to further tilt the playing field in their favor by failing to disclose potentially exculpatory evidence, influencing witnesses with threats or inducements, and manipulating juries with improper arguments. Unfortunately, when government lawyers do commit misconduct, it is extremely rare for them to be punished or indeed even publicly identified. Finally, the U.S. Supreme Court has held that prosecutors are absolutely immune from civil lawsuits, even for willful violations of people’s rights, such as deliberately prosecuting someone they know to be innocent and suborning perjury to obtain an unjust conviction.
As a result, two important questions arise: (1) Are the existing checks on prosecutorial misconduct strong enough to ensure fairness in criminal and regulatory proceedings; and (2) are Americans well-served by our current system of near-zero accountability for prosecutors and other government lawyers? Our panelists have written powerful and often deeply shocking books about their firsthand experiences with that system and the damage it does to the cause of justice.
In more than 100 cases since 1980, Massachusetts courts of appeal have thrown out criminal convictions based on prosecutorial improprieties, and in 20 of those cases they have used the words “egregious” or “misconduct” or both to describe impropriety. Both numbers are likely to be lower bounds for impropriety that reaches judicial notice, given the number of cases in which prosecutorial missteps are addressed by trial judges, or take place in cases that result in acquittals or are not appealed. Because prosecutors are virtually immune to suit, professional discipline and public exposure are left as among the few ways to deter misconduct or bad practice.
But the Massachusetts study found that since 1980, just two prosecutors have been publicly disciplined by that state’s bar. Nine others were disciplined, but the public was prevented from knowing their names. And it isn’t as if the bar is averse to disciplining attorneys. Since 2005, it is has imposed sanctions on more than 1,400 non-prosecutors.
The study points out that many of the prosecutors found by appeals courts to have committed misconduct went on to higher office: “Three went on to become judges, one became Massachusetts attorney general, and others rose to top positions in district attorneys’ offices and state legal-ethics bodies.” We’ve recently seen efforts in some parts of the country to hold bad prosecutors accountable at the polls. But it’s hard to do that if we don’t even know who the bad prosecutors are. The study found that of the numerous times state courts have found misconduct, the courts mentioned the offending prosecutor’s name just four times.
P.S.: From Texas, prosecutor John Jackson faces possible sanctions in the case of Cameron Todd Willingham, executed after his conviction for murder by arson in 2004 [Balko]
- “Policing in America: Understanding Public Attitudes Toward the Police. Results from a National Survey” [Emily Ekins, Cato]
- “In ‘blistering’ ruling, court upholds recusal of entire Orange County DA’s office from murder case” [ABA Journal] Orange County scandals played role: “Prosecutorial Misconduct is Now a Felony in California” [Reason]
- “Mistrial for Cop Who Shot Walter Scott in the Back” [Cato podcast with Matthew Feeney and Caleb Brown]
- House Moves To Stop IRS Forfeiture Abuse [Jared Meyer] “California Enacts Asset Forfeiture Reform, Mostly Closing Lucrative Fed Loophole” [C.J. Ciaramella, Reason] “Iowa Will Pay Poker Players Robbed by Forfeiture-Hungry State Cops” [Jacob Sullum]
- Time for the great U.K. child abuse witch hunt to close up shop [Charles Moore, Telegraph]
- “Reining in Prosecutorial Overreach with Meaningful Mens Rea Requirements” [Trevor Burrus on Cato amicus in 11th Circuit case of U.S. v. Clay]
Florida primary voters have ousted state’s attorney Angela Corey, whose unprofessional conduct as prosecutor in the Martin/Zimmerman case and elsewhere has been a regular target of ours at Overlawyered. “The election caps a dizzying rise for [unknown challenger Melissa] Nelson and an equally shocking fall for Corey, one of the most polarizing political figures in Jacksonville history who generated national attention and enormous criticism for her prosecutions of George Zimmerman, Marissa Alexander, 12-year-old Cristian Fernandez and many others. Corey will depart office in the first week of January as the first incumbent state attorney in modern history to lose a contested election.” [Jacksonville Times-Union, Scott Shackford]
In 2011 we wrote about the remarkable case in which Opelousas, La. plant manager Hubert Vidrine “won a rare $1.7 million verdict against the federal Environmental Protection Agency (EPA) for malicious prosecution, with a judge lambasting EPA’s enforcement apparatus for ‘reckless and callous disregard’ of Vidrine’s rights.” According to a local paper’s report, a federal officer “was accused of targeting Vidrine because of his outspokenness and choosing an investigation in Louisiana to be close to a woman with whom he was having a sexual affair.” Defenders of the agency were at pains to portray it as an “unusual situation.”
Now there’s an update to report [FindLaw, h/t Institute for Justice “Short Circuits”]. The factory’s owner, Trinity Marine Products, had also been prosecuted in the case, but was not involved in Vidrine’s personal quest for justice afterward:
According to court documents, Trinity wasn’t even aware of the federal agents’ affair and its concealment until 2011 when one of Trinity’s employees read a blog post mentioning the affair and a DOJ press release giving details. Trinity promptly filed a FTCA claim in 2012.
The question was whether the company’s claim was untimely under the statute of limitations because the prosecution had been nine years earlier. A Fifth Circuit panel has now ruled that the suit can go forward under equitable principles because the government had not established that Trinity could by reasonable diligence have learned the reason for its injury earlier. FindLaw again:
The fact of the matter is this: the blog piece was only written because there was an unsealing of court documents that had detailed the motive behind the FBI agents’ lies. And since these lies were the cause of Trinity’s eventual injury (criminal indictment), no reasonable due diligence would have uncovered them.