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Recent Cases Highlight Rampant Prosecutorial Misconduct

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The conviction rate in U.S. federal courts now exceeds an incredible 99%, something more akin to what one would expect in a Third World dictatorship or banana republic.  The largely pre-ordained results, themselves, suggest a startling level of illegitimacy.  Even if every accused defendant were actually guilty, a normal margin of error would yield a conviction rate markedly lower than the patently fraudulent rate now being achieved.  Justice in federal courts seems to be alive and well in the world of entertainment, where various fictional legal programs rarely miss an opportunity to trumpet the ideals of the "best system in the world," but in reality fall woefully short of these mythical representations of "justice."  
This absurdly high conviction rate is at least partially achieved through gross federal prosecutorial misconduct.  Prosecutors engaging in subornation of perjury, withholding exculpatory evidence and other various misdeeds have become so common that seasoned legal observers recognize that such practices have become standard fare in federal prosecutions.  Even federal judges, largely in league with their prosecutorial counterparts, have begun to weigh in with blistering criticisms of prosecutors who seek convictions at any cost.
Recent cases have offered especially egregious examples of such abuse.  In Hawaii this past week, cracks began to develop in what was being billed as the largest methamphetamine case in the state's history.  USDJ Leslie Kobayashi acquitted two defendants in the drug trial, dealing a serious blow to prosecutors who claimed the ring trafficked hundreds of pounds of crystal meth to Hawaii.  


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USDJ Leslie Kobayashi sanctioned a federal prosecutor and was forced to acquit two defendants in a major drug conspiracy because of gross prosecutorial misconduct

Before the case even went to the jury, Harry Akana and Daniel Fola were found by the judge to be not guilty of all charges because of a complete lack of evidence.
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The government "has failed to present any admissible evidence that Akana and Fola were even 'slightly connected' with the conspiracy," Kobayashi said in her order.
"As far as I know, this was the biggest ice case they've ever done here," said Akana's attorney, Mark Kawata.  "And now it has problems."  Kawata went on to say that he was not surprised by the acquittals.
"He really didn't have much of a connection to the so-called conspiracy," Kawata said of Akana, adding that his client lost his job as a school security guard because of the lengthy trial.  The trial was already in its 27th day when the defendants' motions for acquittal were granted.  

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Defense attorney Mark Kawata saw through the government's misrepresentations and secured his client's acquittal

Attorney Richard Hamar, who represents the case's alleged ringleader, Walter Dominguez, said the acquittals bode well for the remaining four defendants.  He said he is confident the jury will ultimately acquit his client.  
"I'm thrilled for them personally and their lawyers," said Hamar who is based in San Diego and Mexico.  "It's a big win for local lawyers."
The court's unusual decision is rare at this late stage of a major trial and highlights "inherent weaknesses" in the government's case, Hamar said.  

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Defense counsel Richard Hamar represents the case's alleged ringleader who may also benefit from what the judge termed "gross prosecutorial misconduct"  

Michael Song, a former federal prosecutor in Honolulu, had a decidedly different view of the proceedings.   Song oddly asserted that it is not uncommon for a judge to grant acquittals to some defendants in a drug case.  He went on to explain why such acquittals are not unusual in criminal cases involving a conspiracy between numerous defendants.  "It could have been part of the prosecution's strategy for smaller players," he said.  
"It's not that big of a blow to the government," said Song, who now holds himself out as a criminal defense attorney in Denver. "I'm sure (prosecutors) probably had in their mind a ranked order of culpability. ... I'm sure those people are still in it."
Song's dual role of defense counsel and apologist for the U.S. attorney's office raises serious questions about exactly who he is representing.  Conflicted counsel like Song is another factor in the federal government's absurd 99% conviction rate.  With Michael Song filling in as their de facto representative, a spokesman for the U.S. Attorney's office in Honolulu declined to comment further on the government's setback.  

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Former federal prosecutor and now purported defense counsel Michael Song continues to act as an apologist for the U.S attorney's office 

In reality, the government's case against these defendants had been falling apart for some time.  The original indictment had alleged the two acquitted defendants and four other men conspired to distribute 400 pounds of methamphetamine.
Last month, Kobayashi ruled that the government was "sloppy" and "tardy" in providing discovery materials to the defense.  She also sanctioned Assistant U.S. Attorney Jonathan Loo for prosecutorial misconduct and referred him to the U.S. Department of Justice's Office of Professional Responsibility which oversees the misconduct of federal prosecutors.  While such violative conduct has become relatively commonplace in federal courts, sanctions against offending prosecutors remains exceedingly rare.
The actions of the prosecutors in this matter, however, were so outrageous that the government felt compelled to apologize as part of its closing argument.  Judge Kobayashi's prior rulings left the prosecutors with little choice as they tried to salvage what was left of their case.
"You all know the government made mistakes in this case," AUSA Thomas Muehleck conceded to the jury during his closing statement.  "We screwed up."  
Muehleck said the prosecutorial mistakes were "professionally embarrassing" and "regrettable," but he steadfastly insisted the evidence against the remaining four men was overwhelming.  "The evidence has shown there was a conspiracy," he said.  
Muehleck's insistence on the defendant's guilt, despite serious and documented prosecutorial misconduct, highlights another problem in federal courts: pathological prosecutors who seek victory at any cost.  


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Flagrant federal prosecutorial misconduct contributes greatly to the fed's specious 99% conviction rate

When the case in chief against the defendants concluded, Kobayashi included highly unusual language in the jury instructions.  "The government withheld evidence as to certain witnesses, some of whom have already testified."
Nevertheless, the judge attempted to limit damage to the government's case.  The jury's instructions regarding the acquittals urged jurors not to let that influence their verdicts for the remaining defendants.  "For reasons that do not concern you, the case against defendant Harry Akana and   defendant Daniel Fola is no longer before you."  The judge further exhorted the jury, "Do not speculate why."
While federal prosecutors in Hawaii were caught committing flagrant prosecutorial abuses, facts were coming to light regarding their counterparts in New York.  On February 18, 2014, in the Second Circuit Federal Court of Appeals, Tyrone Gilliams filed a motion revealing that an affidavit hidden from the defense by federal prosecutor AUSA David Massey clearly shows Gilliams' innocence.  The affidavit demonstrates that Gilliams, a prominent Philadelphia based entrepreneur, philanthropist and event promoter did not devise the scheme to defraud investors for which he was sentenced to ten years in prison last fall.  

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AUSA David Massey hid exculpatory evidence from the defense and misrepresented the defendant's role in the case

The previously withheld affidavit from the alleged victim, David Parlin, demonstrates that the scheme involving U.S. Treasury Strips, for which Gilliams was convicted, was actually entered into by Parlin with another individual, Vassilis Morfopoulos, and confirms that Gilliams never even met his purported victim.
"It is very disturbing that the prosecutors would knowingly withhold evidence and attribute the treasury strip investment scheme to my client when they knew that Parlin and Morfopoulos had discussed the same type of treasury strips investment at least four months before Morfopoulos met my client" said Warren R. Hamilton, Gilliams' attorney.  "The Brady rule mandates that the prosecutor's goal is to seek justice in fair trials, not merely to win convictions by any means. The Supreme Court ruled that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence."  

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Tyrone Gilliams was convicted at trial due to the prosecution's failure to turn over exculpatory evidence

Hamilton's statement regarding the duties of prosecutors is technically correct, but in practice way off the mark.  Experienced federal defense lawyers know that the primary goal of federal prosecutors is to win cases, to keep the conviction rate north of 99%.  Seeking justice does not even remotely factor into the equation.  
After Gilliams' sentencing, AUSA Michael Levy said that Gilliams "has not shown any remorse."  It is an interesting statement, to say the least, from a prosecutor who withheld and falsified evidence.   
There are increasing calls within the legal community for strengthening the Brady rule through open files reform.  This would require the opening of prosecutors' files to defendants, as a general rule.   In May of last year, the New York Times editorialized that "it might seem obvious that prosecutors with any sense of fairness would inform a defendant's lawyer of evidence that could be favorable to the defendant's case.  But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule." 

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The Federal Criminal Code has criminalized a vast array of seemingly innocent acts 
These ongoing abuses largely flow from a prosecutorial mindset that believes the accused "must have done something."  Convicting a desired target is simply a matter of the prosecutor being sufficiently creative.  The Federal Criminal Code offers a wide array of amorphous charges, so there is little incentive to concede innocence, which in any event would be a poor career choice for a federal prosecutor seeking to advance up the judicial corporate ladder.  This, coupled with the aforementioned lack of accountability for federal prosecutors caught engaging in misconduct, has created an environment where convictions are not so much earned as they are expected.

Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial (more...)

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The whole US system of "justice" needs to be revam... by Archie on Saturday, Mar 1, 2014 at 11:40:56 AM
Those who are familiar with the many cases of pros... by Gloria Grening Wolk on Saturday, Mar 1, 2014 at 11:47:55 AM
What will people do when they realize that the law... by Mark Adams JD/MBA on Saturday, Mar 1, 2014 at 6:41:59 PM