Judge Complains About Insufficient Response to Prosecutorial Misconduct
Prosecutorial misconduct is so often ignored or winked at by judges that it's refreshing to find a judge who is willing to take the problem seriously. The chief judge of the U.S. District Court in Boston, Mark Wolf, wrote to Alberto Gonzales (for all the good it will do) complaining that the Justice Department's private reprimand of AUSA Jeffrey Auerhahn was an unduly lenient response to Auerhahn's decision to withhold exculpatory evidence from the defense. That misconduct, in the words of Judge Wolf, “required the release from prison of a capo in the Patriarca family of La Cosa Nostra.”
“A mere secret, written reprimand,” Chief Judge Wolf wrote on Friday, “would not ordinarily be a sufficient sanction for the serious, intentional, repeated and consequential misconduct by Mr. Auerhahn.”
Oddly, although the Justice Department's internal Office of Professional Responsibility concluded in 2005 that the evidence was exculpatory and that Auerhahn had a duty to disclose it, the Department argued in a 2006 brief that the evidence wasn't material and that disclosure wasn't required. The author of that brief apparently didn't receive the OPR memo.
In his letter to Mr. Gonzales, Judge Wolf expressed dismay over the department’s conflicting positions. “It is disturbing,” Judge Wolf wrote, “that the Department of Justice continued to advocate positions which O.P.R. had flatly rejected.”
Disturbing but not surprising. We can expect the response from Gonzales to be a barely stifled yawn. Judge Wolf asked state disciplinary authorities in Massachusetts to take their own look at Auerhahn's misconduct. Disciplinary complaints about proseuctors are rarely lodged by judges, so there's some hope that the state will take it seriously.
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