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.

< My Favorite Post of The Day Open Thread | Dershowitz Writes. Hilarity Ensues >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Here in California (none / 0) (#1)
    by kaleidescope on Tue Jul 03, 2007 at 06:26:39 PM EST
    A deputy Sonoma County DA was disbarred for prosecutorial misconduct.  And of course, Mike Nifong was also recently disbarred for prosecutorial misconduct.  

    It will be interesting to see if the Gonzo "Justice" Department reacts to Massachusetts Bar proceedings that could disbar the AUSA.  It would certainly be a black eye, even for an agency as corrupted as it now is.  It would also be interesting to see whether Gonzo tries to argue that State Bar proceedings against the AUSA are preempted.

    Preemption (none / 0) (#2)
    by txpublicdefender on Tue Jul 03, 2007 at 07:45:44 PM EST
    I don't know what the resolution to this argument ended up being, but I know back when I was in law school, 8 or 9 years ago (pre-W), DOJ was arguing that actions undertaken by its attorneys were not subject to state bar discipline.  The specific issue at the time was on a rule most, if not all, state bars have regarding having contact with someone represented by counsel.  I don't know if I ever heard how that all shook out.