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Thursday, April 09, 2009

KABOOM!


Here is a summary of the order:  1) The lead agent lied at the motion to suppress and during the sanctions hearing. 2) The lead prosecutor Cronin lied during the sanctions hearing and acted in a vindictive manner based on one of the defense team beating his butt in a previous case. 3) The supervising prosecutor Gilbert probably lied during the sanctions hearing and did nothing to supervise this case. When she was caught in not turning over Brady material, her explanation was probably a lie. 
4) The US Attorneys office might well have a culture of win at any cost, and when caught, they lie. As a Judge this bothers me. 

That is the sum and substance of 50 pages containing details of lie after lie. It is just shocking what went on here. 

Here is the DBR article:

Judge orders U.S. to pay more than $600k in legal fees for misconduct

April 09, 2009 By: John Pacenti

A federal judge today ordered the U.S. government to pay more than
$601,000 in legal fees and costs for secretly taping the defense team
for a Miami Beach physician who was prosecuted and acquitted by a jury
for illegally prescribing narcotics.


U.S. District Judge Alan S. Gold of Miami entered a public reprimand
against U.S. Attorney Alex Acosta and his senior staff members for
failing to properly supervise the trial attorneys, Sean Cronin and
Andrea Hoffman, as well as their supervisor, Karen Gilbert.

The judge reprimanded the two trial prosecutors, saying that along with
Drug Enforcement Administration agent Christopher Wells, they "acted
vexatiously and in bad faith" in prosecuting Dr. Ali Shaygan. Also
reprimanded was assistant U.S. Attorney Karen Gilbert, the narcotics
section chief.

Gold called the secret taping of phone calls to Shaygan's attorney and
defense investigator by two informants was "profoundly disturbing." He
raised the specter of the recent dismissal of a conviction against
former U.S. Sen. Ted Stevens, R-Alaska, because prosecutors in that case
withheld key evidence.

The $601,795 covers court fees and lawyer costs dating from a
superseding indictment filed by prosecutors in September.

"The order speaks for itself. We regret that any of this ever happened
in the first place but we are grateful that Judge Gold took it seriously
and did the right thing," said Miami criminal defense attorney David O.
Markus, the lead counsel for Shaygan. "Thank goodness that the conduct
did not distract the jury from finding Dr. Shaygan not guilty of all 141
counts against him.

Miami attorneys Marc Seitles and Robin Kaplan served as co-counsels for
the defense.

In his order, Judge Gold acknowledged that the U.S. Attorney's office
admitted its mistakes and that Acosta referred the matter for
investigation by the Department of Justice Office of Professional
Responsibility. Gold concluded Acosta was not aware of the secret taping
of phone calls on what turned out to be a specious allegation of witness
tampering by the defense.

In a statement, the U.S. attorney's office in Miami reiterated that it
regrets the mishap and has taken action to ensure it does not happen
again. Alicia Valle, spokeswoman for the office, said from the start
Shaygan was offered compensation "even though it was our belief that
these mistakes were not intentional."

"Our attorneys are lifelong public servants who are committed to the
pursuit of justice," Valle said. "One event should not taint the nearly
300 hard working attorneys in the Southern District of Florida."

Even before Gold issued his order, Gilbert, the office's top narcotics
prosecutor, requested reassignment. Cronin was reassigned out of the
criminal division.

Gold said he could issue further sanctions depending on the outcome of
the internal investigation by the Justice Department. He said Cronin had
allowed his personal feelings to affect the case against Shaygan.

Cronin told the defense that there would be "seismic shift" in the case
if Shaygan pursued a motion to suppress a statement he made to Wells.
After the defense filed its motion, Cronin filed 100 more counts against
the doctor.

"The various deficiencies in Cronin's conduct constitute unethical
behavior not befitting the role of a prosecutor," Gold wrote.

The judge said he plans to forward his 50-page order to The Florida Bar
and request that it take appropriate disciplinary action against Cronin,
Hoffman and Gilbert.

John Pacenti
Federal Courts Reporter
Daily Business Review

36 comments:

Anonymous said...

these pricks should be disbarred immediately.

Anonymous said...

The judge plans on forwarding his 50 page order to The Florida Bar - Looks like a trio of prosecutors will be looking for a DEFENSE ATTORNEY!

Anonymous said...

Finally the corruption is exposed

Former ASA said...

It is late, and I am tired from a long week and a vigorous post-work visit to the gym. But I must post three basic rules for prosecutors, which I am sure that nearly all will agree with:

1. Your job is to do justice, which means doing the right thing. Your job is not to convict by any means possible.

2. Brady material--when in doubt, turn it over.

3. Everyone makes the occasional honest mistake or lapse in judgment. If you do so, admit it and fess up--it is the right thing to do, and everyone in the criminal justice system recognizes that we are all human. The problems these yahoos at the U.S. Attorney's office face is only partially rooted in their actions (although the adding 100 charges is simply vengeful). Their failure to "fess up" is what has landed them in doo-doo.

Anonymous said...

Maybe they'll hire Markus.

Anonymous said...

It feels like a democrat is in the white house. Low-n-behold if George "I don't follow the constitution because it's just a piece of paper" Bush was in the white house I am not sure we would be seeing such action.

Judge Gold should immediately be elevated to Chief Justice of the Supreme Court of the United States.

Thank god I live in America.

Can we now get some of the State Court Judges to grow a pair!?!

David Markus is the man!

Anonymous said...

Do any of you making these comments know these attorneys? I do. I have litigated with them and AGAINST them. They are three of the finest, hard working and dedicated public servants I have had the pleasure to meet. They may have made serious mistakes. I say "may," becuase I was not part of either trial team nor involved in any decision of the thousands of judgement calls an attorney must make in a case.

SO before you begin to celebrate what you may perceive as a victory, perhaps we should remember that sometimes judges get it wrong- both for or against any given side on any given day. Despite what they may think, they are mere mortals like us. It may be in a ruling that sends an innocent man to prison or in a ruling that ends the carrer of lawyers who made honest mistakes.
After reading the order, the last thing on my mind was a celebration, it was "But for the grace of God, there go I." This could happen to anyone of us.

Just like many of us lawyers rallied behind and supported our dear friend and collegue Ben Kuehne-guilty or not, we should support these lawyers whose careers may very well be over.


After reading the order, I am simply left with the impression that this order is the most spitefull and vengeful order I have ever seen in my much too long carrier as an attorney in south florida. Judges much too often forget, or never experienced, what its like to be an attorney in the trenches litigating for your clinet- the "people" or a defendant. They forget that sometimes important decisions are made without the luxury of time, that we say and do things that, in hindsight, may have been handled differently. It seems as though the robe that should signify dignity and justice has become a sheild which empowers them to treat those who come before them, as lawyers, or defendants, or witnsses, with utter injustice and disrespect. Not once did this jugde ever give these layers the benefit of the doudt, rather he chose to give some strung-out drug users more credibility. (On the one day I did sit in on the trial, one of these civilian witnesses was so drugged up that he was falling asleep on the stand.)
All in in all, its a sad day for lawyers and our profession. Its worth mentioning one more time-"But for the grace of GOD. . . "

old guy said...

Shameful. Absolutely shameful opinion.

They forgot that they work for all of us + took an oath to uphold the Constitution.

Anonymous said...

"Your job as assistant US attorneys is not to convict people. Your job is
not to win cases. Your job is to do justice. Your job is in every case,
every decision that you make, to do the right thing. Anybody who asks you
to do something other than that is to be ignored. " Any policy that is at
tension with that is to be questioned and brought to my attention. And I
mean that."  Eric Holder

Hopefully, the A.G. is serious about this and the Alfredo Gonzalez/Alex Acosta era of hack prosecutions has ended.

Anonymous said...

Anyone who files 100 counts as a response to a motion to suppress is not worthy of being a lawyer or a prosecutor. These weaklings should be disbarred at once.

Anonymous said...

To 12:08 who believes that Judge Gold's order is spiteful and vengeful, get ahold of yourself.

The actions of the prosecutors here were spiteful, vengeful, and wildly inappropriate.

The action taken by Judge Gold was an appropriate response - down to the monetary penalty and the referrals to the respective state bar associations for the three miscreants.

And how many of the lawyers who stood and still do stand by Ben Kuehne are prosecutors? Perhaps a few, but certainly not many from THAT office.

As criminal defense lawyers we have every right to applaud this courageous judge for doing the right thing.

Anonymous said...

The Herald today had THREE, yes, THREE big stories about prosecutorial misconduct.

What a trifecta!

Scott Saul said...

You know what is truly scary?

How about the little guy, where there are no significant resources, to be able to catch this type of behavior. This defendant had a top notch legal team scrutinizing every aspect of the case.

Think of all the clients of humble finances or clients that have criminal records, where they are pre-labeled before they come before a court.

Think of the defendants (who compromise the majority) who have little to no leverage to check the incredible power of the Federal government.

Don't let the other PI, Corporate, Divocer, civil litgation attorneys ever spread the false and pompouse rumor that we are not as important. The criminal defense bar, (you know, us lawyers experienced and willing to challenge the authorities) are vital components of a free society.

Kudos to counsel for this case and all my other fraternal brethen for fighting the good fight.

real fake blecher. said...

Shocking and disgraceful. Not Scott Saul- the actions of the prosecution.

Anonymous said...

Why am I not shocked that the defense bar takes such joy in seeing a career prosecutor get lambasted in a spiteful order?

3:00pm, you sound just like your brethren who are quick to criticize prosecutors as being vengeful when you don't get what you want.

Anonymous said...

These are not fine prosecutors. They are criminals and should forfeit their bar license.

This was not a judgment error or lapse of reason. It was criminal actions inviolate of the constitution

Shameful.

Anonymous said...

Leave 12:08 alone, the whole 600k thing is what bothers him. That, and the notion that someone in his former office could ever commit misconduct.

Anonymous said...

As a state prosecutor, I'll be the first to admit that my brothers over at the USAO have been known to have some ego problems. But damn, the defense bar is twice as bad on your sanctimonious soap boxes crying about spiteful prosecutors who should only "seek justice".

Save the homily. Most of us career prosecutors do this job because we honestly believe that we are making a positive difference. Do we make mistakes? Sure. Especially if the defense attorney is perceived as unethical or a jerk. Hey, we're human too. If you don't think that your clients "suffer" when you antagonize us for no good reason other than because you can then you are living on another planet.

I've always taken pride that most of us on the criminal side can be a lot more civil than our civil counterparts. We routinely make deals that involve people going to prison with just out word when civil attorneys can't agree on what time to have a meeting unless it is signed in writing.

I don't know AUSA Sean Cronin, but most of you posting don't know him either. How about easing off on crucifying the guy and remember when you did something on a case that in hindsight you weren't to happy with. If you've been practicing for more than a year, it shouldn't be too difficult.

Anonymous said...

Hey, Friday, April 10, 2009 12:08:00 PM

Go back and re-read the 50 page order. The Judge states that he does not question the prosecutors motives for bringing the original 20 something charges, he even elaborated about Broward County being the capital of the USA for doctors being drugs dealers and the need to crack down on these doctors.

Judge Gold unleashed his reasons and detailed facts for sanctions based on what came after the motion to supress was filed by Markus, and the vile threats of the AUSA to level over 100 more frivolous charges if the motion was persued. Defense counsel did not stand by silent when the threat was made, oh no, they complained to the supervisors and were ignored. Had the upper brass been doing there job at that point when counsel complained this whole mess would be moot.

What is more disturbing to me is that Markus client may have been guilty of the original 20 charges and now is a free man because of the personal bias of the prosecution.

Just a sad day all the way around.

Anonymous said...

Mr or Ms April 10, 7:44, I did read the order and all of the transcripts as well. Did you? Perhaps you should know of what you speak before you make such comments. The reason stated in the record by all who were asked the question is that the additional counts were added to the indictment so that Gold would allow in evidence additional evidence which had been located in patient files. Otherwise, the evidence would not have been admissible. Gold is notorious for limiting evidence if it is not specifically charged. I am one who has benefitted from that.

I have no problem with the fine, and I have no problem with the fact that Gold honestly thinks these prosecutors acted unethically. But there were two sides here, and he essentially used the word of two drugged out witnesses (as I said, I saw them myself) to make his conclusion. I would not end the careers of life long public servants, defense or prosecution, on the word of those witnesses. Much more appropriate measures were available to him just in case, as many on both sides of the aisle think, he got it wrong. At least our clients have appellate remedies- these lawyers don't.

To 3:00 :

I don't care how many from "THAT" office support Ben or not. I support any lawyer, prosecution or defense, civil or criminal, whose career is in the hands of judges who think they are GOD. I'll say it again for those who think they are immune to this happening to then one day- BUT FOR THE GRACE OF GOD, THERE GO I.

Anonymous said...

Lest Cronin, Hoffman and Gilbert forget about former AUSA Karen Schmid Cox, 794 So. 2d 1278 (Fla. 2001).

Anonymous said...

I have it on good authority that former prosecutor Samantha Ruiz Cohen is filing gainst Peter Camacho Adrien.

Anonymous said...

7:17, you're right, most of the traffic hacks on this blog and career bondsman puppets dont know Cronin. Those that do, know that this order was only a matter of time. The guy hates the concept of criminal defense, trust me.

Anonymous said...

9:28. You are an idiot. These prosecutors tried to end the lives, but putting them in jail, of three defense lawyers based on the supposed word of someone you call an unreliable addict. That would be bullshit were the allegation even made. But, thanks to the hearing we know it was not. That makes the whole matter that mu h more despicable.

Anonymous said...

12:08 - Please get your facts right before making such comments about "drugged up" witnesses that you observed.

That drugged up witness was the DEA confidential informant that was tape-recording Mr. Markus, and trying to solicit bribes.

This was the same guy that said he "hates cops" on the stand while the prosecutors sat in silence knowing he was signed-up as a DEA confidential informant and knowingly failed to disclose to defense counsel.

This was the only guy that testified while drugged-up which the defense noted during cross, not the government.

This was the a government witness in the indictment, not a defense witness.

The only lay witness that Judge Gold relied upon in his order was a woman who was five months pregnant who said that DEA agents twisted her words, told her what her answers needed to be, and intimidated her.

Please get your facts correct before making any comments about the actual trial testimony in this case.

the trialmaster said...

The trialmaster has never seen such an abuse of power. after these so called proscuters have their "due process" they should be disbarred and the government should go against them personally to recoup the taxpayer money of $600,000 that will be paid to the defense.

Anonymous said...

Here's my question.

1. Was it a good idea at the end of the day for Markus to do the right thing and go after these prosecutors and make them pay for the wrongs they did?

2. Would another defense attorney have just ignored some of the facts and not make waves?

What I am getting at is, will Markus be a marked man and find it harder to get plea deals at the AUSA office based on such a high profile slam of that very office?

Would another defense lawyer have gone the extra few miles or would they have just look towards the future and not made any waves?

I ponder this question because it speaks volumes for the guts it takes to be a true defendar of the law and what it represents.

If I was facing federal criminal charges would I now want Markus or is he damaged goods for royaly upsetting the AUSA office like no other could?

CAPTAIN said...

to friday, 11:20 pm:

THE CAPTAIN REPORTS:

That would make it a three person race, as I have it on good authority that former Judge Jeffrey Swartz will be filing against Adrien too.

Cap Out ...

Anonymous said...

Rump
Is it really all
that different in State Court?
D.Sisselman

Anonymous said...

these blogs are great forums for enemies to banter back and forth. it would be nice if both sides signed their names though. these comments are clearly made by people who were present during the trial-the trial attys themselves. Maybe you all should fight to the death. I hope the defense wins in this case... cronin is a fucking dick turd

Anonymous said...

Can't we all just get along?

Anonymous said...

Oh the Markus jealousy. So sad. Grow up people, go collect your $250 a month per $1500 client and shut up.

Anonymous said...

This talk about Markus being damaged goods is overstated. At most, AUSAs will only deal with him via written correspondence so that their comments are not misunderstood. He might also lose some of the access that he has to higher ups at the USAO, but that is to be expected (at least for a while). Small price to pay for doing what he thought was right.

The most troubling issue as I see it--and I just read the order--is the failure to make the Giglio disclosure re: the CS status of these witnesses. The other conclusions that Gold makes are--upon a close reading of the order--predicated on a set of inferences.

As for the initiation of the investigation, I think Judge Gold's order improperly inserts the Court into criminal investigations. Specifically, his order directing AUSAs who have pending witness tampering investigations to approach him EX PARTE and discuss it with him is disturbing. I also think that the tone of the order is particularly acerbic and bitter; it does not comport with the tenor that one expects from the federal bench. He could've reached the SAME results with a more neutral tone.

Also, I think one is going to see much more work for judges in criminal cases. I'm not a prosecutor, but I suspect prosecutors will file motions for in camera inspection of discovery in an effort to seek the court's determination on what is Giglio, Brady and Jencks. That way they totally insulate themselves from any discovery-violation accustations.

Anonymous said...

Just throwing it out there on Ms. Gilbert's behalf, it's hard to juggle this AND a quadruple homicide case with no bodies. Just sayin.

Anonymous said...

Just throwing it out there, it's hard to juggle these to idiots(Cronin/Hoffman) AND the quadruple homicide case it's a bit hard to micro manage, especially when said idiots aren't cooperating with Gilbert. Also, a majority of the information against Gilbert was given by the other two who you are ragging on so much. Basically what I'm saying is Gilbert in the end has been dragged down by the other two. Now, while she could have payed a bit more attention(again take in mind the other case), when two prosecutors with completely fine pasts suddenly do something so drastic, with absolutely no heads up you can see were Gilbert is in a bit of a pickle.
Oh, one more thing, before posting on things like this, don't randomly agree with one side with no thought on the subject(Thursday, April 09, 2009 10:03:00 PM). Also, try to be a bit more open minded, all though Friday, April 10, 2009 12:08:00 PM obviously favored the prosecutor's side, assuming that he/she speaks the truth of also going against them, at least they are open minded enough to think about it rationally. It's like politics, nobody likes the people who are throwing around things they heard even though they know nothing about politics. Before you start talking to me in this legal gibberish, understand a thoughtful 8th grader such as myself wouldn't understand.

Sounds Right said...

So Karen Gilbert is now an appeals referee for the Reemployment Office. I guess that's where you go when your career as a prosecutor dies. I recently had her in an appeals, and I can honestly say she seemed incredibly nasty, rude, and downright mean. I had to look her up, and it looks like Karen Gilbert has plenty of reason to be so nasty. No surprise that Florida still has this lady employed somewhere. Sounds like she should have been fired for what she did years ago. Just wow!