404 B

In State court we call it Williams Rule. In Federal court they call it 404B material- evidence of prior crimes, wrongs and acts. 

In State court a judge just sentenced a lawyer to two days jail for silently saying a curse word (the judge said she read his lips). 

In Federal court, for the second time, prosecutor Andrea Hoffman has been caught being less than candid with the court and with her discovery obligations. From John Pacenti's  DBR article on 5/24/2012:


A visibly frustrated Marcia Cooke called federal prosecutor Andrea Hoffman "disingenuous," in questioning her candor about when she knew "vetted units" of the Colombian national police were on the payroll of the Drug Enforcement Administration...

The issue arose in the Miami courtroom of U.S. District Judge Marcia Cooke after defense attorneys raised questions about the role Colombian police played in the investigation of a cocaine trafficking ring that resulted in charges in Florida against 18 people. Defense attorneys started asking in April if Colombian police were paid for their assistance.

Assistant U.S. attorney Andrea Hoffman told Cooke's court she learned of the payments only after a jury was chosen Monday or on Tuesday.

Hoffman was apologetic and blamed miscommunication and a language barrier with Colombian police.

"This is why this does not make sense to me. This is all you do," Cooke replied. "Answer me this: Why does the government get a pass?"

The judge indicated she would reserve judgment on what sanctions, if any, she would impose, but her anger and frustration were palpable. She said Hoffman had breached her ethics as a prosecutor and apparently forgotten she represents the people of the United States...

The exchange with Cooke was not the first time Hoffman faced intense questioning by a Miami federal judge over her conduct in a criminal case. Hoffman was one of three prosecutors who faced sanctions for not telling a defense attorney that the government had its witnesses secretly tape his phone calls.

She was sanctioned in 2009 for her part in failing to inform accused pill mill Dr. Ali Shaygan that two prosecution witnesses had secretly taped phone calls to his defense team. Sanctions against three prosecutors and their office and a $601,000 penalty were overturned by the U.S. Court of Appeals for the Eleventh Circuit. But the substance of findings by U.S. District Judge Alan S. Gold's were not in dispute... Cooke declined to dismiss the case or declare a mistrial but added, "The tug in that direction is quite strong."

She noted the government witnesses were forthright about the police officers being paid and there seemed to be nothing illegal or nefarious about any bonuses.

Cooke also said she understood the defense may believe the officer's objectivity has been tainted by the DEA payments and wondered aloud if an appellate court might overrule her.

She then turned to Hoffman and said she would reserve judgment on her behavior in the case.

Rumpole wonders:

What conduct is worse: silently cursing, or a prosecutor caught withholding evidence for the second time in her career? 

See You In Court. 

"THEY'VE BEEN THROUGH HELL"

We all have had clients who have been through a long journey in the criminal justice system. By the time they reach the trial or sentencing stage, the lawyer, having seen the toll the prosecution has taken, often tells the court that their client has suffered enough. In REGJB lingo "You can beat the rap but you can't beat the ride." 

"They've suffered enough" is not a cognizable defense. Judges might nod sympathetically, but prosecutors normally scoff at such a pronouncement and respond with "they shouldn't have committed the crime" or some other pearl of wisdom they teach in prosecutor college. 

It therefore was more than a bit surprising when attorneys for disgraced federal prosecutors Sean Cronin and Andrea Hoffman told US District Court Judge Jose Martinez  last week that their clients "had been through hell." 

Hardly. 

Cronin and Hoffman were part of the prosecutorial team that wrongfully prosecuted Dr. Ali Shaygan. Here is our initial post on the case in April. 2009.  Cronin was the lead prosecutor who threatened attorney David Markus that there would be a "seismic shift" in the criminal prosecution if Markus filed a motion to suppress Dr. Shaygan's statement. Markus filed the motion, Cronin filed a hundred or so new counts in retaliation. The magistrate granted the motion, which caused the US attorneys office to pull out all the stops and throw out the constitution in order to win. 

In preparation for trial, the US Attorneys office authorized the taping of phone calls by a government informant to the defense team. The prosecutors sent their informant to try and get the defense attorneys to agree to do something improper. Then, the prosecutors never disclosed their little illicit ruse until Markus discovered it on cross examination. 

Dr. Shaygan was acquitted by a jury.  Judge Gold, who presided at the trial, wrote a blistering order detailing the improper if not illegal actions of the government's prosecutors. The prosecutors appealed. When the 11th circuit returned the case, Judge Gold recused himself and Judge Martinez held a hearing last week. Hence the curdled mewling from the prosecutors' lawyers  that they "had suffered enough" and "been through hell."  

Poor babies. Of course they never were wrongfully arrested, spent time in jail, lost their job, were threatened by the DEA and their hired thugs (the AUSAs),  and had to sit through a jury trial where the other side used the power of the government to lie, cheat and steal a guilty verdict that would have sent them to prison for decades. 

No, prosecutors Cronin and Hoffman didn't have to suffer the same treatment from the legal system that they doled out. But.....they've apparently been a bit worried. That's what happens when you get caught doing bad  things. 

Judge Martinez, apparently reluctantly, closed the case against the two prosecutors.  But there still is a bar complaint pending against both prosecutors, courtesy of Judge Gold who, based on the conduct he saw, referred the issue to the Florida Bar. 

As we say in the REGJB, "You can beat the rap, but you can't beat the ride."

See You In Court.