Motions to Dismiss for Prosecutorial Misconduct
The motions to dismiss for prosecutorial misconduct will likely be argued in court on Monday, April 26, 2009. The court has to resolve this matter so the government can “rest” its case, which marks the end of the government’s presentation of all its evidence. The issue of prosecutorial misconduct was already argued on Friday, April 17. The following briefs outline the arguments and the applicable law.
1. Docket No. 1113: Defendants’ Joint Motion to Dismiss the Indictment Due to the Government’s Repeated and Intentional Misconduct, filed April 23, 2009 by W.R. Grace.
2. Docket No. 1117: Defendant Robert J. Bettacchi’s Motion for Dismissal with Prejudice on the Ground of Prosecutorial Misconduct, filed April 24, 2009.
3. Docket No. 1124: Government’s Consolidated Opposition to Defendants’ Motions for Dismissal Due to Prosecutorial Misconduct, filed April 25, 2009.
4. Docket No. 1147: Court Order denying Motion to Dismiss for Prosecutorial Misconduct, ordered on April 28, 2009.
~ Nick Lofing (4/26/09 12:16 p.m.)
Order Denying Dismissal for Prosecutorial Misconduct
The issue presented by the parties on April 17, was whether the case should be dismissed for prosecutorial misconduct. Judge Molloy’s order, from April 28, clearly states the case should not be dismissed on the grounds for prosecutorial misconduct. In the order, Molloy provides his rule for judging prosecutorial misconduct, and further provides a glimpse into his philosophies about the trial process.
In United States v. Chapman, the district court dismissed a case for Brady and Giglio violations, and on appeal the 9th Circuit affirmed the decision. 524 F.3d 1073 (9th Cir. 2008). There are two factors which the 9th circuit found warranted dismissal for prosecutorial misconduct: (1) the witnesses could not practically be recalled, and (2) the district court found that the government acted flagrantly, willfully, and in bad faith.
Applying these factors to this case, Molloy did not find either one met. Here, Locke could easily be recalled to the stand. As for the second factor, Molloy did not believe the prosecution had acted flagrantly, willfully or in bad faith when it failed in turning over all Brady material to the defense. Regarding the prosecution, Molloy provided the following reasoning, “The history of this case suggests that the failure to disclose documents related to Locke is merely the latest manifestation of a systemic problem; i.e., that the Department of Justice charged a case larger than then one it prepared to prosecute.” (p.7). To conclude his opinions regarding factor two, Molloy states, “Incompetence is not bad faith. Poor planning is not malice. A systemic flaw is not always flagrant conduct. And the damage, while serious, is not irreparable.” (p.9).
Molloy then ends the order by detailing the remedy. While Molloy acknowledges that Locke is not trustworthy, he trusts in the jury process to responsibly determine the situation. “The issue of Locke’s trustworthiness is ultimately for the jury to decide. Intrusion into the jury’s consideration of the factual record should occur only a minimally necessary to correct a failure of the process to ensure fairness,” states Molloy in a way vaguely reminiscent of Justice Cardozo’s The Nature of the Judicial Process. (p.12).
–Christopher Orman (posted 6:15 pm on April 29)
Also see the following blog post after observing the arguments on Friday, April 17 on the matter:
Defense Makes Its Case on Prosecutorial Misconduct – “This Case Should be Dismissed”
After lunch, defense counsel continued to question Agent Marsden on what he deemed were obvious showings of prosecutorial misconduct. Despite Bernick’s rapid questioning and the imploring of Thomas Frongillo, there was a significant absence of evidence establishing prosecutorial misconduct. Arguably, the defense did not meet the necessary burden of proof. However, by all appearances, Judge Molloy believed they did.
The defense’s goal was to examine Marsden’s interviewing techniques (trying to establish them as “coaching” and not interviews), and thus to show that the prosecution failed with Locke, and as a result likely failed with all of their witnesses. In other words, to establish a systemic failure on the part of the prosecution in its handling of witnesses. To achieve this goal, Bernick focused his attention on Robert Locke using the phrase “buyer beware” when he was interviewed by the prosecution in preparation of the trial. The phrase concerned defendant Robert Bettachi’s opinion of the sale of contaminated land to the Parkers for their nursery. During the trial, Locke used the phrase “caveat emptor” (which is Latin for “buyer-beware”—the two meaning the same thing to a law student) and embellished his response with what sounded like reiteration of the Parkers’ testimony. Bernick tried to establish that the use of the phrase “caveat emptor” sent Marsden on a hunt through his emails, where he deleted certain emails in an effort to determine which correspondence he had with Locke needed to be divulged pursuant to Giglio.
However, other than this modicum of direct evidence, the defense could only muster circumstantial evidence at best, and insinuations at worst as to prosecutorial misconduct. Bernick spent thirty minutes examining the nature of the immunity agreement which Marsden offer Locke and elected to turn down. Marsden never admitted to any “nod and wink” agreement with Locke that he did not need to accept the immunity agreement because he would not be charged with conspiracy. The only evidence Bernick mustered was a four hour meeting between Marsden and Locke where there were no notes taken – a procedure consistent with prosecutorial pretrial practices.
Frongillo was more forceful in his argument. He implied that when Marsden heard “caveat emptor” the prosecution team went into a “search to save their star witness, a witness who spoke about ‘killing a coyote in Cambridge.’” As a result, emails were deleted and witnesses were found to corroborate Locke’s testimony. Frongillo closed in a frenzy, stating that there were “no notes about anything. Nothing about mushrooms. Not a damn thing.”
Assistant U.S. Attorney Timothy Cavan appeared to easily rehabilitate Marsden. Cavan established that the defense was misconstruing certain language in the depositions and emails. Cavan further focused on the fact that the prosecution made a mistake in not turning over the emails at an earlier date, but quickly remedied the problem. Cavan was effective, deliberate, and established that there was no evidence of any prosecutorial misconduct.
The defense, who had the burden of proof, closed the hearing first. Bernick started, stating that the prosecution’s treatment of Locke is a systemic problem that pervades the entire case. The argument that Bernick presented was that if Marsden treated Locke in this way, then it is likely he treated all of his witnesses this way. To bulwark his argument, Bernick stated that the government was using Andrew Schneider’s “The Air that Kills” as their bible; using politics and emotion to guide their case.
Bernick then presented three remedies he felt were available to Judge Molloy and succinctly addressed each:
(1) to allow Locke to take the stand and be cross-examined further, which Bernick deemed ludicrous,
(2) to strike Locke’s testimony, which Bernick claimed would be unsuccessful because “this bell is too big to be unrung,” and
(3) dismissal, which Bernick deemed the appropriate remedy.
Bernick closed by saying that both a motion to acquit (Rules of Criminal Procedure 29) and a brief to dismiss for prosecutorial misconduct will be filed with the court.
Frongillo closed next, and cited a series of 9th circuit cases which he deemed established that the misconduct displayed by the prosecution required dismissal. He further argued that he hopes that Attorney General Eric Holder takes a look at this case and “fixes the prosecutorial system.”
Cavan responded to these contentions by stating that the jury should be allowed to consider these issues. “Your honor, this is about the process, and ensuring that the judicial process is not short circuited,” Cavan stated. He concluded by making it clear that the prosecution played by the rules, and that “short circuiting the judicial process is not the answer to this problem.”
Despite the lack of evidence and Cavan’s sound argument, Judge Molloy appeared to agree with the defense. The day ended with Molloy stating he was concerned with what he deemed was the “underlying problem here, which is about the process being tainted.” He then proceeded to call Robert Locke a “liar.”
Molloy concluded his comments by stating the following, “The way of business here appears problematic to me [note: a phrase used by Bernick in his closing]. I am reminded of an instance where as a young attorney I saw federal agents absolutely destroy a home during a search. It was not right. Somebody in the Department of Justice needs to have the courage to do what is right.”To which Molloy rose and left.
–Christopher Orman (posted 6:38 pm)