No Comment — September 29, 2010, 12:53 pm

Misconduct at DOJ: Who Pays the Bill?

USA Today continues its study of abusive federal prosecutions, reporting on the efforts of victims to recover their legal costs by relying on the Hyde Amendment, which “was intended to deter misconduct and compensate people who are harmed when federal prosecutors cross the line.” It finds that through aggressive lawyering, the DOJ has effectively gutted the Hyde Amendment and frustrated its aim of ensuring that the government bears the economic burden when prosecutors misbehave.

Colonel Robert Morris, for example, was prosecuted for “conspiring to steal military supplies” on facts so absurd that the judge warned the prosecutors to drop the case. Although often enough juries convict in bogus cases, Morris was lucky: a jury acquitted him in 45 minutes. “By then, though, his career had derailed. His parents had mortgaged their home to help with $250,000 in legal bills. He had drained his own savings.” Henry Hyde’s amendment was intended to assure that people like Colonel Morris would get their costs back. But the Justice Department mobilized its battalions of attorneys to subvert the law and protect itself. It refused to pay a cent.

The courts, filled with Justice Department alumni, have lent the Department a helping hand in this process, imposing hurdles that can’t be found anywhere in the text of the Hyde Amendment. Typical is the Eleventh Circuit, which has held that only a plaintiff who can show the prosecutor’s “state of mind [was] affirmatively operating with furtive design or ill will” can obtain recovery. But since everything the prosecutor does is shielded by prosecutorial immunity, this burden is all but impossible to meet. Even in rare cases like Axion, discussed here, where the claimants had copious evidence of bad-faith and invidious if not racist motivation, the Eleventh Circuit found the burden was unmet. (In that case the evidence implicating the Department in unethical and abusive conduct was so strong and embarrassing that the Department was shamed into paying up anyway.)

The Justice Department’s successful subversion of the Hyde Amendment demonstrates its lack of accountability within the federal criminal justice system. One of the more interesting passages in the article is this:

Michael Zomber already had served his two-year sentence when prosecutors agreed to throw out his conviction stemming from a 2003 conspiracy indictment. There was just one catch: He had to give up his right to seek government repayment of his $1 million legal bills. Before agreeing to a dismissal, federal prosecutors used Zomber’s right to seek government repayment as a bargaining chip. A federal jury in Pennsylvania had convicted Zomber of conspiracy to commit mail and wire fraud for the sale of four antique Colt pistols to businessman Joseph Murphy. Prosecutors said the weapons were worth half of what Murphy paid for them, and that Zomber lied to increase the price. Zomber, now 60, spent almost two years in a federal prison camp before the U.S. Court of Appeals for the 3rd Circuit threw out his conviction. It found that the prosecutor, Robert Goldman, had failed to give Zomber’s defense the letters Murphy wrote to Microsoft Chairman Bill Gates offering to resell the pistols “at cost”—the same price Murphy paid. Goldman said he did nothing wrong and warned USA TODAY that he would have any article about Zomber’s case “reviewed by counsel for potential litigation.”

A federal prosecutor is threatening to sue USA Today for having the audacity to report about a case he mishandled—and in which, as usual, his victim was uncompensated and forced to serve jail time on a meritless claim. This sums up the Department’s current posture very ably: we make no mistakes, and if you suggest otherwise, we may have to sue you.

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