Will prosecutors ever be held accountable for their actions?

When a federal judge in California blew away charges of fraud and conspiracy in a controversial stock-option backdating case in December, observers were stunned.

Prosecutors had claimed that Henry T. Nicholas III and William Ruehle, the high-profile co-founder and former CFO, respectively, of Broadcom Corp., concealed millions by illegally altering the stock options awarded to employees of the Irvine, Calif.-based technology firm.

But U.S. District Judge Cormac J. Carney instead found that prosecutors had tried to prevent three key witnesses from testifying, improperly contacted attorneys for defense witnesses and leaked grand jury information.
It isn’t just the California backdating cases that have sparked courts to criticize prosecutors for questionable tactics. Recent prosecutions involving tax evasion, public corruption and terrorism have pushed judges beyond irritation into seething anger.

In cases throughout the country, including the high-profile pursuit of former Sen. Ted Stevens of Alaska, judges have reprimanded prosecutors for deliberately failing to produce potentially exculpatory information. In rulings like those for Broadcom and Brocade, prosecutors have been publicly slammed for manipulating the outcome.

But in United States v. Ruehle, Judge Carney found plenty of prosecutorial misconduct to complain about. The government, he said, “intimidated and improperly in fluenced” three witnesses critical to Ruehle’s defense.

One witness, who had left Broadcom, lost her new job after government investigators paid a visit to the company’s general counsel. Thus intimidated, she was told she would have to plead guilty to a felony to make her testimony “more convincing to a jury.” Another witness was threatened with prosecution if he stuck with earlier, truthful statements made to the SEC. And a third, the judge said, was forced to plead guilty to a crime he didn’t commit, in an effort to discredit any testimony that might benefit the defense.

The judge was so infuriated by the government’s witness intimidation that he dismissed all charges against them, as well as the stock-related counts against Ruehle and Nicholas. But for Nicholas, a flamboyant billionaire, he went even further.

Nicholas had been facing another spectacular set of charges that accused him of using and distributing a wide range of recreational drugs—including cocaine and Valium—and even threatening to kill anyone who talked about it. The second case was the subject of newspaper and magazine stories, including a Vanity Fair article, “Dr. Nicholas and Mr. Hyde: Sex, Lies and Underground Lairs,” based on allegations that Nicholas kept a specially constructed tunnel under his home to entertain himself and guests with prostitutes.

Citing a prosecution threat to subpoena Nicholas’ 13-year-old son to testify against his father, Carney gave the government three weeks to show cause why he shouldn’t drop the Nicholas drug case. On Jan. 7, the government dropped the drug charges


Link: http://www.abajournal.com/magazine/article/aggressive_justice