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September 2, 2010 |
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| October 19, 2009 |
By: John Pacenti |
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.S. District Judge Alan S. Gold isn’t leaving it up to the Justice Department alone to discipline the prosecutors who secretly taped a defense attorney and his investigator.
The Miami judge forwarded his sanctions order to the bar associations where the three federal prosecutors are licensed and made the letters part of the public record last week. Trial prosecutors Sean Cronin and Andrea Hoffman and their former supervisor, Karen Gilbert, were blamed for mishandling the drug case against Miami Beach physician Ali Shaygan, who was acquitted in March of 141 counts of writing illegal prescriptions to patients.
The prosecutorial misconduct occurred before trial and came out during testimony. It was revealed that the prosecutors authorized a phone wiretap between a witness and Shaygan’s lead trial attorney, David O. Markus. A phone call to a defense investigator also was taped.
Gold was not amused. He publicly reprimanded the Miami U.S. attorney’s office and the prosecutors and ordered the government to foot the bill for Shaygan’s costs — $601,000.
Then-Miami U.S. Attorney Alex Acosta apologized, saying office policy called for his tacit approval of any invasion of a defendant’s counsel.
The Justice Department’s Office of Professional Responsibility is investigating the misconduct. The department also authorized an appeal of Gold’s sanctions. Cronin, in his appellate brief, said the judge was out to ruin his reputation.
Interim U.S. Attorney Jeffrey Sloman’s only public comments on the Shaygan matter were to the Florida Judicial Nominating Commission in July when he interviewed for the full-time position he currently holds. Sloman said the Shaygan case and Gold’s subsequent order had jarred his office.
“It’s been tough, tough on our prosecutors,” he said. “When their integrity is attacked, it hurts a lot.”
Meanwhile, the bar associations in the three states where the prosecutors are licensed have had Gold’s order for months.
The Florida Bar has started an investigation of Gilbert.
It appears she is the only one who has suffered any real consequences so far. She requested reassignment from her post as narcotics section chief and is now a line prosecutor in the public integrity department.
Cronin has been temporarily assigned to Washington to work on terrorism cases. Hoffman is ubiquitous in Miami trials, still prosecuting drug cases and getting in trouble since the Shaygan trial. U.S. Magistrate Judge Barry Garber threatened to sanction Hoffman in August after she skipped a plea hearing but backed down after hearing from her supervisors.
While awaiting a verdict last week, Hoffman was asked where she was licensed. She had a colleague slam the door on the reporter.
Federal prosecutors can hold licenses outside the states where they are assigned, which makes it difficult to determine where they are licensed.
There are bar groups in 50 states and the District of Columbia, and they set their own disclosure rules, especially about ethics investigations. Some bar directories are paid services or open only to members.
Alicia Valle, spokeswoman for the Miami U.S. attorney’s office, said law license information is not kept in the Justice Department’s personnel file, and “this data is not part of the CFR [Code of Federal Regulations] description of what is considered public information.”
Defendants may be out of luck if they want to determine where a federal prosecutor is licensed or check discipline records.
“That is just bizarre,” said Miami appellate attorney Richard B. Rosenthal, a solo practitioner. “I understand the need to protect prosecutors’ personal information, such as addresses and family members, but not what state they are licensed in. The public has a legitimate right to know.”
Miami criminal defense attorney Neal Sonnett said keeping the licensing information from the public is “problematic.”
“The fact of the matter is that there are notable cases of lawyers who have practiced in courts around the county, and it was later discovered that they had never been admitted to the bar,” he said.
Lawyers are licensed and held to strict rules of ethics to protect the public, Rosenthal said. Without disclosure, he said, “The consumer protection role is being undermined.”
Gold wrote the prosecutors’ bars in April. He issued an order Wednesday noting the letters were inadvertently omitted from the record and attached letters to Massachusetts officials about Cronin and Pennsylvania authorities about Hoffman. Gilbert is licensed in Florida, which posts its lawyer directory as a public record.
It took the disclosure of Gold’s letter to nail down Hoffman’s license in Pennsylvania, which maintains a paid directory. The Pennsylvania Bar Association said it does not comment on ongoing investigations.
The Massachusetts Board of Bar Overseers did not respond to inquiries about Cronin.
Sonnett said the Shaygan case will be a good test of whether Justice’s Office of Professional Responsibility’s culture of covering up prosecutorial misconduct under the Bush administration has changed under the Obama administration.
“The OPR does not have historically a great reputation for following through on investigations and for transparency,” he said. “I have talked to a lot of lawyers around the country who have filed complaints against a prosecutor, and it got whitewashed or it never got investigated or they could never find out what happened to it.”
The OPR can take months if not years to report results. And bar investigations aren’t known for their speed either.
Gold has said he will have the final word.
In his April order, he wrote, “I reserve to impose any further sanctions and/or disciplinary measures as may be necessary against AUSA Cronin and Hoffman after reviewing the results of the Justice Department’s investigation.”
John Pacenti can be reached at jpacenti@alm.com or at (305) 347-6638.
Alan Gold photo by A.M. Holt
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