Daily Archives: December 5, 2011

Conspiracies, Perjury And Misconduct

That’s what a judge in California found had been going on in the United States Attorney’s office in the matter of US v. Aguilar-Noriega, et al.  Sort of, anyway.

Read about it here.

The defendants had been found guilty after a long and hard fought trial, but the federal prosecutors had engaged in a lot of misconduct to get there, including perjury at the Grand Jury stage (The decision doesn’t come right out and say “perjury”, but that’s what it was.  The less accusatory terms “false” and “misleading” are used.) and then a lot of obstruction and concealing of the evidence of perjury so that the defendants’ lawyers wouldn’t find out about it.

Anyway, the judge:  a) vacates the convictions; and b) dismisses the indictment(s).  The first is a safe ruling.  The second is why there is a 41 page opinion that goes on and on in great detail about just what happened and why these prosecutors were so bad.

I’m nowhere near as excited about this as Scott Greenfield is.  Although it’s gratifying to see a judge actually do something corrective – anything, really – close to being proportionate to the harm done by prosecutors perjuring their way to a conviction, the fact is that the decision is weak, not very well written or reasoned, and even apologetic in parts.

If the government appeals there’s a very good chance it will be reversed, if not by the 9th circuit, then by the SCOTUS.  And the reason for this is that criminal indictments are virtually sacrosanct in federal practice and are never to be dismissed, unlike complaints in civil matters which are routinely dismissed, even though indictments in criminal cases and complaints in civil cases are essentially the same thing.

The government is a grossly favored litigant.  That is the nub of the problem, and the order in the case sub judice does not deviate from that so much as reflect it, even as it dismisses an indictment in the most fearful and defensive manner that could be done under the circumstances.

There is a parade of Supreme Court opinions making it virtually impossible to dismiss an indictment in federal courts, at least without openly calling the prosecuting attorneys criminals who suborned perjury, and the decision doesn’t do that.  Bank of Nova Scotia is feebly distinguished.  US v. Williams is treated in a footnote.

The court could have said “perjury” and “conspiracy” – the facts recited certainly support such language – but it didn’t.  And it didn’t name the prosecutors.  It leaves enough room for the government to successfully appeal, and the ultimate outcome here will be determined more by the government’s decision to do that, or not, than by anything else.

And by the way, even if the court had said “conspiracy” and “perjury”, the SCOTUS has never ruled that you can dismiss an indictment grounded in perjury and a conspiracy to commit perjury by the government anyway.  It’s a big open question, and we all wring our hands over it because it’s so, so difficult to figure out what to do when the government does such things.

On the other hand, when we’re thinking about how to compensate some poor schmuck who was the victim of such government conduct, we have no trouble being stingy, and lots of times we just deny compensation altogether because, you know, that could get out of hand.

Government sponsored perjury will never get out of hand, you see, because the government will police itself.

This is where we’re at, folks.  No use denying it.


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