Dammed if You Don’t: Ninth Circuit Dismisses Criminal Case Due to Flagrant Prosecutorial Abuse

Assistant U.S. Attorney J. Greg Damm is the focus of a blistering condemnation by the trial and appellate courts of his alleged prosecutorial misconduct in a Las Vegas case. The case against five individuals, attorneys Daniel Chapman and Sean Flanagan, involved alleged securities trading violations. Damm is accused for failing to turn over 650 pages of critical evidence after telling the court that all evidence had been produced for the defense.

The Ninth Circuit found blatant prosecutorila misconduct by the Nevada U.S. Attorney’s Office. In a decision written by Judge Kim Wardlaw, the panel held “This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.”

What is striking is that, once again, the Justice Department’s Office of Professional Responsibility cleared the attorney of any intentional wrongdoing. OPR is widely viewed in the bar as a paper tiger, an office often accused of primarily used by the Justice Department to clear itself of charges of misconduct. Here, an independent judicial panel found such serious ethical breaches that they threw out criminal charges. Yet, the Justice Department appears to be sticking by the prosecutors.

As discussed in this column, deterrence of such prosecutorial abuse remains an exception.

For the opinion of the Ninth Circuit in U.S. v. Chapman, 2008 WL 1946744, click here

For the full story, click here.

4 thoughts on “Dammed if You Don’t: Ninth Circuit Dismisses Criminal Case Due to Flagrant Prosecutorial Abuse”

  1. Tough to get the government to rise to a higher standard when they hire from the Regent University School of Law.

  2. I believe that there is going to be enough interest and curiosity for to launch a basic cable station to cover the uncovering of the abuses of power during the Bush Administration. A sort of uniquely morbid curiosity.

    “Justice Gone Wild”

  3. rafflaw:

    Here’s the pertinent excerpt from the opinion supporting your position. The last line is the killer.

    “[F]or over two weeks of trial, the prosecutor consistently
    claimed that he had disclosed the required
    material to the defendants . . . . And I accepted that,
    I accepted [the AUSA’s] statement as an officer of
    the Court and overruled the objection on several
    occasions. . . . Only after I excoriated the Assistant
    U.S. Attorney in the strongest terms did he then offer
    an apology to the Court, not a heartfelt apology, but
    simply a response to me. And finally I said, be quiet
    and listen to me because he was just saying, yeah,
    I’m sorry, I’m sorry, I’m sorry, and not really meaning
    The prosecutor has a “sworn duty . . . to assure that the defendant
    has a fair and impartial trial,” and his “interest in a particular
    case is not necessarily to win, but to do justice.” N.
    Mariana Islands v. Bowie, 236 F.3d 1083, 1089 (9th Cir.
    4960 UNITED STATES v. CHAPMAN 2001).

    In this case, the district court was clearly troubled by the government’s conduct
    and its failure to own up to its actions. We are similarly troubled,
    both by the AUSA’s actions at trial and by the government’s
    lack of contrition on appeal. The government attorneys
    who appeared in the original AUSA’s stead on the critical day
    of the hearing on the motion to dismiss the indictment told the
    trial court that they “took this matter extremely seriously” and
    conceded that the government made a “very serious mistake
    in terms of [its] discovery obligations.” Before us, however,
    these same attorneys have attempted to minimize the extent of
    the prosecutorial misconduct, completely disregarding the
    AUSA’s repeated misrepresentations to the court and the failure
    to obtain and prepare many of the critical documents until
    after the trial was underway. Instead, they claim for the first
    time on appeal that none of the 650 pages were required disclosures
    under Brady/Giglio. When the district court first
    indicated that it was inclined to dismiss the indictment, it
    noted that it was “concerned [that] any lesser sanction [would
    be] like endorsing [the AUSA’s conduct].”

    The government’s tactics on appeal only reinforce our conclusion
    that it still has failed to grasp the severity of the prosecutorial
    misconduct involved here, as well as the importance of its
    constitutionally imposed discovery obligations.

  4. This is standard operating procedure for the Felons of George W. Bush’s Administration. The Justice Department and the Judges is what it is all about to them. They know that if they can control the investigations and as a last resort put partisan judges in place, the Bushites know that they can’t be stopped. Congress needs to impeach somebody and show the American Public that it has the stones to do its job.

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