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.