Letter of Apology » Government Overreaching

Not Guilty! Nurse Anne Mitchell Acquitted By West Texas Jury In One Hour

Solomon Wisenberg — Fri, 12 Feb 2010 04:46:19 +0000

The NYTimes has the story here. Justice was done, unsurprisingly, by the jury. But the prosecution of Mitchell by County Attorney Scott Tidwell was: a disgrace, a gross abuse of prosecutorial power, and a black mark on Texas criminal jurisprudence. I will have more to say about this in a later post. For now, congratulations to Nurse Mitchell and her legal defense team.

More Outrage In Texas: Day Two Of Nurse Anne Mitchell’s Trial

Solomon Wisenberg — Wed, 10 Feb 2010 23:26:42 +0000

Beau Berman of CBS7News in West Texas reports here on the day two (yesterday) testimony in Nurse Anne Mitchell’s Texas criminal trial for misuse of official information. This is a truly disgraceful prosecution. The county attorney should have declined to bring it and the court should never have allowed it to get to a jury.

Outrage In Texas

Solomon Wisenberg — Sun, 07 Feb 2010 17:25:48 +0000

The New York Times reports here on the abusive Texas state criminal prosecution of nurse Anne Mitchell for doing the right thing. Mitchell properly and lawfully reported a doctor, who had privileges at the hospital where she worked, to the Texas Medical Board. When the Board informed the doctor, he promptly told his friend, the country sheriff, who helped to engineer Mitchell’s felony prosecution. You might think that somebody with a law license, say the county attorney or D.A., would step in and prevent such nonsense. You would be wrong.

Breaking News: Judge Urbina Dismisses Blackwater Indictment With Prejudice!

Solomon Wisenberg — Thu, 31 Dec 2009 21:45:22 +0000

Judge Ricardo Urbina today dismissed all charges against the five Blackwater defendants with prejudice. Here is the opinion. The dismissal was based on the Government’s multiple violations of Kastigar v. United States through its improper use of compelled statements and admissions (under Garrity v. New Jersey) made by the defendants to State Department investigators.

It Doesn’t End with Stevens, Kuehne, and Broadcom

Solomon Wisenberg — Fri, 25 Dec 2009 15:57:54 +0000

Lest you think that federal prosecutorial overreaching is confined to a few isolated cases, we hereby offer a story from R. Robin McDonald of the Fulton County Daily Report, carried via Law.com, about the government’s vendetta against Columbus, Georgia criminal defense attorney J. Mark Shelnutt. Shelnutt was prosecuted by the Southern District of Georgia on money laundering and drug conspiracy charges, but was acquitted on all counts. U.S. District Judge Clay D. Land has now blasted the U.S. Attorneys’ Offices in the Southern and Middle Districts of Georgia for their handling of the case. Land accused the offices of working in tandem to offer sweetheart deals to big-time drug dealers in an effort to bring down Shelnutt. Land refused to accept the stipulated drug quantity for one such drug dealer, Shawn Bunkley. Hat tip to Douglas Berman’s Sentencing Law and Policy Blog for bringing this to our attention.

Here also is Judge Land’s written order in U.S. v. Bunkley, which is well worth reading. This is a relatively rare example of a federal judge stepping in and challenging the plea bargaining power of the government through rejection of a stipulated drug quantity. The Order is interesting for the light it sheds on the Shelnutt case and for the methodology resorted to by Judge Land to impose a Booker-based upward variance in the face of Guidelines Section 1B1.8.

Judge Cormac Carney: Words To Remember

Solomon Wisenberg — Tue, 22 Dec 2009 21:38:03 +0000

Here is the transcript of the hearing in which Judge Cormac Carney granted Defendant’s Motion to Dismiss in U.S. v. William Ruehle. Ruehle was Broadcom’s former CFO. The dismissal was based on prosecutorial misconduct (primarily witness intimidation by AUSA Andrew Stolper) and insufficient evidence. Carney also dismissed the Indictment against Broadcom’s co-founder and former CEO Henry Nicholas, who had not yet gone to trial. The Nicholas dismissal was based solely on prosecutorial misconduct involving witness intimidation. Carney had previously thrown out the guilty plea of Broadcom co-founder Henry Samueli and dismissed the felony information to which Samueli pled guilty.

There were stirring and memorable words spoken at the hearing, and the transcript is well worth reading in its entirety. Here is a portion of Judge Carney’s closing remarks:

NOW, I’M SURE THERE ARE GOING TO BE MANY PEOPLE WHO ARE GOING TO BE CRITICAL OF MY DECISION IN THIS CASE AND ARGUE THAT I’M BEING TOO HARD ON THE GOVERNMENT. I STRONGLY DISAGREE. I HAVE A SOLEMN OBLIGATION TO HOLD THE GOVERNMENT TO THE CONSTITUTION. I’M DOING NOTHING MORE AND NOTHING LESS. AND I ASK MY CRITICS TO PUT THEMSELVES IN THE SHOES OF THE ACCUSED.

YOU ARE CHARGED WITH SERIOUS CRIMES AND, IF CONVICTED ON THEM, YOU WILL SPEND THE REST OF YOUR LIFE IN PRISON. YOU ONLY HAVE THREE WITNESSES TO PROVE YOUR INNOCENCE AND GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED EACH ONE OF THEM. IS THAT FAIR? IS THAT JUSTICE? I SAY ABSOLUTELY NOT.

Broadcom Dismissal Order

Solomon Wisenberg — Sun, 20 Dec 2009 00:12:01 +0000

Here is Judge Cormac Carney’s Dismissal Order in U.S. v. William J. Ruehle and U.S. v. Henry T. Nicholas. Most of the newspaper stories on the Broadcom debacle failed to note that Judge Carney dimissed the case against Ruehle for insufficiency of the evidence as well as prosecutorial misconduct. Ruehle’s Rule 29 Motion was granted after jeopardy attached, but before the jury began deliberating. Therefore, the government cannot appeal, and Ruehle cannot be re-tried. With respect to Nicholas, he wasn’t even on trial yet at the time of Carney’s order dismissing the Indictment with prejudice. The government can therefore appeal the dismissal in Nicholas’s case.

More On Broadcom Dismissals

Solomon Wisenberg — Wed, 16 Dec 2009 20:40:05 +0000

Here is the LATimes’ take on Judge Carney’s dismissal of criminal charges against former Broadcom execs William Ruehle and Henry T. Nicholas III, due to prosecutorial misconduct. It is safe to assume that the government will be appealing at least some of Carney’s rulings.

Judge Carney Throws Out Entire Broadcom Criminal Case

Solomon Wisenberg — Tue, 15 Dec 2009 20:00:00 +0000

Judge Cormac Carney has just dismissed the criminal stock option backdating cases, against former Broadcom CFO William Ruehle and former CEO Henry T. Nicholas III, based on government misconduct. The Orange County Register story is here. Nicholas had not yet gone to trial. In Ruehle’s case, the prosecution and defense had closed, and jury arguments were set for Thursday. Needless to say, dismissals based on prosecutorial misconduct are exceedingly rare. AUSA Andrew Stolper was at the center of the misconduct allegations and findings.

Sporkin Report Details Missing Records Related To World Bank Arrests

Solomon Wisenberg — Tue, 08 Dec 2009 15:59:57 +0000

Ian Urbina of the NYTimes has this excellent and sobering story on a recent District of Columbia internal investigation concerning the DC Police Department’s mass illegal arrests of protesters and innocent bystanders during the 2002 IMF/World Bank Meetings. The investigation, into missing records, was conducted by former federal judge Stanley Sporkin. Sporkin’s investigative report calls for further inquiry and suggests that pertinent documents were intentionally destroyed by city officials. The Times story also discusses the city’s problems litigating the case in front of U.S. District Judge Emmet G. Sullivan, who threatened the DC AG’s Office with sanctions before the case was settled. Particularly disturbing is this passage from Urbina’s article:

“In November, the city agreed to pay $450,000 to eight war protesters to settle a civil lawsuit in which they accused F.B.I. agents of detaining them in a Washington parking garage and interrogating them on videotape about their political and religious beliefs.

For years, the city police and the F.B.I. said that the interrogation had never happened and that they had no records of such an incident. The police also said no F.B.I. agents had been present when officers arrested the protesters for trespassing.

But as lawyers for the protesters were preparing for the trial, which was scheduled to begin in federal court Nov. 30, they unearthed police logs that confirmed the role of a secret F.B.I. intelligence unit in the incident.” (Emphasis added).

There they go again. This is unfortunately part of a longstanding pattern by elements within FBI headquarters of stonewalling and/or making misleading statements concerning the existence vel non of records sought by citizens and litigants.

I’ve said it before and I’ll say it again, the FBI street agent is, generally speaking, the crown jewel of federal law enforcement. He/she is often ill-served, however, by certain rogue elements within headquarters leadership.

The illegal mass arrests occurred on former Police Chief Charles H. Ramsey’s watch.