Thursday, September 01, 2011


Clearwater Criminal Defense Attorneys are often asked, when can it be established that prosecutors have acted in bad faith? You might think threats from the prosecutors would be sufficient.  You could think that making those threats real be the filing of additional charges could be enough, but this America and you'd be wrong. And worse this is Tampa Bay, Florida so you'd be doubly wrong.
Here is an example from a recent federal court case where the court clearly found bad faith on the part of prosecutors where a Defendant is prosecuted more harshly because of non-criminal events that occurred after the original indictment was filed against him.
In this case a Defendant was warned that if he filed a motion to suppress there'd be a 'seismic shift' in his prosecution. Meaning that all hell would break loose which it did when the government filed a superseding indictment which contained additional charged counts against the Defendant.
Well that's what the trial court thought. The appeals court made a vastly different decision noting that the Federal District Court denied due process to the prosecutors in not granting them notice nor an opportunity to explain their actions no matter how corrupt the prosecution

 The Drug Enforcement Administration had conducted an undercover investigation of Shaygan after one of his patients died from a lethal combination of prescription and illegal drugs. After Shaygan’s arrest, the government discovered additional evidence of violations of federal law, and Shaygan moved to suppress statements he had made to federal agents who, Shaygan contended, had violated his right to counsel.In response to that motion, Cronin warned Shaygan’s lead counsel of an impending “seismic shift” in the prosecution of Shaygan. Soon afterward, the government filed a superseding indictment with additional charges and supported those charges at trial with the testimony of several witnesses and documentary evidence.
Near the end of trial, the district court allowed a second cross-examination of two witnesses for the government after it came to light that those witnesses had cooperated in a collateral investigation about potential witness tampering by members of the defense team. The district court instructed the jury that the reopening of cross-examination was necessary to address misconduct by the government. In closing argument, Shaygan’s counsel compared that alleged misconduct to the Salem witch trials.
After the jury acquitted Shaygan of all charges, the district court held an inquiry about sanctions under the Hyde Amendment. The district court found that the prosecutors “acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed.” The district court awarded Shaygan attorney’s fees and costs, publicly reprimanded Cronin and Hoffman, and referred those attorneys to disciplinary authorities. On appeal, the United States, Cronin, and Hoffman contended that the district court abused its discretion and committed fundamental errors. The United States argued that the district court erroneously ruled that the superseding indictment was “brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” and that the district court erroneously concluded that an award of attorney’s fees and costs under the Hyde Amendment could be supported by discrete incidents of bad faith, such as discovery violations, without regard to the overall litigating position of the United States. Cronin and Hoffman argue that the district court violated their right to due process, under the Fifth Amendment, when it denied them notice and an opportunity to be heard before it entered public reprimands of them. The Eleventh Circuit agreed with these arguments, and held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and that the district court violated the constitutional right to due process of the two lead prosecutors, Cronin and Hoffman, when it denied them notice of any charges of misconduct and an opportunity to be heard.
The process of Federal Sentencing even when a Defendant pleads with a waiver of appeal for collateral attack of the prosecutor is deemed unethical by the Florida Bar, but for threats by prosecutors to be carried for the mere filing of an evidentiary motion to suppress goes much further. Even if somehow legal, isn't it unethical conduct? 
Leaving your Clearwater Criminal Lawyer with this sad insight about our Federal criminal justice system in Florida: even the threat of a 'seismic shift' combined with action on that threat by prosecutors leveling additional charges was not sufficient on it's face to bring the prosecutors to heal nor to establish Bad Faith prosecution.