HOW PROSECUTORS CONTROL & DIRECT AMERICAN FEDERAL GRAND JURY INDICTMENT DELIBERATIONS

In a well-known yet hidden truth of federal criminal law, federal grand jury's don't indict people - federal prosecutors do. It's the United State's prosecutors aided by government agents from the FBI, the DEA and fraud inspectors from a variety of Government agencies who bring cases to American grand jurors and direct the deliberations until the desired indictment is delivered. 

Grand Jury with victorious Prosecutor
after delivering Indictment

The grand jury hears only the evidence deemed worthy by the government. In practical terms this means that unless the prosecutor does not want an indictment, little or no evidence that could help the defendant will ever be given to members of the grand jury. It's an unfair process, but of course it's meant to be. 

The objective of an effective prosecutor is first to mold the charging document or indictment. During that process the prosecutor seeks to iron out or at least gain useful knowledge of possible defenses to a potential criminal case. It's not unusual for the grand jury to hear snippets of evidence of uncharged misconduct over a long course of time, even for weeks or months, especially in complex federal conspiracy and trafficking cases or complicated white collar fraud cases, until the prosecutor is satisfied that the case if contested by the defense can still be won at federal trial or better, that the defendant in the case can be forced to plead guilty. It's rare that the grand jury members will have the presence of mind, will power or strength of character to stop an inappropriate indictment from being issued by an ardent prosecutor. 

After all, the members of an American grand jury are relying on the prosecutor to not only give them the appropriate federal laws allegedly being violated, but also to provide the facts necessary to support a conviction under those laws. Nor is it likely to be considered prosecutorial misconduct for the federal prosecutor to unduly influence the grand jury's decision-making process as it's built within an often unfair federal criminal justice system that has a very high rate of success in forcing guilty pleas since many defendants come to believe that the criminal justice system is rigged in the government's favor.

In the federal prosecutions there's incentive to overcharge defendants at the grand jury level in order to gain leverage over defendants and to force a guilty plea with co-operation to indict other defendants. In fact in the Middle District of Florida in Tampa a defendant may receive a target letter, that advises the defendant that a grand jury has been convened to look at criminal conduct with the implicit threat that failure to respond, retain the services of a federal defense attorney and co-operate may result in a federal indictment. As a practical matter the prosecutor has such control and direction of the federal grand jury that the threats must be taken seriously. After a federal indictment the defendant with help from a federal criminal defense attorney must make an important life-changing decision, whether to plead guilty or have a federal trial.

How Prosecutors Use & Abuse Federal Prisoners' Emails To Defense Lawyers

The New York Times recently reported that federal prosecutors are using federal inmate emails sent to their defense lawyers as evidence of wrongdoing. The evidence is being used as additional leverage to force pleas of guilty for those not yet convicted and during sentencing hearings for those already convicted. 

Although many jurisdictions are divided as to whether this evidence is permissible some federal judges are accepting the notion that defendants in custody waive any rights to private correspondence with their defense lawyers thru email.
In the Middle District of Florida in Tampa most federal prisoners are placed in the Pinellas County Jail in Clearwater while awaiting trial. But if convicted the defendants are hastily sent to Citrus County to await sentencing. Neither the Pinellas nor the Citrus jail offers email for defendants. 

Once federal defendants are transferred to a federal facility under Bureau of Prison guidelines then email is provided. Many defendants may be under the false impression that their email to their defense counsel is protected under attorney-client privilege.

All telephone calls to and from prisoners in Florida prisons are recorded. All traditional mail to and from prisoners is opened not only to stop contraband from entering the jail, but in an effort to make certain that the mail is not used to further any criminal conspiracy or enterprise. Telephone calls and traditional mail are often used as evidence in federal and Florida courts against prisoners. 

So how does a defense lawyer conduct a defense if his client in incarcerated in Florida? It doesn't matter whether the client facing a life sentence is charged with a federal conspiracy to traffic in cocaine with 10,000 pages of evidence or if the client is facing a simple battery misdemeanor charge with two pages of evidence. The evidence will be discussed in the following manner:

Upon entry to the Pinellas County Jail your defense attorney is given access to a small, gray, grim room which is presumably free from eavesdropping or other intrusion. The lawyer and his client work from two metal chairs and an old folding game table. Alleged first degree Murder charge? Game table. This face to face meeting place is the only method of safe communication provided for any alleged offense in Pinellas County. 

Yet much of the correspondence and communication in America today is conducted via email. All prisoners in both federal and Florida prisons should be given unrestricted email access if not to their families and loved ones, at least to their defense lawyers. It would even free up the wait time for the meeting rooms which are often filled.

The most important aspect of the lawyer-client privilege is the ability to communicate. Without a free exchange of ideas between defense counsel and client the lawyer-client privilege is meaningless. Lawyers for prisoners should be able to routinely send and receive emails from those they represent without fear that the emails may compromise clients in the future.

NEW BILL WOULD STOP FEDERAL PROSECUTORIAL MISCONDUCT BY PROVIDING FOR OPEN-FILE DISCOVERY

Despite the Department of Justice's new 'open discovery rules' and 'ethics re Brady seminars' many federal prosecutors continue to give inadequate discovery in violation of the prevailing Brady rules. In an attempt to address the 'epidemic of Brady violations' a new bill proposed in Congress by the Center for Prosecutorial Integrity would add muscle to the Brady rules by "...requiring prosecutors to implement an Open-File policy" for the following evidence:

Prosecutor, give Mason the damn discovery!

1. All witness statements would be subject to discovery.
2. All forensic test results would be made available to the defense.
3. All other evidence gathered by the prosecution that exists within the case file of the prosecutor.

It's clear that Brady violations are the leading type of prosecutorial misconduct perpetrated by the Government while prosecuting federal criminal cases.

Clearly prosecutors have an obligation to do their best to seek justice rather than merely to seek convictions yet too often prosecutors have tunnel vision that rejects evidence of innocence. Yet too often prosecutors view any evidence inconsistent with guilt as unreliable. But this is not a game. This is the lives, reputations and future of those who face the entire power of the federal government. Shouldn't they have access to all of the evidence, not just the evidence which prosecutors say is Brady material? As long as prosecutors decide which evidence is Brady material, there'll be incentive for prosecutors to obscure the actual value of evidence for the defense.  

For fair and just outcomes in federal criminal cases in the Middle District of Florida in Tampa and thru out the United States it's essential that all evidence must be given to defense lawyers. Why would prosecutors want anything less if they are interested in providing justice instead of mere convictions? 

The only way to insure that all evidence is made available to the defense is to have a complete Open-file system as the proposed bill would mandate. Then everything within the prosecutor's possession goes straight to the defense. Then let an American jury find a just verdict having seen all the evidence the lawyers provide. 

HOW TUNNEL VISION PERSUADES PROSECUTORS TO REJECT EVIDENCE OF INNOCENCE IN CRIMINAL CASES

Under American law prosecutors have a unique responsibility to not only enforce the law but to ensure that justice is done. Yet time after time even when confronted with exonerating DNA evidence overzealous  prosecutors fight post conviction relief. 

In a book by two psychologists called Mistakes Were Made (but not by me!): why we justify foolish beliefs, bad decisions and hurtful acts, the authors detail how and why prosecutors insist on guilt even when they find overwhelming evidence of innocence. Deceptive blinders, tunnel vision and self justification create a situation where a prosecutor believing himself to be good couldn't possibly be the kind of person who sends the wrong man to prison and ignores all evidence that contradicts that assessment. 

Law professors also delved into the problem in an essay called The Multiple Dimensions of Tunnel Vision in Criminal Cases noting that over 170 people convicted of heinous crimes have been proven innocent by DNA evidence since 1990, but that hundreds more have been exonerated over that time period with other evidence establishing that the criminal justice system fails to accurately determine guilt. Even in preliminary stages of criminal cases rather than merely accumulating only the evidence required to convict, prosecutors should also be looking at contradictory evidence of innocence. 

The American Bar Association sets forth the obligations for any prosecutor who learns of "new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted." The prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

The requirements for prosecutors are clear. Seek justice promptly especially if the initial conviction was in error. The solution to the psychological problem of prosecutor's tunnel vision and of not wanting to admit mistakes is to punish the overzealous prosecutors. Those prosecutors who fail in their obligations to seek justice promptly should not be fired, but should also be stripped of their law licenses.

Too often prosecutors acting in bad faith betray the criminal justice system by misusing their authority by bullying innocent defendants into changing pleas with threats and additional criminal charges or by ignoring important evidence of innocence for those already falsely convicted. 

MUST LAW ENFORCEMENT OFFICERS ALWAYS TELL THE TRUTH WHEN QUESTIONING SUSPECTS ABOUT A CRIME

Your favorite Clearwater Criminal Defense Attorney was recently asked an interesting question about the strategy and tactics of police interrogations. Do law enforcement officers have any duty to be truthful while questioning suspects?

Here's the question I received:

My twenty year old son was arrested in Tampa Bay, Florida for being in Possession of a Sawed-off Shotgun. After being questioned for a number of hours, police told him that they had a video which showed him with the shotgun. My son admitted he'd had the sawed-off shotgun. Turns out the Police lied to him about the video. There was no video at all. Can my son's statement be thrown out because the Officer's lied to him?

Degas, Self Portrait

The police in Florida have no duty to be honest in telling someone suspected of a crime what the actual evidence against them is. In fact, police investigators are trained to deceive suspects as to the quantity and quality of evidence and Florida Courts would not view the dangling of a falsehood while fishing for the truth as police misconduct. 

However, there are other consideration which should be investigated that could help your son. First, since your son was in police custody, then he should have been given his Miranda warnings. Did he ask for a lawyer at any time during questioning? If so, then the questioning should have immediately ended.
Further, his treatment and the conditions he endured while in custody should be looked at. For example, in a federal drug case I once made the argument that Post Miranda statements from sixteen Defendants should be thrown out because of the way the Defendants were mistreated with no access to food, water, nor a toilet.
You're right to be very concerned about the charge of Possession of a Sawed-off Shotgun as under Florida law that charge carries a minimum mandatory term of prison. 

Beyond attacking the interrogation of your son, the firearm should be inspected by a Defense firearm expert. Florida does make some exceptions for sawed-off shotguns under that statute; for example, if it can be established that the firearm was an antique or that the firearm is an exception as classified under the Federal law, which Florida recognizes, then a Defense Motion to Dismiss the charge would be successful.

Here's the relevant Florida Statute:
790.221 Possession of short-barreled rifle, short-barreled shotgun, or machine gun; penalty.—

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.

(2) A person who violates this section commits a felony of the second degree.

(3) Firearms in violation hereof which are lawfully owned and possessed under provisions of federal law are excepted.

Finally, a few years ago I tried a similar case before a jury in Pinellas. The trial was necessary because Pinellas County prosecutors refused to treat my sixteen year old client as the child he was, insisting that he accept a minimum mandatory three year sentence. They did not care that the sentence would have ruined his life. He'd used the shotgun to break into a Doctor's car. During the Jury Trial I argued that since he did not use the firearm as a weapon, but as a tool, he was not guilty of Possession of the Sawed-off Shotgun. The Jury found him not guilty.

INNOCENT MAN SPENDS 28 YEARS IN PRISON FROM FLAWED FBI ANALYSIS MISTAKING DOG HAIR AS HUMAN

Clearwater Criminal Defense Lawyers are often astounded at the manufactured evidence that expert witnesses testify to while being cross-examined during trial which leads to needless convictions of people who are later proven innocent. Testimony from witnesses of agencies such as the FBI are given great weight by Jurors during trial and by Judges during sentencing.

Matisse, Self Portrait Jail Shirt, 1906

Yet forensic laboratory evidence from the FBI has been found to be tainted, unreliable and based on flawed forensic techniques in polygraph cases, fingerprint cases, DNA cases and handwriting cases. Often courts even in Florida will allow expert lab reports to be read to a jury without allowing cross examination of the expert who wrote the report. 


The Washington Post notes that American Courts are reviewing questions of innocence in over 21,000 cases of failed expert testimony and lab results just from the FBI's hair and fibers unit. The startling numbers have even more impact when you consider the actual lives destroyed. 
Santae Tribble spent 28 years of his life in prison for a murder he didn't commit. New DNA tests established that the 'expert' testimony and evidence from the FBI matching his hair to that of hair found at the murder seen was wrong. In fact the FBI examiner even failed to find that some of the hair examined belonged to a dog. 

The Judge signed a Certificate of Innocence stating that the Trial results must be vacated and the Post gives some insight into why:

A hair match also was critical evidence at his trial...Hair analysis was subjective and lacked scientific research into how often hairs of different people might appear to match, and the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate.

The FBI agent testified at trial that the hair from the stocking matched Tribble’s “in all microscopic characteristics.” In closing arguments, the federal prosecutor went further: “There is one chance, perhaps for all we know, in 10 million that it could [be] someone else’s hair.” 

Court ordered DNA testing by a private lab confirmed that none of the 13 hairs retrieved from the crime scene shared Tribble’s genetic profile.  

One came from a dog; facts over which the FBI-trained examiners disagreed or missed outright at the trial.

The exploding scandal in forensic laboratories undermines American Justice. But so does the method by which the lab results were used. As often happens in Criminal Trials, the Federal Prosecutor argued far beyond the actual evidence in the closing argument. Isn't this a clear example of prosecutorial misconduct?

Yet worse where is the voice of our United States Supreme Court on one of the most important issues of our time, that goes directly to America's standards of justice, due process and fairness - the convictions of those who are actually innocent. 
Here's Justice Scalia taking the other Justices to task for taking a Defendant's actual innocence into account in Murder Cases:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.   

Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

A Clearwater Criminal Attorney would remind Justice Scalia over a bottle or two of wine that when it comes to 'actual innocence' in criminal cases, the Supreme Court's first duty is finding Justice. 

PROSECUTOR'S LAPSED LAW LICENSE CAUSES HAVOC IN FLORIDA MURDER TRIAL

Even Clearwater Defense Attorneys quake at the thought of law licensing problems emerging during an important murder trial. 

Any  Licensed Prosecutors ?

After picking the jury and giving the Opening Statement which provides the jury with the general facts of a case without arguments, a reporter for the Miami Herald asked the Florida Prosector trying the significant Miami murder trial if he knew that his law license was revoked. You have to admire the reporter's drive to get a great story by waiting to ask until after the case began.

Turns out the Florida Bar revoked the prosecutor's license to practice law in Florida because he'd failed to accurately establish that he'd taken his required Continuing Legal Education Classes. Maybe there should be a class on how to take the classes and how to make sure that the Florida Bar has given appropriate credits.

The presiding Florida Circuit Judge refused a defense Motion for a Mistrial based on prosecutorial misconduct in allowing the prosecutor with a revoked license to make opening statements. The Judge determined that the problem was a clerical mistake which would not prejudice the Defense, which is a reasonable ruling.
Anyway, as it proceeds that prosecutor is off the case. If it'd been the defense lawyer whose license was revoked a convicted Defendant would still need to make a showing that his attorney was not effective as counsel, being unlicensed could be helpful but not necessarily definitive in making that argument.
Before the emails come flooding into my office with the heated question, Did that prosecutor break the law in Florida for practicing law without a license? 
Assuming the trial judge was factually correct that it was merely a clerical error and that the prosecutor had no knowledge of the suspension, then he didn't break the law so put up the pitchforks... But if he knew of the suspension and ignored it with the Florida Bar having sent him notice of the suspension, then he better call a Clearwater Criminal Lawyer to begin his defense.

FLORIDA FEDERAL PROSECUTORS DROP WAIVER OF COLLATERAL ATTACK & POST CONVICTION PROCESS IN TAMPA BAY PLEA AGREEMENTS

Federal plea agreements in the Middle District of Florida have long contained language which restricts a Defendant's rights to appeal his sentence often rankling Clearwater Federal Defense Lawyers. Recently this law blog noted that the Florida Bar Association was in the process of finding plea waivers restricting collateral attack and post-conviction process could amount to unethical prosecutorial misconduct.

The United States Attorney's Office has sent a letter acknowledging that the plea agreement wording must be changed to the evolving view of the Florida Bar as to what constitutes unethical conduct for Federal Prosecutors and Defense Lawyers. Though you'd think that the very fact each plea agreement contains the same boiler plate language would be sufficient to establish the unfair advantage Federal Prosecutors possess in the Federal Criminal Justice System in the Middle District of Florida.  
The previous plea agreement wording with the new wording for future Plea Agreements in Federal Court in the Middle District of Florida are as follows:

Maoshu Appreciate Lotus

Defendant's Waiver of Right to Appeal and Right to Collaterally Challenge the Sentence.The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a). 

We are eliminating the references to collateral challenges to the sentence. The new standard appellate waiver will read as follows: 

Defendant's Waiver of Right to Appeal the Sentence.  The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).

 As you can see the language the U.S. Attorney's office will shove down the throats of federal defendants still effectively eliminates most possible appeals. Until the Florida Bar takes a long look at the underlying notion of a lack of fairness from disproportionate bargaining power between parties in federal plea agreement negotiations, the rule of thumb from your favorite Clearwater Criminal Defense Attorney is for Federal Defendants to understand  before a change of plea to guilty that successful appeals from pleas in federal court are rare.

IS IT ETHICAL FOR A PROSECUTOR TO MAKE THREATS & ADD CRIMINAL CHARGES IN TAMPA BAY, FLORIDA?

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.