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Wednesday, March 18, 2009

Troubling Prosecutorial Misconduct Shows it Hand in South Florida

“This verdict restored my faith in our justice system,” said David O. Markus, one of Shaygan’s attorneys. “It shows win-at-all costs takes a back seat to justice.”

Here in South Florida, start a life as a legal blawger, and every other case is the feds or state reaching into the private conversations of lawyers with their clients. Or so it seems.

Last month this led to the now famous eavesdropping case in Broward with Judge Lebow throwing the Broward County State Attorney off the case. Prosecutors should have known better than to listen to the conversations of lawyers and their clients. They should have had the facts to convict before the indictment, not after the defendants began meeting with their lawyers. I don't care what the hell the jail says about warning you the conversations are taped. There is no rule which requires you to listen when you knew or should have known better.

Then trial attorney David O, Marcus, who publishes one of the top three Dade law blogs, the Justice Building Blog, undercovered similar activity while trying the case of Dr. Ali Shaygan, acquitted last week of medicaid fraud. The 'other' blogger in Miami, South Florida Lawyer, who rides a White Horse and wears a mask, and carries silver bullets, writes today that U.S. District Judge Alan S. Gold, held two days of hearings this week on the matter. Judge Gold said there were "flagrant violations" of basic rules by prosecutors and indicated he would likely order the U.S. government to pay the defense lawyers thousands of dollars in fees and costs.

"It's more than just mistakes. Important safeguards were not met," Gold said. "It doesn't seem like any facts were verified." U.S. Attorney R. Alexander Acosta on Wednesday called the situation "regrettable" and said the allegations have been referred to the U.S. Justice Department for possible disciplinary action. Sad that is necessary because it was unnecessary. What were they trying to win, a ticket to their disbarment?

Dr. Ali Shaygan was accused in a 141-count indictment of writing illegal prescriptions including one that led to a patient's death from a methadone overdose. But you don't sell out a legal career for one victory or one case. And that message should go to the female prosecutor in Broward who won a critical continuance in a drug trafficking case when she foolishly misled a circuit court jurist that her star witness was being detained in a Slovakian jail. Yeah, the jail was called a hotel, and he was having a fine old time while not appearing for court.

Shaygan attorney David O. Markus only found out by chance during questioning of a witness that his prior telephone conversation with that witness had been recorded. It later turned out that prosecutors authorized the recording. What were they thinking? If that was not enough, one of those witnesses, arguably agents of the government, may have solicited Markus for a bribe. Well, more than 'may have' since one of the recordings has Mr. Markus defiantly stating: "I am not paying any money for anything." To boot, the government failed to disclose the bias of these witnesses, since they were paid informants. As a defense lawyer, you say, Wow!

It is hard to write too much about the cases you handle without being self aggrandizing or inadvertently revealing a client communication you have to shut up about. Thus, Markus, blogger though he is, may be limited in what he can say. But the case is monumental. So it falls upon us, as fellow law bloggers, to speak up for him. What we have to say has to be necessarily critical of the United States Attorney's office. It leaves you dumbfounded.

Few government agencies have at their disposal the power, the reach, the capacity, the legal talent and skills as that of a US attorney. Few offices would ever need to compromise a case or claim by misguided directives. You have at your disposal the FBI, the DEA, the Justice Department, local law enforcement teams, multi jurisdictional task forces, Homeland Security, ICE, and legal rules which favor the government and limit the defendant, from grand juries to diminished discovery. You have time and money and so much more on your side already, why would you ever sell out to win a single case. Why?

Is winning so important? Sadly, we know the answer to that question, and it explains why United States taxpayers are probably now going to pay the law firm of David O. Markus hundreds of thousands of dollars and why some of the government's prosecutors may wind up getting prosecuted or disciplined. Below, links worth linking to:

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