I write and think a lot about how federal criminal cases, and all criminal matters for that matter, intersect with the technological explosions we’ve seen in our lifetime. For example, in earlier posts like this one I’ve written about how courts are grappling with how to apply the principles from the 18th Century enshrined in our Fourth Amendment (no search and seizure unless based on probable cause and a warrant from a Judge) with the 21st century fact that cell phones can be searched and followed from just about anywhere. A few days ago, we heard about another instance where the modern world of the internet intersected with a federal criminal case, resulting in the dismissal of all charges when the Judge concluded that prosecutors violated the Constitution by anonymously posting about the case on a newspaper’s web site.
The basic story goes like this. In the havoc following Hurricane Katrina, there were reports that police officers shot victims of that natural disaster. There was an internal investigation. Cops were interviewed, and were told that they had to answer questions, and that their answers could not be used against them in any subsequent case (we call this “immunized testimony”). State prosecutors thereafter got indictments and convictions. The state appellate courts overturned the convictions, because the immunized testimony WAS used against the cops.
Thereafter, federal prosecutors took over the case, and the Defendants were all convicted and given lengthy prison sentences. Shortly after the Defendants were sentenced, it came to light that a high-ranking federal prosecutor in that office had a habit of anonymously posting in the “comments” section of the New Orleans’ newspaper. These postings basically whipped up support for convicting the cops, before, during and after the trial. Eventually, it came out that the First Assistant Attorney (the Number Two person in the office) also had been posting in a similar manner. She then said she told her boss (the US Attorney) what she had done. Both of them resigned. The final straw happened when the Judge recently discovered that a Washington, DC based federal prosecutor had been doing the same thing concerning this case. The reason this was such a huge problem is that this DC lawyer was the “taint” person, the government lawyer who was supposed to protect the cops from having their immunized testimony leaking over to the trial prosecutors.
The Judge was (and still is) incensed. He reviewed the law, noting that due process requires fairness, whether or not the bad actions of the prosecutors’ had an impact on the actual trial. Here’s what he said: “In every criminal trial, a defendant is entitled to a fair trial before an impartial jury, at which time the government must prove his or her guilt, for each count charged, with admissible evidence, and beyond a reasonable doubt. This sacrosanct principle ensures that no defendant is deprived of his or her liberty as a result of an unfair, biased, or slanted proceeding skewed to achieve a conviction, as opposed to finding the truth with requisite certainty. In this instance, it is difficult to conceive, much less accept, that this time-honored constitutional procedure successfully withstood an attack of the ferocity seen here, a campaign extending back to the commencement of the DOJ’s active investigation of this case in 2008, and continuing through the acceptance of related plea agreements, the indictment, and the trial itself. To conclude that such misconduct was only a little unfair, but not enough to be harmful, turns the fundamental principle of due process on its head.”
The Judge reversed the convictions, and is granting all the Defendants a new trial. Stay tuned, we have not heard the last of this, I predict.