From the White Collar Crime Prof Blog:
It is rare that a judge uses supervisory powers to correct an injustice, but sometimes it is the right action – especially when there has been government misconduct. The Hon. Cormac J. Carney used his supervisory powers to dismiss the case against former Broadcom’s Henry Nicholas III, and former CFO William Ruehle, stating:
“Based on the complete record now before me, I find that the Government has intimated and improperly influenced the three witnesses critical to Mr. Ruehle’s defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.”
The judge ended by stating that “I sincerely regret that the government did not heed the righteous words of the Supreme Court” referring to the Berger case. I read the opinion and this is the language from Berger:
“The United States attorney is the representative, not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and a very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocent suffer.
He may prosecute with earnestness and vigor. Indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Righteous words indeed. This case will surely make the rounds for everyone to provide commentary and analysis and opinion and so forth. I think the analysis is simple. The government’s misconduct made the case unfair and as a result, the judge dismissed it. That seems fair to me.
The question that remains, however, is whether or not the prosecutors will take this opportunity as a teaching moment. I doubt it. The misconduct described in this case is outrageous. There are other examples that are not as outrageous, but have the same result: an unfair trial.
Judges surely can’t dismiss every case. They do, however, have other remedies available to ensure a fair trial. Not too long ago, a local judge found a police officer in contempt for not turning over discovery. That should have been the shot fired over the bow. Maybe it wasn’t heard because today I saw a defense lawyer’s motion to compel discovery because the prosecutor refused to reveal it. Maybe it is time for a case to be dismissed in Horry County. Maybe that will be the teaching moment.
