Evidence Of Misconduct: 'The Smokingest Gun'
When Assistant U.S. Attorney Jeffrey Auerhahn joined Boston’s war on organized crime, he turned his focus to an up-and-coming mobster named Vincent Ferrara. The operation was called “Tunnel Vision,” which would prove a fitting description for Auerhahn’s alleged rule breaking to bring down his target. Auerhahn thought he had a smoking gun in a witness who testified that Ferrara ordered a hit. Problem is, the witness lied. Worse, a judge ruled Auerhahn knew he lied — and covered it up.
The case raises troubling questions from critics who worry that withholding evidence has become a tactic of some federal prosecutors. Those critics question whether Justice can police itself. In this second report of a three-part series, we dive into the misconduct case against Auerhahn.
“Oh! what a tangled web we weave
When first we practice to deceive!”
–Sir Walter Scott
A Detective’s Stunning Testimony
As a witness to his own lying, Walter Jordan may not have been the most trustworthy character.
He had come forward 11 years after Vincent Ferrara was sent to prison to say that he had lied about Ferrara ordering a murder that Jordan himself had attended. Ferrara had gone away for 22 years, much longer than if he hadn’t been charged in connection to the murder he insisted he hadn’t committed.
Jordan also testified in 2003 that he had told federal prosecutor Jeffrey Auerhahn that he had lied, even before Auerhahn went to trial and, even worse, that Auerhahn and the FBI agent who worked with Auerhahn forced him into sticking with his lie.
On his own, however, Jordan would have had a credibility problem. He was a con man, a felon, he was a possible accomplice to the murder in question and one way or another he was a liar — either then or now. But Jordan was followed to the witness stand by the explosive testimony of a retired Boston police detective.
His name was Martin Coleman. And he testified that, yes, back in 1991, Jordan had confided that he really wasn’t telling the truth. Det. Coleman testified that he wrote a report to that effect and handed it to Auerhahn himself. The courtroom was stunned.
Judge Mark Wolf called a recess and ordered federal attorneys to find Coleman’s report. And after they brought it back to Wolf, he called it “the smokingest gun I’ve ever seen.”
“Coleman’s report says exactly what Coleman said he told Auerhahn: that Walter Jordan had recanted,” says Bernard Grossberg, the lawyer for the other defendant in the case, the one convicted of following Ferrara’s alleged orders.
A Prosecutor’s Case Goes Way South
By Supreme Court rulings and local rules of the federal court, prosecutors must provide a defendant with any evidence in the government’s possession that might clear him of guilt.
Det. Coleman said he knew that well. So back in 1991, Coleman testified, he handed a typewritten memo about the witness’s change of story to prosecutor Jeffrey Auerhahn and said, “This is exculpatory. I want it handed to the defense.”
To Bernard Grossberg, it was “black letter law,” a matter beyond dispute. “We should have had that report,” he says.
Had Auerhahn turned over that evidence to Grossberg and to the attorney defending Ferrara, Auerhahn would have clearly fulfilled his obligation as a prosecutor. But turning it over may well have wrecked his case and his attempt to make Ferrara, the Mafia up and comer, a down and outer.
When your only witness, who you’re expecting to say Ferrara ordered the murders, now says Ferrara didn’t order the murders, your case is going south.
In any event, Auerhahn never disclosed Coleman’s report or Jordan’s statements to the defense.
Harvey Silverglate, a local criminal defense attorney and author of “Three Felonies a Day: How the Feds Target the Innocent,” has followed the case closely. He says the government’s conduct in the Ferrara case “would merit a grand jury investigation into obstruction of justice and subornation of perjury were it not for the statute of limitations which applies to a criminal prosecution.”
The Fabrication Of Evidence
In those hearings of September 2003, suspense and suspicion turned on Auerhahn, the prosecutor, as soon as Coleman’s file entered the courtroom. Coleman’s handwritten memo was found in the file. But what was missing from the file was the typed report Coleman said he signed and hand-delivered to Auerhahn after he watched the secretary type up his handwritten memo.
“A witness who falsely testifies that he does not recall a material fact has committed perjury.”
That was crucial. Because in its place, there was another typed report in the file purporting to be from Coleman. But Coleman said he never wrote it. He hadn’t signed it either. And most tellingly, this suspect report contained none of the witness’s most damaging statements reported in Coleman’s handwritten memo.
“Mr. Jordan stated that he knew Pattsie [sic] Barone had not gotten permission to kill the victim,” the handwritten memo read. The detective had reported that statement — that Barone had not gotten permission — three times in his report.
Jordan’s statements could only mean one thing: Ferrara hadn’t ordered Barone to commit the murder. But not once are those statements reported in that suspect typewritten report that was found in the file.
So who wrote and typed that doctored report and put it in the file?
The courtroom turned to Jeffrey Auerhahn. “You never thought an assistant U.S. attorney would be involved in fabricating evidence,” Grossberg says.
At this point in the hearings, the judge turned into a tiger closing in on the chase. As Grossberg concluded: “Whoever wrote that report had committed a form of perjury.”
Auerhahn was called to the stand. He testified that he had no memory of seeing Coleman’s report or receiving that information “in any form at any time.” He had no memory of Coleman or the witness telling him that his central witness in a murder case had admitted to lying.
For a trial, a defendant, a charge so big — hearing that your central witness has just disavowed the statement your case is built on — would seem to be something you wouldn’t forget. Auerhahn said he had no recollection of it. After a stunning litany of a lost memory, Auerhahn stepped down and walked past Ferrara, who was sitting beside his lawyers in his orange prison jumpsuit.
A Guilty Man Walks Free
Five years later, Ferrara, a free man, recalls the climax of the hearings. “It was the greatest feeling in the world when Judge Wolf said this court seriously doubts that Ferrara had anything to do with the homicide,” Ferrara tells me. “I wanted to stand up and cheer.”
“This is an epidemic in the federal criminal justice system. They teach the witnesses how to tell them what they want to hear.”
Wolf called Coleman “an honest and able” cop. He called Auerhahn’s conduct “a fraud upon the court.” He was persuaded, the judge later wrote, that Auerhahn had prepared the doctored report himself. He added, in an ominous note, “A witness who falsely testifies that he does not recall a material fact has committed perjury.”
Wolf would later rule that he had no choice but to release Ferrara from prison, which he did in 2005. He had released the other defendant, Patsy Barone, two years earlier.
In explaining why he had lied, recanted, wobbled and then gone back to lying again about Ferrara, Jordan later told me he knew what Auerhahn and the FBI agent wanted. “They wanted Vinnie Ferrara, they didn’t want Patsy Barone,” he said. “It was Vinnie, Vinnie, Vinnie … I’m no idiot … I was afraid they’d give me life in prison if I didn’t testify to that.”
Of the manipulation of witnesses, defense attorney Harvey Silverglate says, “this is an epidemic in the federal criminal justice system. They teach the witnesses how to tell them what they want to hear. I call this subornation of perjury.”
Seven years later, Auerhahn continues to work as a federal prosecutor here in Boston. He’s been praised by the last U.S. Attorney. There’s never been a public action by the Justice Department to discipline him. Through his lawyers, Auerhahn declined to comment for this story.
A few miles away from the federal courthouse, at a coffee shop in the North End, Ferrara says he’s keeping his word to Wolf that he would not return to his past. “To do so,” he told the judge back in 2005, “would be to qualify … for the Idiots’ Hall of Fame.”
In this reversal of fortune, the former Mafia capo and Boston College graduate turns philosophical, offering ironic clarity and understanding. “Jeffrey Auerhahn was very passionate about his work,” Ferrara says. “He became obsessed. He ended up in the zealot zone. That’s when he crossed the line.”
Wolf wanted Auerhahn held accountable for crossing that line. And in reaction to the judge’s fury and his accusations, the U.S. Attorney and Auerhahn’s boss in Boston defended his office.
In October 2003, on the day one defendant went free and the judge told him the government owed him an apology because he hadn’t gotten a fair trial, U.S. Attorney Michael Sullivan insisted: “We take our ethical responsibilities very serious. These allegations that were raised are serious allegations. We’ve acknowledged that to the court.”
“In fact,” he said, “we’ve asked for a complete investigation to get to the bottom of these allegations.”
Did they get to the bottom of those allegations? In our final report, we’ll tell you what happened and why Judge Mark Wolf and others are questioning the Justice Department’s ability to police itself.