Evidence Of Misconduct: The Judges' Rebellion

Federal Judge Mark Wolf referred Assistant U.S. Attorney Jeffrey Auerhahn to the Bar Counsel for disciplinary action after finding that Auerhahn had withheld exculpatory evidence in the trial of Boston mob captain Vincent Ferrara.

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 third report of a three-part series, we consider the Justice Department’s handling of the case.

“A timid judge, like a biased judge, is intrinsically a lawless judge.”
– Supreme Court Justice Felix Frankfurter

Patsy Barone changed out of his prison jumpsuit and walked out of the federal courthouse on his way to a party in East Boston on Oct. 24, 2005, leaving then U.S. Attorney Michael Sullivan behind, and in front of reporters putting him on the defensive.

Federal Judge Mark Wolf had just released one man from prison as he would later release another who was a Mafia capo. With righteous indignation, the judge told the court and Sullivan’s assistants that he had no choice but to release Barone because the extreme misconduct of federal prosecutor Jeffrey Auerhahn had deprived both Barone and Vincent Ferrara of their rights to a fair trial.

WBUR Series: Evidence Of MisconductWolf even proclaimed that the government owed Barone an apology. In the courthouse lobby, Sullivan now snapped back to reporters that Barone owed an apology to the family of the man he had just admitted to murdering. As for what the judge had concluded about Auerhahn, Sullivan’s assistant, Sullivan said: “These are very serious allegations. We’ve acknowledged that to the court and in fact we’ve asked for a complete investigation to get to the bottom of these allegations.”

Wolf clearly wanted Auerhahn to be held accountable, but the U.S. attorney had asked the court not to impose any sanctions until the investigation was completed. So Sullivan referred the matter to the Justice Department’s Office of Professional Responsibility. Better known as the OPR, it is supposed to investigate complaints and allegations like those raised against Auerhahn.

Can the Department of Justice investigate itself? “Well of course it can’t,” says local criminal defense attorney and civil liberties lawyer Harvey Silverglate. “It seems to me that’s obvious.”

Silverglate says that what Auerhahn is accused of doing is far more routine than the few high-profile cases of misconduct suggest. How the government responds is equally routine, he says.

The Roach Motel

Consider the Office of Professional Responsibility. It has no subpoena powers, seldom comes up with new facts and works at snail’s pace. So dismal is the reputation of the OPR that its critics call it “The Roach Motel” — because, Silverglate explains, “cases go into the Roach Motel and never come out.”

“I can’t say who may have dropped the ball. It might have been me who dropped the ball, but it certainly was not intentional.”
– U.S. Attorney Michael Sullivan

Some judges clearly don’t trust the OPR to do anything. Consider the recent case of ex-Alaska Sen. Ted Stevens. In 2008, Stevens was convicted of ethics violations — all felonies. Political observers say the conviction probably caused his loss in the election that soon followed. But a few months later, his conviction and indictment were thrown out.

Prosecutors had intentionally withheld evidence and even dismissed a witness who might have cleared Stevens. Upon discovering this, the trial judge, Emmet Sullivan, said he wasn’t going to waste any more time dealing with the Office of Professional Responsibility. So he appointed a special prosecutor to investigate all six federal prosecutors in the case for any criminal wrongdoing.

Silverglate calls the actions of Judges Sullivan and Wolf “a rebellion by a minority of members of the judiciary who have seen enough.”

Former U.S. Attorney Sullivan says his office and the OPR acted responsibly and properly in the matter. He says there is no growing problem of prosecutors who withhold “exculpatory “evidence from defendants. “It’s statistically insignificant,” he says. “The question becomes: Is it intentional or inadvertent? Obviously intentional discovery violations should be treated very harshly.”

Judge Wolf Waits For Answers. And Waits

Told by Sullivan in 2003 that he would be informed of the outcome of the OPR investigation, Wolf waited. And he waited. Three years passed. By the end of 2006, he had heard nothing. He wrote to U.S. Attorney General Alberto Gonzales to find out what in the world was going on. In response, the judge got a letter saying that the OPR had actually taken action against Auerhahn — two years earlier.

Vincent Ferrara leaves the federal courthouse in Boston in 2005. Wolf cut his sentence after finding that Auerhahn had withheld evidence. (Mark Garfinkel/Boston Herald)

The OPR had concluded that Auerhahn had “engaged in professional misconduct.” But though the letter told Wolf that “disciplinary action was taken” against Auerhahn, it didn’t tell him what action was taken or include the report.

“I do know that OPR’s findings and recommendations are considered confidential,” Sullivan told me in a recent telephone call.

Even the judge had been kept out of the loop. “This is kind of like if a tree falls and nobody hears it. There is no sound,” Silverglate says. “And it certainly is not going to lead to anything that’s going to reform the legal system because there is no public record something really awful was done here.”

Through hard experience, Wolf had become a foursquare defender of rigorous standards and rules. He had worked at the highest levels of the Justice Department to clean it up after Watergate and he had worked as a federal courtroom prosecutor here in Boston. He’d been appointed by Ronald Reagan and become chief judge in the federal Court of Massachusetts.

He was not going to be brushed back now by the Justice Department or Alberto Gonzalez.

Turning Over Rocks

Silverglate says Wolf feels a special obligation as the chief judge of the federal court “to actually turn over the rocks and see what’s crawling underneath.” Under one of those rocks was the OPR report the government still hadn’t provided.

“It doesn’t much matter if there’s a personal letter of reprimand in a prosecutor’s file, because no one knows about it.”
– Attorney Harvey Silverglate

Wolf shot back at Gonzalez in a scathing letter of demand. He finally got the full report in May 2007, almost two-and-a-half years after the OPR had come to a conclusion and despite Sullivan’s pledge back in 2003 “to provide the court with the results of its investigation.”

In my telephone conversation with Sullivan, I noted that had Wolf “not dragged the information out of them, it doesn’t sound like he would have gotten it.”

To which Sullivan answered, “I can’t say who may have dropped the ball. It might have been me who dropped the ball, but it certainly was not intentional.”

It’s May 2007 when Wolf finally gets the envelope from the OPR. Almost four years have passed since he’d found that Auerhahn had engaged in extreme and intentional misconduct. Now he opens the envelope and finds that the punishment for Auerhahn was no more than a letter of reprimand from Sullivan — a secret letter of reprimand stored confidentially in his file.

To Silverglate, this is the OPR as the Roach Motel, where nothing comes out. “It doesn’t much matter if there’s a personal letter of reprimand in a prosecutor’s file, because no one knows about it,” he says.

And the OPR’s actual finding, when he read it, was unacceptable to Wolf. The OPR had concluded that Auerhahn had committed misconduct, but it found that the misconduct was merely “reckless” rather than “intentional” and “extreme,” thereby putting what he had done in a more innocent light — a matter of “poor judgment.”

The softer accusation also served to soften the range of penalties for Sullivan to choose from.

The Judges Break New Ground

Even as the OPR was sitting on its finding of misconduct and Wolf went uninformed, assistants in the office of the U.S. attorney had been in court trying to get Wolf’s ruling overturned after he released Ferrara, the defendant in the case that sparked it all. Their argument? That Auerhahn had not committed misconduct because he had no obligation to turn over the crucial evidence to Ferrara.

These were the two faces of the government. Auerhahn was secretly reprimanded but publicly praised by Sullivan both before and after. Bernard Grossberg, who defended Patsy Barone at trial, concludes that: “In situations like this, you cannot leave it to the DOJ to police themselves.”

And that was the conclusion of Wolf. Determined that Auerhahn be held accountable for misconduct and possible perjury, the judge filed a complaint with the Office of the Bar Counsel in Massachusetts in 2007. In asking for an investigation, the judge wrote that the evidence against Auerhahn was more than sufficient to consider whether the federal prosecutor should be suspended or disbarred.

Bar Counsel, which is an independent office that investigates complaints against local attorneys, including those in the federal district of Massachusetts, conducted an investigation. Last summer, Bar Counsel concluded that there was probable cause that Auerhahn engaged in misconduct. It petitioned the court to issue an order to Auerhahn to show cause why he should not be disciplined.

A federal judge agreed that the evidence met the standard of probable cause and sent the case to a three-judge panel to decide the matter. Auerhahn moved to dismiss the proceeding, the judges ruled against his motion, and here the matter rests. The judges are on new ground. Which is to say, the matter of judges disciplining federal prosecutors is as new as allegations of misconduct are old.

Revisit any story in this series and explore the interactive pages on our series page.

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  • Dave

    Do we need to here this same news story every single day at exactly the same time on the radio?

    Please stop over-covering this – It’s getting very stale. I’d prefer you keep spamming valentines flowers advertisements again.

  • Jason

    I actually really enjoyed this series, I would sit in my car outside of work to hear each piece from beginning to end. My only disappointment was that at the end this prosecutor is still out there working, no real punishment has been dealt yet.

  • Scott

    Thank you for a thoughtful series on a very important subject.

  • Beth

    This was a great series. I really appreciate the excellent coverage and insight WBUR offers, as always. Thank you.

  • Neena

    Great job boiling down this mess into the three parts. Neither the Justice Department, nor the FBI, can police itself. That’s why we have the judiciary and the press.

  • Francis

    The arrogance/deliberate obtuseness of the former U.S. Atty. is astonishing. Anyone other than a prosecutor would already be in prison for the crimes Mr. Auerhahn has committed. As Americans, every mention of a “Strike Force” or “Task Force” ought to conjure up images of jack-booted troops wearing black uniforms emblazoned with double lightning bolts. We need more Mark Wolf’s and attorneys like those who represented Mr. Ferrara to act as our last line of defense against the real and ever-present reality of prosecutorial abuse that in most cases goes completely unchecked. Thanks to David Boeri & WBUR.

  • Lily

    As a former employee in MA state government where a similar lack of accountability prevails, I’m not surprised Auerhahn was never disciplined or fired for his lies and subsequent cover-up, or that
    U.S. Attorney Sullivan ignored Judge Wolf’s order to investigate and punish those involved. Still, it’s disgraceful that no effective policing mechanism exists to protect us against this abuse, especially since one’s right to a fair trial is one of our most cherished Constitutional rights. This lack of oversight is of even greater concern now that our once powerful press has been compromised by corporate ownership, beset by financial woes, deep staff cuts and retrenchment, and obsessed with celebrity culture at the expense of hard news and analysis. Fortunately for Ferraro, this miscarriage of justice was eventually rectified due in large part to Detective Coleman’s thorough, conscientious police work. But how many others have been falsely accused, convicted and imprisoned because evidence was fabricated, withheld or destroyed? Unless we’re genuinely determined to fight corruption and force accountability in government, even the best public servants and most determined watchdogs will become disillusioned with the futility of trying to change a system that continually rewards those who abuse and exploit it for power, personal ambition and wealth.

    I hope this panel of federal judges severely disciplines Auerhahn for his gross misconduct and establishes a precedent to do the same for others who abuse their office and trample our rights. I’m grateful to Dave Boeri and WBUR for this riveting, important, well-written series. I’d love to see a follow-up piece that outlines what we need to do to make this necessary reform happen.

  • Rudolf

    Suspicions confirmed.

  • Barnyard

    Great series, I hope that when the decision of the panel is complete it will be reported in detail. It seems to me that the US Attorney has culpability in this case and should also be investigated.
    Good job David.

  • SS

    what’s the big deal. Judge Wolf and three other judge fix case for three Boston fire officers who frmed a man and admitted it.

  • SS

    Attorney Havery Silverglate was part of the cover for the fire officers in the state court. As they say, it was better to save three white Boston fire officers then one black man. I never seen a case with a massive cover up. Boston fire officers making false police reports, erasing state district court tapes, terorizing the only black juror, fabricating evidence all for former Boston deputy fire chief Peter P. Pearson who now being held for three rape charges in Plymount county jail. When the Suffolk county asst D.A. James Larkin was question about fixing the evidence, he resign. It’s true that they will fix a case. The attorney on the case said, ” they were not going to let these three officers go down.” Cover up.

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