Evidence Of Misconduct: Never Having To Say You’re Sorry
When criminals break the law and are caught, they’re prosecuted and punished. But what happens when prosecutors break the rules? In the case of one federal prosecutor in Boston: apparently not much.
In a three-part series in February, we reported the case of Assistant U.S. Attorney Jeffrey Auerhahn, who was found by two courts to have withheld evidence that could have cleared the defendant of murder. Auerhahn knew his chief witness was lying — the witness’s own admission — but covered it up.
Legal experts and critics see Auerhahn’s misconduct as part of an trend among federal prosecutors that has led to led to a number of high-profile cases being thrown out, including the conviction of former Alaska Sen. Ted Stevens. As a disciplinary proceeding finally moves forward Thursday, we take another look at what is called part of a national scandal.
“If a criminal defense lawyer, for example, did what this prosecutor is charged with having done, he would have been disbarred by now.”
Professor Monroe Freedman of Hofstra University is talking about local federal prosecutor Jeffrey Auerhahn.
Freedman is widely recognized as the nation’s preeminent authority on legal ethics. He’s often called a prophet. Auerhahn is recognized by some as a symbol of what has gone wrong with the system of holding federal prosecutors to account.
Seven years ago, Auerhahn came under the spotlight of a federal judge here in Boston, Mark Wolf. Wolf ruled that Auerhahn had deliberately withheld evidence that would have helped clear a defendant of a murder. The judge accused Auerhahn of engaging in a massive cover-up.
Yet seven years after Wolf’s ruling, and four years after the Court of Appeals ruling, Auerhahn’s still on the job as a front-line prosecutor. Indeed, he is now a prosecutor with the prestigious anti-terrorism unit, where he’s currently the lead prosecutor against a woman connected to the Rwandan genocide. She is charged with making false statements, the same thing two courts have accused Auerhahn of doing.
What has not happened to Auerhahn is all too common, Freedman says. “This general failure to discipline prosecutors who are guilty of seriously unethical and unconstitutional conduct is one of the great scandals of the legal profession.”
Freedman cites a study that found that 100 state and federal prosecutors had been disciplined over the course of 100 years. And on those rare occasions when prosecutors are disciplined, it’s usually for felonies, like embezzlement and bribery.
Indeed, Freedman says, the chances of a prosecutor being punished for smoking pot are far greater than for hiding evidence and using false testimony. When I laugh and say that’s unbelievable, he says, “I wish it were unbelievable, but it’s all too believable.”
Freedman says: “In the face of numerous studies and complaints, serious ethical violations are rarely disciplined. There is no excuse. There is no justification for it.”
On Thursday, a panel of three judges will take up the matter of possible disciplinary action against Auerhahn in federal court. But there’s no wonder why legal experts say “don’t hold your breath.”
The Lying Witness
“Why did you lie when you testified for the government?” I ask of Walter Jordan. I have been talking to him back and forth on his travels to safety for seven years now.
“To stay out of prison,” he replies. “Vinnie was a get out of jail free card.”
Walter Anthony Jordan was Auerhahn’s key witness against Mafia caporegime Vincent Ferrara, and Ferrara was Auerhahn’s key target back on the Organized Crime Task Force in 1990. Ferrara, better known to the feds as “Vinnie The Animal,” was an upcoming leader of the downgoing mob; the feds understandably wanted to take him off the streets.
Jordan was Auerhahn’s only witness to a crime that could put Ferrara away for a long stretch of time. It was a murder in the North End that had been committed by Jordan’s close associate — while Jordan was in attendance.
“And so you testified that Vinnie ordered a murder?” I ask.
“Yes I did,” Jordan replies. “But I testified and they knew, Jeff (Auerhahn) knew, that I was lying. ”
“And how did he know you were lying?” I ask.
“Because I told him so.”
Jordan says he told that to Auerhahn as the prosecutor was preparing to go to trial in 1991. More importantly, as it turned out, Jordan also admitted that to a Boston police detective who worked alongside Auerhahn. And the detective wrote a report and filed it with Auerhahn.
When Jordan recanted his story, Auerhahn had a problem. He had a Constitutional duty — mandated by the Supreme Court in what’s called the Brady decision — to turn over the exculpatory evidence to the defense. And what is exculpatory if not the evidence your witness says at one point or another he has been lying?
But Auerhahn’s case against Ferrara for that one murder rested solely on Jordan’s testimony that Ferrara ordered it. If he turned over the evidence, it would have wiped out the murder charge. Auerhahn didn’t do it. Instead, Jordan says, Auerhahn and his FBI agent scared him into sticking with his original story.
“Listen,” he says, his voice taking direct aim. “All they wanted was Vinnie. I mean it was Vinnie, Vinnie, Vinnie the whole time,” Jordan says.
“That was my ticket to freedom. Was Vinnie. If I didn’t say Vinnie ordered it, I was going to prison for the rest of my life, state time and federal time.”
So that’s what he did. Ferrara went to prison, with an extra stretch for the murder. And Jordan went into witness protection. Today, he’s out of witness protection but still in seclusion, in fear that either the Mafia or government agents are going to find him and kill him. After all, he adds, both sides consider him a rat.
Jordan’s full story spilled out into the courtroom of Judge Mark Wolf in 2003. The dramatic turning point came when that Boston police detective, who had filed a report back in 1991, corroborated Jordan’s story.
Wolf accused Auerhahn of perjury, fabricating evidence and perpetrating a fraud upon the court.
“There are corrupt prosecutors, but you just never expect it,” observes defense attorney Bernie Grossberg. He’s one of the attorneys Auerhahn made sure didn’t get the exculpatory evidence of Jordan’s recantation back in the 90s.
“You never ever, ever expect a prosecutor, a fellow attorney, to do what Auerhahn’s accused of doing,” Grossberg says.
To undo Auerhahn’s damage, Judge Wolf ruled, he had no choice but to free Ferrara and another man from prison. Reversing convictions and vacating prison sentences have become more common as high-profile cases of misconduct come to light nationally. But Auerhahn and most of the other prosecutors almost always get to keep their jobs without serious punishment.
Stephen Gillers of the NYU School of Law is another, nationally recognized expert on legal ethics. “Looking at it through the best possible light,” he says, “Auerhahn is a threat to the Justice Department.”
Judge Wolf wanted to punish Auerhahn. But the U.S. attorney here in Boston at the time, Michael Sullivan, acted to forestall the judge by sending the matter to Washington to be investigated by the Department of Justice. But “no one should rely on that office for the discipline of federal prosecutors or Justice Department lawyers,” says Gillers.
Critics sometimes call the Office of Professional Responsibility, or OPR, “The Roach Motel” — things go in and never come out. In the case of Auerhahn, OPR made a watered-down finding of misconduct, then gave him a private letter of reprimand. OPR even hid the letter from Judge Wolf. And remember, Wolf is the chief judge of the District Court.
“Would any private person use Auerhahn as their lawyer going into court given these critiques of his credibility?” Gillers asks. “I doubt it very much. And yet here is the Department of Justice keeping him on the payroll.”
When Judge Wolf discovered in 2007 what the Department of Justice had kept from him since 2005, he turned to the local disciplinary authority for the punishment he thought Auerhahn deserved. But it took the Office of Bar Counsel another two years to file a petition for discipline.
Meanwhile, Auerhahn continued to have the support of the U.S. Attorney’s Office in Boston. U.S. Attorney Sullivan praised Auerhahn in public, even though he had privately signed a letter of reprimand, slap on the wrist though it might have been.
Then, in 2009, after a new president named a new U.S. attorney and Carmen Ortiz was installed here in Boston, she chose to keep Auerhahn as a front-line prosecutor rather than re-assign him and send a message.
“She could have transferred him to the civil division, which is Siberia for criminal prosecutors,” according to Gillers, who says she should have. As the top prosecutor here, Ortiz should be answerable for her actions, he emphasizes.
When we called the U.S. attorney to ask why she chose not to reassign Auerhahn given the findings by two federal courts while she was a federal prosecutor in the same building, Ortiz declined comment.
She cited “the pending proceedings.” But in truth the proceedings have been pending for eight years now.
Professor Gillers professes to be perplexed by it all, that nothing seems to have happened yet despite the court findings, despite a new U.S. attorney, despite the problems posed by a prosecutor appearing before judges who know of his history.
“It’s not good for the credibility of the federal courts that this is happening.”
When the federal judges take up the issue of Auerhahn on Thursday, it will be the first time they have met in nearly a year, having kicked the final resolution of the Auerhahn case still farther down the road.
No wonder one defense attorney observes that to be a federal prosecutor means never having to say you’re sorry.
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