BOSTON — For prosecutors, losing a Rule 29 motion for acquittal is like a baseball player hitting into a triple play.
But U.S. Attorney Carmen Ortiz and her team of prosecutors have not only been on the losing end of a striking number of such motions, they also have the dubious distinction of being hammered in some harshly written opinions from the federal judiciary.
Just days after Ortiz was called into question for her handling of the Aaron Swartz case, U.S. Magistrate Judge Judith Dein denied a government bid to seize a Tewksbury motel under the Civil Asset Forfeiture Reform Act.
In ruling in favor of the motel, Dein found (PDF) that prosecutors had failed to present sufficient proof to meet their burden. Then she went on to accuse Ortiz’s lawyers of “stretching the evidence” and engaging in a “gross exaggeration” of the case.
George Skogstrom Jr. of Braintree, one of the lawyers for the motel, faults the prosecution for the unwavering position it took in the case.
“Regardless of the evidence we came up with or how many times, they just seemed to plow forward,” he said. “They just wouldn’t back off. … This case should have ended shortly after it was brought. … These assistant U.S. attorneys come to work and they go home to their families and they just don’t think of the consequences of their actions on the people. The question we kept asking is: ‘How can they proceed?’ The banality of evil is one reason why they would proceed.”
Dein’s 59-page decision pales next to U.S. District Court Judge Douglas Woodlock’s ruling (PDF) in the case of Lorraine Henderson.
An official with the U.S. Customs and Border Protection, Henderson was charged in 2008 by then-U.S. Attorney Michael Sullivan for allegedly hiring an illegal alien to clean her townhouse. The government accused Henderson of encouraging and inducing the Brazilian woman to remain in the U.S.
“She’s supposed to be deporting aliens, not hiring them,” the head of Ortiz’s Public Corruption Unit told reporters at the time.
In building its case against Henderson, the government made it clear to the Brazilian woman that it could deport her, offering her the opportunity to stay in the country if she agreed to wear a recording device to try to ensnare Henderson.
Instructed to tell Henderson she was in the country illegally, the cleaning lady went on to ask Henderson what she should do.
In the secretly recorded conversation, Henderson allegedly said: “If you leave, they won’t let you back. … You can’t leave, don’t leave.”
Henderson’s Boston lawyer, Francis DiMento, said at the time that “[s]imply to tell the alien, ‘Don’t leave the country until you’ve filed your application to become legal,’ is not an act; it’s simply verbiage that doesn’t amount to a crime.”
Nevertheless, a jury convicted Henderson in March 2010.
Woodlock scorched the prosecution for trying to crush the defendant in what amounted to a pedestrian crime.
Last October, he granted a motion for new trial. Calling the case “overkill,” Woodlock said he was puzzled by the “dogged consistency” with which the prosecution pursued the matter.
The judge noted that he received a “highly unusual” letter from one of the jurors after the trial, in which it was suggested that the government had exploited Henderson “for publicity and political reasons” over her lack of prudence in the “hiring of a cleaning lady.”
Woodlock found that a parallel misdemeanor provision in the law treats even more significant conduct “as de minimis,” not meriting criminal sanctions. He wrote:
The Office determined to exercise its considerable discretion … to initiate this unusual prosecution under a felony statute designed to address conduct so serious that it provides a predicate for application of the blunderbuss Racketeering Influenced and Corrupt Organizations (‘RICO’) statute. The current administration of the [USAO] appears content to permit the case to continue.
Ortiz declined to discuss the Henderson case because it is pending before Woodlock. But in an adversarial system, she said, there are going to be times when lawyers and judges do not see eye to eye.
Northeastern University School of Law professor Daniel Medwed said the Dein and Woodlock rulings are noteworthy.
“It’s incredibly striking to have seasoned, reasonable judges say that ‘I have never seen this’ and go so far as to put it in a public document,” he said. “It does suggest where there is smoke there is fire.”
Two years prior to the Henderson case, U.S. District Court Judge Nancy Gertner had harsh words of her own for Ortiz’s lawyers.
In granting a motion for new trial in the arson suit of Jimmy Hebshie, Gertner found (PDF) that the prosecution put on “over the top” evidence that went unchallenged by ineffective counsel for the defense.
Even after Gertner issued her order in November 2010, it was not until June 2011 that Ortiz agreed to drop the case, said Hebshie’s appellate counsel, Jeanne Kempthorne, who worked with Ortiz in the U.S. Attorney’s Office for several years.
“It was just horrible,” Kempthorne said. “It took the government six months after Gertner ruled to give up on their retrial and appeal. They threw in the towel only when I threw at them the Speedy Trial Act.”
The prosecution’s conduct was so appalling that Ortiz should apologize to Hebshie, Kempthorne added.
“When we were about to begin the evidentiary hearings on the motion for new trial, I wrote an email to the prosecutor and said, ‘You know, I’ve never done this before, but are you guys really going through with this?’ ”
The email fell on deaf ears, the Salem lawyer said. The case plodded along for another year while her client remained behind bars.
“[Ortiz] is supposed to be the adult in charge, and she wasn’t in that case,” Kempthorne said. “I have been appalled, and I feel that I owe it to Jimmy Hebshie to say so. This isn’t about friendship. This is about Jimmy Hebshie and what was done to him.”
Ortiz said six months is hardly an unreasonable amount of time for the government to make a decision. And she attributed Kempthorne’s comments to a zealous advocate defending her client.
“I believe I did the right thing,” Ortiz said. “She should be applauding us.”