Advocates Crossed the Line into Zealotry
Our Opinion: in Stand Against Prosecutors,
 Judge Gold Stands up for Justice

Editorial
The Miami Herald
April 15, 2009

Prosecutors are expected to be tough advocates in going after the bad guys, but when that zeal turns into ''win-at-all-costs'' behavior, justice is not served.

U.S. District Judge Alan Gold used that term, ''win at all costs,'' to describe the egregious misconduct of three U.S. prosecutors in an exhaustive 50-page reprimand last week. The judge was justifiably outraged by the way prosecutors Sean Cronin, Karen Gilbert and Andrea Hoffman handled a narcotics case against a Miami Beach doctor.

The prosecutors conducted a secret investigation of the defendant's attorneys, using informers to try to entrap them into bribery. They taped the defense attorneys' conversations, but all they got was lawyers saying No to the informers' invitations to commit bribery.

Becoming vengeful

The prosecutors then used their informers as witnesses in the trial, asserting that they were impartial and neutral, which could hardly be the case since they had tried to help set up the defense team. The prosecutors neglected to tell the judge or their boss, the U.S. attorney, about their extra-curricular venture. When the defense team wasn't cooperative enough, the prosecutors became vengeful. They increased the original 26 charges to 141.

None of this worked. A witness revealed the bribery entrapment scheme on the stand. The defense used this to argue that the prosecutors had a weak case. The jury agreed, and the defendant was found not guilty on all counts.

Now Judge Gold has ordered the U.S. attorney's office to pay the former defendant, Ali Shaygan, $600,000 as a fine for the prosecutors' bad behavior. The fine will reimburse Dr. Shaygan for his legal fees.

Attorneys reprimanded

U.S. Attorney R. Alexander Acosta said the prosecutors have been reprimanded. One has quit and another has transferred out of the criminal division. Judge Gold is sending his reprimand to the Florida Bar for review.

The U.S. attorney's office argues that this type of secret investigation by prosecutors is not necessarily misconduct.

Where these three prosecutors went wrong was in not getting prior approval, as required by rules of the U.S. attorney's office, for a witness-tampering investigation.

Judge Gold pointed out that the prosecutors' over-zealousness in adding 115 additional counts resulted in the defense having to request additional continuances, which kept Dr. Shaygan under strict conditions of house arrest. This added 'to the `weight' of the indictment and the seriousness of the offense presented to the jury,'' and is 'contrary to their ethical obligations as prosecutors and a breach of their `heavy obligation to the accused' '' Judge Gold said.

Bravo to Judge Gold: When prosecutors misbehave, justice is at risk.