Court Says Prosecutor's Lies Means Man Can Have His Money Back, But Not His Life

from the and-not-even-a-wrist-slap-for-the-prosecutor dept

In a mess of a case that involved multiple incidents of prosecutorial misconduct, as well as an after-the-fact decision to seize assets, the only people walking away clean are the prosecutors. The Open File has the background and details.

In an appellate opinion notable for its extensive adjudication of several aspects of prosecutorial misconduct, the 5th Circuit has upheld a lower court finding of misconduct in a defendant’s first trial, as well as a claim of prosecutorial vindictiveness in his second. It has managed to do this while, nonetheless, affirming the defendant’s criminal conviction and sentence.
The defendant, Jason Dvorin, was convicted in 2012 for bank fraud, largely because of the testimony provided by his co-conspirator, Chris Derrington. He was sentenced to two years in prison and ordered to pay $100,000 in restitution.

He appealed this first conviction, which is when the first details of prosecutorial misconduct were uncovered.
During Dvorin’s first appeal, the government “discovered” that prosecutor Mindy Sauter had failed to disclose a sealed supplement to the plea agreement with Chris Derrington promising Derrington assistance in obtaining leniency at his own sentencing.
Not only did the government not disclose this close working arrangement between prosecutors and Dvorin's co-defendant, but it allowed him to perjure himself by affirming under oath that no such agreement was in place.

The government did the right thing… as far as that went. It admitted to the Brady and Napue violations and allowed the sentence to be vacated. But that didn't take Dvorin off the hook. All it did was set him up for a second trial.

It was at this point that the district court decided to get to the bottom of the prosecutorial misconduct.
[W]hen the case came up for retrial, the district court “issued a show cause order in which it requested that the government’s counsel file a pleading addressing why sanctions should not be imposed for Sauter’s failure to disclose Derrington’s plea agreement supplement and Sauter’s permitting Derrington to falsely testify that the government had not made him any promises.”
This pleading was accepted and the court took a look at Sauter's actions. But it decided that the abuse wasn't enough to justify letting Dvorin walk away from the charges. Not only that, but it cut Sauter a whole lot of slack.
[D]espite finding that Sauter had “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” the lower court did not find Sauter had acted in “bad faith,” and chose to impose no sanctions.
Dvorin was convicted and sentenced a second time. To add insult to the injurious behavior of its prosecutors, the government decided to tack on an asset seizure, which the court agreed to impose.

Both Dvorin and Sauter appealed this decision. Dvorin raised objections to the lack of sanctions against the prosecutor as well as the forfeiture order, which he termed "vindictive."

The prosecutor appealed in her individual capacity. Sauter's concern was for her own reputation.
In response to being called out by name for misconduct in the district court ruling, Mindy Sauter appealed the judge’s “reputational findings” that she had violated Brady and Napue.
Sauter didn't mind abusing her position to offer secret plea agreements and encourage her witness to lie to the court about it. But she did mind having her name made public -- in association with her own abusive actions -- by the court's decision to not bring sanctions against her. The appeals court, at least, didn't offer her much sympathy. It noted that a majority of the filings were still sealed, so any "reputational damage" was minimal. It didn't go so far as to disabuse her of her notion that her actions shouldn't have consequences -- even as it declined to hand out any additional punishment or vacate Dvorin's sentence.

To make things worse, the court -- while tossing out the $91,000 forfeiture -- similarly found any injury to Dvorin was so minimal that Sauter should not be personally punished nor have her case tossed. From the opinion:
The individual who was responsible for the discovery violation (Sauter) was no longer involved in the case at the time the district court was considering the propriety of awarding sanctions. Thus, the concern of deterring future misconduct was less significant than it might have been otherwise.
That's apparently how you escape being held responsible for your misconduct: keep working your way through your caseload. Although she did perform the acts that were later found to be Brady/Napue violations during the first prosecution of Dvorin, the fact that she wasn't directly involved in the retrial was apparently punishment enough.

As The Open File notes, the decision to let Sauter escape without even a slap on the wrist, while simultaneously finding the forfeiture order to be vindictive, is almost completely contradictory. The problems originated with Sauter. They were only made worse when the government decided to seize Dvorin's assets while trying him for a second time.
In sum, then, we have a court choosing, in Sauter’s case, to impute no ill motive to her suppression of material evidence, while at the same time imputing a vengeful motive to her successors.
If the problem of prosecutorial misconduct is ever going to be fixed, it must first be addressed. The court here barely does that. In fact, it seems the court would have done even less if Sauter hadn't taken it upon herself to try to rebuild her damaged reputation by appealing the lower court's decision.

In the end, everything Sauter did and everything the government attempted to vindictively pile on was left mostly intact. Dvorin may have gotten his money back, but he's still in prison. Sauter and the other government prosecutors are still free to abuse the system to the extent the courts will let them get away with it. This district has shown it's willing to permit a number of violations before it will even consider tossing convictions. Those are pretty good odds, if you're the sort of prosecutor who thinks breaking the rules is perfectly acceptable when pursuing "justice."

Filed Under: 5th circuit, chris derrington, jason dvorin


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  • icon
    That One Guy (profile), 7 Apr 2016 @ 1:40am

    "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

    This district has shown it's willing to permit a number of violations before it will even consider tossing convictions. Those are pretty good odds, if you're the sort of prosecutor who thinks breaking the rules is perfectly acceptable when pursuing "justice."

    Which becomes great odds if you don't give a damn about 'justice' and only care about 'convictions', as is apparently the case here. Do whatever you want and can to get a conviction, even if you get found out and your wrists lightly slapped later the conviction still stands on your record.

    [D]espite finding that Sauter had “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” the lower court did not find Sauter had acted in “bad faith,” and chose to impose no sanctions.

    Translation: Showing reckless disregard for your duties and acting in an 'irresponsible' manner is to be considered normal procedure for prosecutors. That's not setting the bar low for acceptable conduct as a member of the legal system, that's not even having a bar, and basically saying 'Anything goes as long as you're a prosecutor.'

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 4:19am

      Re: "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

      You'all need something like Section 24 of the Canadian Charter of Rights and Freedoms. Under Enforcement:
      24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

      (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

      There are literally hundreds of cases of prosecutorial misconduct and police abuse in the USA every year, only some of which are reported here. While there certainly are much worse countries, the abuses, such as this case in Texas, only add to the disrepute of the US justice system. The global perception of the level of corruption in the USA is testament to this disrepute.
      https://en.wikipedia.org/wiki/Corruption_Perceptions_Index

      The fact that it's only every once in a while that an American judge throws out a case and berates the prosecution for their corruption belies the idea of a fair and just system. Every one knows that nothing will change and no one will go to jail - except the innocent.

      reply to this | link to this | view in chronology ]

      • icon
        Paul Renault (profile), 7 Apr 2016 @ 4:23am

        Re: Re: "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

        Oops: forgot to sign in first.

        Any slings and arrows about my comment re. Section 24 can be directed at me.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Apr 2016 @ 6:01am

          Re: Re: Re: "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

          Sure, I'll toss a sling at you. Feel free to load it with more projectiles and have at the US justice (flavored) system.

          reply to this | link to this | view in chronology ]

          • icon
            orbitalinsertion (profile), 7 Apr 2016 @ 6:03am

            Re: Re: Re: Re: "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

            Ha, it's a two-fer. I was signed out as well.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Apr 2016 @ 7:49am

          Re: Re: Re: "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

          Exactly what do you think "you'all" is a contraction of?

          reply to this | link to this | view in chronology ]

      • identicon
        Tin Foil Hat, 7 Apr 2016 @ 8:30am

        Re: Re: (Charter in Canada)

        The power structure in the US are quick to call every other rich democracy socialist. It's to prevent its citizens asking for stuff like justice, a decent healthcare system and a government that isnt corrupt. It's to maintain the ruse of a free country. They're also quick to point out that the US is better than (insert name of really shitty country). And you're free to move to said shitty country. We have low standards here. We don't want to rise to the level of the best countries just merely a notch above the worst. And we're so arrogant that we believe that Americans can arrive at any international border and demand entry.

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 11 Apr 2016 @ 2:42am

          Re: Re: Re: (Charter in Canada)

          Well to be perfectly fair these things were brought in by a) actual socialists and b) people influenced by them.

          Socialism as an idea is not entirely a bad one but as with any other ideology the problem is with a) implementation and b) the insistence on taking a blue-sky approach to making policy. It's why I'm not a Socialist even though I have a fair bit of sympathy for those programs I like, e.g. free healthcare.

          Put it this way: I can't see any practical value in creating a huge underclass of very poor, increasingly angry people.

          The watered-down socialist idealism that provides the state-funded services we need helps to stave off the kind of radical leftism that terrifies me. Why oh why do people on the Right keep forgetting this? We can only be encouraged to turn on each other for so long. When that anger finally turns outwards and upwards... BOOM!

          There's always Boom! tomorrow. Let's all hope enough people realise that before tomorrow comes.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 11:12am

      Re: "We find that while the case may have been rigged, the conviction stands, because screw the very concept of justice."

      Or "anything goes as long as ms Sauter is prepared to see the judge alone/naked in his chamber"....

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2016 @ 4:07am

    Sadly this happens far to frequently these days. The government prosecutors care more about getting a conviction, any conviction whether the person is really guilty or not, that they seem to be more than willing to break the law or at least very serious breaches in conduct in order to get those convictions. Then rarely do those same prosecutors ever get anything more than a slap on the wrist for their actions, if anything at all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2016 @ 4:12am

    No surprise.

    Government prosecutor. Government court. One hand washes the other.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 11:12am

      Re: No surprise.

      I hope that Both hands used soap, because there are whispers that Sauter has given handjobs to judges and defendants lawyers to secure convictions.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2016 @ 6:04am

    am I misunderstanding?

    Case goes to trial. Defendant gets convicted. But Prosecutor acts badly, so conviction gets thrown out.
    Prosecutor gets another conviction with additional sanctions on the defendant. Appeals court tosses the new sanctions.
    Dvorin may have gotten his money back, but he's still in prison.

    He's in prison for committing bank fraud. Prosecutorial misconduct didn't suddenly make him innocent. I'm all for piling on penalties to the prosecutor personally, but that's a separate issue, here.
    He already got a second trial, what more do you want?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 8:03am

      Re: am I misunderstanding?

      Strange how one guy goes to prison for his transgressions while another does not. Looks like two sets of rules.

      Hold on a second ... so the banker gets probation?
      Hahahahaha

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Apr 2016 @ 9:54am

      Re: am I misunderstanding?

      I see your point. But if he's hiring his own attorney, the failure to award sanctions could be important, since it could affect his ability to put up a second defense. Especially if they tack on a forfeiture.

      Also, during the second trial, the court prohibited the defense from cross-examining the witness to ask whether he had committed perjury in the first trial by lying about the plea deal. IMO this is relevant to the credibility of the witness, and the defense shouldn't have to pretend like the first trial never happened.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 11 Apr 2016 @ 7:01am

      Re: am I misunderstanding?

      "Prosecutorial misconduct didn't suddenly make him innocent."

      True. But throwing out the case because of misconduct is important for two reasons. First, the existence of the misconduct brings the propriety of the entire court case into question. Second, there is no other effective means of deterring that misconduct.

      Prosecutors need court victories more than anything else. If shenanigans cost them those victories, they have a very real incentive for being honest.

      reply to this | link to this | view in chronology ]

  • identicon
    Wendy Beal, 7 Apr 2016 @ 6:22am

    Northern Michigan Prosecutorial Misconduct

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2016 @ 7:48am

    The legal system protects its own, as always.

    reply to this | link to this | view in chronology ]

  • identicon
    Tin Foil Hat, 7 Apr 2016 @ 7:49am

    Tyrrany

    The reason the constitution exists is to prevent tyrrany.

    Three SEPARATE branches of government. They're in cahoots.

    They've eroded almost everything in the bill of rights.

    A fair trial that allows the final decision on the validity of the law. A rarity.

    Full immunity for prosecutors and judges means no accoutability for prosecutors and judges.

    Police are exempt from the law and steal whenever they please.

    If it looks like a duck ...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Apr 2016 @ 9:31am

    Self Harm

    America! You did this to yourself.

    True, America is hardly unique with lazy, good-for-nothing citizens that either think the people should not have any 2nd amendment rights, those that think people should just do whatever cops say or that being tough on crime is a good thing.

    Americans have BEGGED on their hands and knees to have their rights destroyed and their lives made a mockery in court & media!

    In a democracy, the people get the government they deserve.
    "Every nation gets the government it deserves."


    https://en.wikiquote.org/wiki/Alexis_de_Tocqueville

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 7 Apr 2016 @ 11:18am

    People like to live in the world of easy tick boxes.
    If you are part of the Justice system you are good people.
    If you are a target of the Justice system you are bad people.

    To protect the image of Justice, the system bends itself backwards to avoid having to punish its own. While there are rules & punishments spelled out, they are very rarely imposed in any meaningful way. People wrongly convicted of crimes, where it has been shown evidence was hidden, lies were presented as fact still are looked at as they are guilty but some technicality got them off.

    We need to stop accepting that the rules are doing what they are claimed to do. They are nothing but puffing up the image, and we have far to many cases where the rules are not enforced on those cogs of Justice who cut corners.

    The cogs of Justice are merely human, imbuing them with all of the forgiveness that the system won't extend to the accused makes them bolder in what they do. They feel above it all and the ends justify the means, because there is no punishment for doing it.

    We need to demand reform, the system isn't policing its own, and in many cases is unfit to sit in judgement of others while ignoring the festering filth it is working from.

    Yes not all Judges are bad, not all lawyers are bad, not all cops are bad.... but how can we have faith in those that are good when those that are clearly bad are given a pass and none of the 'good' guys speak out against it being ignored once again?

    reply to this | link to this | view in chronology ]

  • icon
    Robert (profile), 7 Apr 2016 @ 3:38pm

    Just wait

    If I was on the jury, I vote not Guilty every time now, regardless of the evidence. We can't trust our justice system,since cops, judges and everything is crooked. At least gang members gave ethics

    reply to this | link to this | view in chronology ]

  • identicon
    Whatever, 7 Apr 2016 @ 5:28pm

    Bad faith? There's no such thing as "bad faith"!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Apr 2016 @ 5:44am

    So basically it's good old justice by way of authority.
    "Hey mate, you're the one in handcuffs! You must have done SOMETHING wrong..."

    reply to this | link to this | view in chronology ]


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