Prosecutor Abuse

Federal law allows federal courts to award attorneys’ fees and other expenses to criminal defendants who prove gross misconduct on the part of federal prosecutors. The law — a 1997 amendment sponsored by Representative Henry Hyde, a Republican — is a valuable deterrent to prosecutorial abuse, providing compensation in cases where a court finds the government’s position to be “vexatious, frivolous or in bad faith.”

By “bad faith,” the amendment has always been understood to mean that a defendant could be compensated if the prosecution behaved unethically even when its case was legitimate. But a panel of the United States Court of Appeals for the 11th Circuit rules by 2 to 1 that the law applies only in cases that are clearly unfounded. This makes the government untouchable in any plausible prosecution.

This case was brought against Dr. Ali Shaygan for allegedly dispensing drugs outside the scope of his medical practice. He was acquitted of all charges in 2009, after a four-week trial and jury deliberations of only three hours.

The trial judge awarded almost $602,000 to cover Dr. Shaygan’s lawyers’ fees and expenses and reprimanded the prosecutors, who had threatened a defense lawyer with a “seismic shift” if he asked the judge to suppress statements obtained from Dr. Shaygan in violation of his rights. When the defense lawyer went ahead with his request, the prosecution, in reprisal, increased the number of charges from 23 to 141. The judge, quite rightly, said the government had not acted in “good faith,” in addition to perpetrating other “conscious and deliberate wrongs.”

The Supreme Court should take this case for review, as the defendant has asked. It should reaffirm that a prosecutor’s duty is to seek justice, not victory at all costs, and affirm the intent of the Hyde Amendment. Prosecutors are rarely punished for wrongdoing. Other sanctions like a reprimand from a bar association, are largely ineffective. The amendment is a check against gross misconduct.