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