The National Attorneys General Training & Research Institute

The National Attorneys General Training & Research Institute The National Attorneys General Training & Research Institute

CEPI Newsletter July 2019

This monthly compendium of news reports about corruption and ethics issues is brought to you by the Center for Ethics and Public Integrity (CEPI). Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute express a view as to the accuracy of news accounts or affirm any position taken by the authors of the hyperlinked articles.

Corruption

State

Attorney Arrested, Indicted After Being Accused of Forging Judge’s Signature: Georgia criminal defense attorney Elizabeth Vila Rogan has been charged in state court with first-degree forgery after she allegedly signed a judge’s name on a court document.

Prominent Cleveland Lawyer Who Called Witness in Corruption Case a Snitch Withdraws from Case: In Cleveland, a defense attorney who admitted to sending a letter calling a witness against his client a “snitch” has withdrawn from a corruption case being prosecuted by the Ohio Attorney General’s Office and local prosecutors. Roger Synenberg’s now-former client will be required to hire a new attorney.

Convicted Ex-Williamsport Cop Entitled to Pension in 2011 Corruption Case, State Court Rules: A former Williamsport, Pennsylvania police officer is entitled to his pension after his obstruction of justice conviction was vacated and his tampering with public records convictions were affirmed. Thomas H. Ungard was first convicted in 2011 after an investigation that stemmed from him using a forfeited pickup trick in 2016 to go on a Canadian fishing trip with the then-police chief.

Federal

Congressman Duncan Hunter’s Wife Flips, Pleads Guilty to Misusing Campaign Funds: Margaret Hunter has pled guilty to campaign finance-related charges and agreed to cooperate with the government. Her husband, California congressman Duncan Hunter, has pled not guilty and previously suggested that his wife was to blame for any improper use of funds. According to the indictment, however, some of the funds at issue were spent by Duncan Hunter to engage in extramarital relationships.

Katherine and Louis Kealoha are Convicted of Conspiracy and Obstruction: In Hawaii, former Honolulu Police Chief Louis Kealoha and his wife (and former Honolulu deputy prosecutor) Katherine Kealoha have been convicted after a month-long trial. Some of the charges stemmed from a staged theft of a mailbox at their home more than six years ago, which was an attempt to prevent disclosure of Katherine’s theft of money from her now-99-year-old grandmother. Two former Honolulu police officers who assisted them were also convicted in what local press called “a stunning end to one of Hawaii’s most scandalous corruption and conspiracy trials.” The Kealohas face a second trial on related charges in October, and Katherine has also been charged with drug crimes.

Feds Tell 2nd Circ. McDonnell Can't Save Skelos This Time: Federal prosecutors in New York have urged the Second Circuit to affirm the convictions of former New York State Majority Leader Dean Skelos and his son Adam. The Skeloses were convicted again after the court of appeals vacated an earlier conviction because jury instructions were inconsistent with the Supreme Court’s subsequent decision in McDonnell v. U.S. In the second trial, the government argues, the jury instructions met the Supreme Court’s new requirements.

Puerto Rico Governor Ousts Treasurer Amid Reported FBI Probe: Puerto Rico Governor Ricardo Rossello asked for the immediate resignation of Treasury Secretary Raul Maldonado hours after Maldonado spoke with the press about a federal corruption investigation into his own department. In what Bloomberg News characterized as “an extraordinary exchange of insults,” Maldonado’s son responded to his father’s termination by suggesting that Rossello had been engaging in improprieties, an allegation to which Rossello replied by “questioning the mental state” of the son. These events follow an arrest less than a month earlier by the FBI of the director of the Senate Office of Government Affairs and two contractors.

Ethics

Justice Department Lawyer Defends Herself After Viral Video on Child Migrant Treatment: In a case that touches upon the role of career government attorneys in a highly-charged case, an attorney at the federal Office of Immigration Litigation is facing widespread criticism for arguments she made during a Ninth Circuit oral argument about the government’s legal obligations to detained migrant children. The New York Times wrote about death threats to the government attorney in an article that provided information about where she grew up, and another piece described her as being “named and shamed” by a variety of people.

Harvard’s First Black Faculty Deans Let Go Amid Uproar Over Harvey Weinstein Defense: At least in part because of Harvard Prof. Ronald S. Sullivan’s decision to represent Harvey Weinstein, the movie producer accused of several sexual assaults, Harvard removed Sullivan as a faculty dean for an undergraduate student house. Students had protested Sullivan’s deanship, arguing that they would not feel comfortable reporting sexual assaults to someone who chose to defend a man accused of such crimes. The New York Times later published an opinion piece by Sullivan calling the decision “wrong,” and several commentators in a variety of publications agreed. While this is not the standard ethics conflict, it provides a notable contrast to the much-criticized argument by the Office of Immigration Litigation lawyer discussed above, who presumably was assigned the case she argued—unlike Sullivan, who chose to take Weinstein on as a client.

Why Is Texas Stopping Rapid DNA Tests in Courts? It Jeopardizes Cases, State Board Says: The Texas Forensic Science Commission has halted the use of Rapid DNA in Texas after a vendor “jeopardized the integrity of ongoing criminal cases.” That vendor was described by the Houston Forensic Science Center’s chief executive as “aggressive in marketing” its product directly to law enforcement officers as “an investigative tool,” which resulted in prosecutors being unaware of evidence that they were required to disclose to the defense. The same company was criticized for appearing to push for legislation in Arizona that would have made it—while excluding its primary competitor—the beneficiary of a potentially lucrative state contract.

Jones Day Beats DQ, Judge Doesn't in Calif. Homeless Case: In a decision addressing motions to disqualify counsel and to disqualify the trial judge, a federal court has granted a request by three cities in California to disqualify the trial court judge who made comments about them in a separate case. District Judge David O. Carter made comments in that separate case that “would sway a reasonable observer based on appearances to conclude that the district judge could not be objective and impartial with respect to the” three cities who asked for him to be removed.

Connecticut Will Be First State to Collect Prosecutor Data to Study Racial Bias: Connecticut has passed a law that will require state prosecutors to compile data—including the defendant’s race, ethnicity, sex, and age—about case outcomes, including prison time, plea bargains, and diversionary programs.

Atlanta Judge Tried to Cover Up Her Chronic Absenteeism, Panel Alleges: Atlanta Municipal Court Judge Terrinee Gundy is facing ethics charges that accuse her of being absent and tardy, and lying during the investigation into her actions. Allegations include that she failed to provide hearings to at least six defendants, which resulted in them being unlawfully incarcerated.

Encounter with Client in Courthouse Stairwell Gets Manhattan Attorney Suspended: David G. Scudieri has been suspended from the practice of law in New York because he engaged in a sexual relationship with a client, who reported the relationship to the grievance committee because she was dissatisfied with the results he obtained in her case.

Dershowitz Wants Boies Schiller Booted from Defamation Suit: Harvard Law Prof. Alan Dershowitz has asked a New York federal judge to disqualify Boies Schiller Flexner LLP from representing a woman who says that he molested her when she was a child. Dershowitz argues there were "multiple related incidents of unethical conduct by the Boies Schiller firm that have caused severe conflicts and have implicated the advocate-witness rule." In his motion, Dershowitz catalogs what he characterizes as six “instances of questionable ethical conduct by” the firm, including Boies’s alleged conflicts in representing both The New York Times and Harvey Weinsten, and his dual roles with Theranos. The firm also represents multiple defendants in the “Varsity Blues” case, and has secured their consent and the permission of the court to move forward with those representations.

Panel: Ex-Pa. Prosecutor Who Investigated Penn State Scandal Should be Disciplined: The Pennsylvania Supreme Court’s Disciplinary Board has recommended that the prosecutor who lead the successful prosecution of Jerry Sandusky be suspended for a year and a day. The decision arose from a complaint that Frank Fina improperly gathered testimony from Penn State University’s then-general counsel Cynthia Baldwin, causing her to violate attorney-client privilege. (The board previously recommended that she be publicly censured.) In Fina’s case, the board rejected a finding by a three-lawyer disciplinary panel that he had not violated professional rules.

Defense-Friendly Evidence Rule Riles Va. Prosecutors: Prosecutors in Virginia have objected to a novel ethics rule that would require them to highlight defense-friendly evidence in case files. Prosecutors worry that an inability to predict what might be useful to the defense in discovery might result in them facing bar referrals and sanctions, and would unfairly increase their workload. The U.S. Department of Justice has argued that the proposed rule would be “impossible” to implement and potentially result in the discipline of “well-intentioned” prosecutors. The proposed rule change was born of an ethics opinion by the Virginia State Bar—now withdrawn—that concluded that a prosecutor had an ethical duty to identify a known exculpatory needle in a discovery haystack.

Tools

Beneficial Ownership Registry Coming to the United States?: The House Financial Services Committee has recommended that the House approve legislation creating a beneficial ownership registry that federal and state law enforcement agencies could access to determine the true owners of corporations. The American Bar Association opposes the beneficial ownership disclosure requirements in the ILLICIT CASH Act, complaining that attorneys representing clients in real estate transactions should not be required to “report the identity of their clients, the amount and source of funds used by clients in real estate transactions, and other confidential client information.” (As the ABA president acknowledges later in the letter, the identity of a client is generally not deemed confidential by courts.)

International

Leaked Messages Raise Fairness Questions in Brazil Corruption Inquiry: The Intercept has received and published hacked messages between members of Brazil’s Car Wash/ Lava Jato prosecution team, which convicted former President Luiz Inácio “Lula” da Silva on corruption and money laundering charges, and between a prosecutor and a judge. The messages, at least some of which appear to have been illegally obtained from a cellphone belonging to Deltan Dallagnol, the chief prosecutor in case, reveal messages among prosecutors about the strength of the case, and messages between Dallagnol and now-Justice Minister Sergio Moro, the judge who oversaw the investigation and trial of Lula. Harvard Prof. Matthew Stephenson, at the Global Anticorruption Blog, thoughtfully explored through two posts whether the messages are improper under Brazilian law.

Corruption Crisis: How Criminal Politicians Poisoned the Dominican Republic: In an article that details issues with public safety and the criminal justice system in the Dominican Republic, an author argues that public corruption is to blame for many of the country’s institutional failings.

Sara Netanyahu Admits to Misuse of Public Funds: The wife of Israeli Prime Minister Benjamin Netanyahu, Sara, has admitted to misusing state funds and been ordered to pay $15,000 in fines and costs. The prime minister himself is facing potential charges of bribery, fraud, and breach of trust.

American Head of the SFO Pulls the Plug on Hopeless Cases: The head of the U.K. Serious Fraud Office, Lisa Osofsky—an American who previously served as an assistant U.S. attorney and FBI deputy general counsel—has closed some cases she inherited from her SFO predecessor that “weren’t going to go anywhere.” Osofsky is also looking at using cooperating witnesses in her cases, an approach common in the United States that is statutorily permitted but apparently rarely used in the U.K.

English Private Prosecutions Are Now Too Important to Ignore: In other U.K. news, private prosecutions—criminal cases charged by private persons, which can result in severe punishments—are apparently on the rise. These suits require the private attorneys to abide by the same ethical obligations facing their public prosecutor counterparts, and can be taken over by the Director of Public Prosecutions at any time.


Amie Ely is the Director of the Center for Ethics & Public Integrity and the Editor of the CEPI Newsletter and may be reached at 202-326-6041. The CEPI Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail aely@naag.org.

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