When we hear the phrase "witness intimidation" we're likely to think of a gang member who is on trial or about to go on trial and, to evade justice, tries to have key witnesses change their story so the case will collapse.  We hardly ever hear about cases where the prosecutors try to intimidate witnesses.  But it happens.  In an extraordinary proceeding this week in Santa Ana, CA, a federal judge reprimanded prosecutors for contemptible conduct toward witnesses.  This story needs telling.

Here's the gist of the case: William Ruehle was charged with criminal securities law violations.  Mr. Ruehle's defense was that his actions were always made in good faith -- that he did not act with criminal intent.  That's an important aspect of the case.  To take another example that most people can relate to, we all know the tax code is very complicated.  People (including IRS employees) make honest mistakes about it all the time.  Under the law, the government can only make a case for criminal tax evasion if it can persuade a jury that the person accused knew what the tax law required and proceeded to violate it anyway.  

Crucial to Mr. Ruehle's defense were three witnesses whom he wanted to call on his behalf at trial.  They were familiar with his business dealings and would support his good faith defense.  That was the plan anyway. 

In preparation for trial,  prosecutors embarked on an outrageous mission to "flip" or  destroy the defense witnesses.  One lady was fired from her job after prosecutors called her employer and spread innuendo.  Prosecutors then pressured her into pleading guilty to some offense that allegedly took place seven years earlier  -- a very peculiar prosecution under the surrounding circumstances.  And then her plea deal was contingent upon this lady changing her story to support the prosecution, not Mr. Ruehle.  Taking all this in, the judge said he had "absolutely no confidence that any portion of [this lady's] testimony was based upon her own independent recollection of events as opposed to what the government thought her recollection should be on those events." 

And that's just one witness.  It gets worse.

Here, in summary, is how Judge Cormac J. Carney viewed the case:

I have a solemn obligation to hold the government to the Constitution.  I'm doing nothing more and nothing less.  And I ask my critics to put themselves in the shoes of the accused. 

You are charged with serious crimes and, if convicted on them, you will spend the rest of your life in prison.  You only have three witnesses to prove your innocence and the government has intimidated and improperly influenced each one of them.  Is that fair? Is that justice?  I say absolutely not.

Judge Carney proceeded to dismiss the case before the jury could begin its deliberations because the government's conduct was so egregious. 

Some of the defense attorneys in the courtroom said that they had started their careers as prosecutors and that they were well aware that there is a "cloak of credibility" when prosecutors represent events to employers, reporters, and judges.   (Ask yourself what you would think if a prosecutor told you that "Mary Smith is an unindicted co-conspirator in our on-going investigation...") Watching this judge correct a miscarriage of justice, they said, was one of the most remarkable events they had witnessed in their legal careers.  They hoped the judge's ruling would be heard "throughout the country."

The ruling is only about 15 pages, double spaced.  Read the whole thing (pdf).  (Really -- do it this time!)  I was obviously not present during the proceedings in this case, but it is an extraordinary move for a federal judge to dismiss a case, with prejudice, during a trial.  It is my view that the conduct  of the prosecution must have been truly blatant. 

This seems like a true scandal.  In a just world, the prosecutors would now be investigated for criminal witness intimidation and for professional misconduct by bar associations.  Judge Carney's opinion should be reprinted verbatim in law school textbooks to teach future judges to keep their eyes open, to keep an open mind, to be impartial, and to beware of those with a "win-at-all-costs" mentality.

For related Cato work, go here, here, and here.