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21 January 2011


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Sidney O. Smith III

Not good to mess with Lady Justice, so sayeth a very authoritative voice from Augusta, GA.


(the above is not recommended as a citation in either a supplemental brief or oral argument)


Good for Mr. Holton for doing the right thing. If the US govt can't win convictions by playing the game squarely, they (we) deserve to lose these cases. Paying witnesses, indeed!

I hope you are feeling better soon.
The weather is nasty here, but no crud.


he does look like a mujahideen. Just saying...

William R. Cumming

DOJ has now suffered in the last two decades numerous examples of prosecutorial misconduct. Not sure how this could be remedied. Perhaps a culture of win at all costs somehow permeates the system.


Thank you for posting the docs.

Charles I

There are a lot of prosecutors in my meager experience who will place convictions over Conviction - Justice done, as opposed to winning I dimly recall, was the aim of the adversarial system back in school. Now law enforcement, and the enforcers down at FBI HQ etc are a law unto themselves.

Its like you honourable worthies we so esteem hee, either you're principled and scrupulous or you're not. Ego trumps wisdom and conscience, you're away to the crooked races.

These cases scream for remedy and public remonstrance, if not prosecutor/FBI prosecution itself. People who can have got to take a stand. Here in Canada, the bar on prosecutorial misconduct has been set quite high. A lot our statutory agents only seem to do the minimum their forced to nowadays, but it'll soon be criminal or suicidal to look at 'em sideways if our leaders have their way.

So Good on you Pat, your stock rises every day.

Get well.

The Twisted Genius

Bravo, Mr. Holton! This is why I still have hope for our country. I wonder if we can use the RICO Act against the prosecutors and FBI agents involved in this attempted injustice?


considering the beard, he must be guilty.

from blog posts by the formidable Scott Horton of Harper's on prosecutorial misconduct:

How Prosecutorial Misconduct Helps Criminals Get Off

The USA Today series on the systematic misconduct of federal prosecutors continues today, with an examination of the consequences that prosecutorial misconduct has for criminal defendants...

... One possible outcome of prosecutorial misconduct, by far the most likely, is the conviction of innocent persons. Another possible outcome is that a person who is clearly guilty may have his sentence shaved, sometimes severely. Neither result reflects a reasonable administration of justice, but there is little at risk for misbehaving prosecutors.

An Ethics Meltdown at the Justice Department

USA Today offers an extraordinary multi-part study of prosecutorial misconduct at the Department of Justice over the last decade, under both Democratic and Republican administrations. The stories generally show prosecutors out to support the political agendas of their bosses. They also indicate a systematic evasion of the requirements of prosecutorial ethics and a collapse of ethics training and enforcement within the Justice Department, where an ethos of “victory at all costs” now controls...

More Prosecutorial Misconduct in the Al-Arian Case

The Associated Press reports:
The Justice Department may have hoodwinked a defendant in a high-profile terrorism case into thinking his plea bargain would protect him from further prosecutions, a federal judge said Monday. Monday’s hearing in U.S. District Court was the latest in which Judge Leonie Brinkema questioned the Justice Department’s tactics in pursuing a criminal contempt case against former professor Sami Al-Arian, once accused of being a leading Palestinian terrorist...
The Justice Department’s handling of the Al-Arian case should be studied as a textbook case of prosecutorial abuse. The prosecutor handling the case, whose honesty and integrity were directly assailed by the court, is named Gordon Kromberg. He’s been profiled in the Wall Street Journal’s law blog and the Washington Post, both noting his tendency to disparage Arab culture and Islam in court submissions and public statements.

...Kromberg has been lionized by people those who wield the term “Islamofascist,” such as Daniel Pipes, who writes “no U.S. prosecutor has a more valiant and courageous record of opposing radical Islam than Gordon Kromberg.”...

My hunch is that since (political) careers are built on 'successful' (as in numerous 'won' cases) careers as prosecutors, there is an apparent incentive for a "victory at all costs" attitude.

Now this isn't a sports match. As a result of justice lives are wrecked and people put to jail (or death) - better for a good reason. There is no place for such personal ambition or political hackery in face of the grave consequences.


If by recompense, you mean the ability of the defendant to bring a civil suit against the prosecution, that won't happen.

The only recompense to the defendant could possibly come in the form of an enraged trial judge directly ordering financial sanctions against the government which could include attorney's fees.

For justice, I would advise the defendant to contact the bar association of which the government attorneys are members. State bars set the ethical standards for their members and those standards are absolutely independent of the attorney's employers standards, in this case the federal government.

No crud here at all, but minus 22 yesterday morning.


I expect we will soon see far fewer of these cases; not because they don't occur nor because of outrage on behalf of those with integrity, but because of the standards set by America's great victories, like the one at Guantanamo Bay, (which Obama still can't or won't figure out how to close)

John Yoo is still a member of the Pennsylvania bar and is still teaching law in UC Berkley.


David Addington is being well paid at the Heritage Foundation:

Attorney General Gonzales didn't enforce ethics nor has he been disbarred. At least he's not teaching law school.


Failing to turn over exculpatory evidence is fairly common experience, you either don,t get it at all or it comes over the transom 2 days before trial.

I think this happens for a couple of reasons but most basically because prosecutors tend to believe with absolute certainty in the guilt of the Defendant. With that belief, they don't tend to see anything as legitimately exculpatory, but merely evidence that defense counsel can use to frustrate justice.

Also, if you get it late you don't have it for plea negotiations.

More troubling, surely 14k is "something of value" I.e. Witness tampering, but so is ransoming the witnesses freedom, as in US v Singleton, but it happens every day.


Both confusedponderer and Fred make the case more eloquently than I would, due to sloth and anomie.

Scott Horton's "No Comment" blog is fabulous for its documentation of federal prosecutorial misconduct, and the virtual impunity that the perpetrators have under the current regime, though "self-regulation" in a Dostoevskian sense can still surprise: Attorney in Probe of Stevens Case Commits Suicide.

The proof of the pudding for me, though, is that that moon-faced bastard John Yoo still walks free, and unashamed, despite his hideous role as torture enabler: Bush: Waterboarding legal ‘because the lawyer said it was’.

As a lawyer myself Yoo's crimes have a special sting, ditto execrable David Addington, now enjoying Wingnut Welfare as noted by Fred, hopefully because no self-respecting law firm would hire such excrement.

Quis custodiet ipsos custodes? In present-day America, nobody.

Sidney O. Smith III

How right you are, WRC, how right you are. You are a Virginia moralist with an extraordinary ability to cull through the mind boggling levels of government regulations and highlight the ones that most effect our lives. You certainly represent your State well.

The role of a prosecutor is not to win at all costs but to administer justice. By doing so, the people will continue to trust the judiciary. The spirit of this idea is deeply imbued in the models of professional conduct at both the federal and state levels. And without this approach, people will lose faith in the judiciary and the fabric of our nation will continue to fray.

Prosecutors should put all the evidence on the table. Shows confidence, so much so that if often rattles the other side.

I know very little about this case but something is amiss, at least enough to warrant a very serious hearing. And I just don’t see how the “harmless error” approach can apply in this particular incident.

Perhaps, I am reading too many of Walrus’ comments warning us of the rise of a national police state, but it does appear that the State has expanded mightily in the last few years, in part, due to irrational fears and, in another part, due to the printing of money. History has proven time and time again that centralized governments, even if portrayed as progressive, often commit the most horrendous of crimes.

And, at least from my perspective, I am seeing that the State, generally speaking, has become much more aggressive against American citizens and, consequently, more and more people are falsely accused due to overreaching by law enforcement and extremely zealous prosecutors (and I say that as someone who at heart is a prosecutor).

As we speak I am aware of one person who is sitting in jail and, from what I can tell, wrongly convicted due to overly aggressive police tactics.

I mention the following in part simply to present an different angle of our national pathos, but unfortunately, this man wrongly convicted and now sitting in jail doesn’t satisfy the personality profile to become a cause celebre among Huffington Post progressives. He is rural Southern, white, bad teeth (but not due to meth). Southern evangelical (of which I am not). Plus, he served two tours in Vietnam, so you can only imagine what that crowd was saying about him back then.

I sometimes wonder if certain progressives ultimately desire a eugenics program even among those wrongly convicted. They just as soon see this guy waste away.

Not talking about the likes of Greenwald of course. But I am not altogether certain he is progressive. He has moved on to something else and, while I don’t agree with him on all points, he is worth following simply to see where he ends up in terms of his views of a over centralized federal government. Raimondo claims he is libertarian, but a few on the left claim him as well.

In any event, here’s hoping our judiciary in the coming days is as heroic at that federal judge who was murdered recently in Arizona. As I understand it, he died because he stood in front of someone else to take the bullet. At his death, he reached the pinnacle of individual heroic sacrifice, shedding his blood for others.


The lack of a feedback loop which penalizes the abusive government organization enables this kind of behavior. Ever deal with the IRS? Citizens are considered guilty and have to prove their innocence. When the investigation is over and the citizen exonerated, the IRS moves on to the next victim while the last pays his own legal bills. But I'm sure the other "big government" programs will be much more principled.

William R. Cumming

Thanks SOS for the compliment. Hope I live up to it!


Brady vs Maryland requires the release of exculpatory evidence. The Brady request is in every defense discovery motion ever filed. This dereliction is, well, waterboardable!

Patrick Lang


Seda, IMO, is a harmless person of good will toward all. He has his own Islam which is remarkably pantheistic and Sufi in a way completely unacceptable to Al-Qa'ida. pl


Sidney: Pete Seda was let out of jail pending motions on his conviction being overturned on the 20th of January. The judge ordered him returned to Portland, Oregon.

Patrick Lang

Grimgrin et al

Yes, but this is not over. pl

Sidney O. Smith III


Thank you for the info. All one has to do is spend two minutes reading the pleadings and the radar clicks on

The word “chastened” came to mind, particularly after reading the following from the article you referenced:

“Wednesday's hearing was markedly different from a month long series of hearings and court filings in 2007, when prosecutors vehemently argued against Seda's release while awaiting trial after his return from the Middle East because they considered him a flight risk.

Assistant U.S. Attorney Kelly Zusman on Wednesday gave no argument against Seda's release, other than to point out that prosecutors still consider him a flight risk.

Federal court officials, however, did not label Seda a flight risk in a report prepared for the hearing, Matasar said in court.”

-----end of quote----

Don’t know enough details about the case but, at least initially, you have to credit the US Attorney who realized he had a problem on his hand when he refused to sign the check to pay the witness, and then he immediately notified the defense that problems loom. Says much about the man.

At least as I see it, the response of the US Attorney’s Office was an admission that the Government’s failure to turn over exculpatory evidence -- in addition to providing altered investigative reports to the defense -- constituted an intentional act of prosecutorial misconduct.

Whether such misconduct was so egregious as to warrant more than the granting of new trial remains to be seen.

Regardless, you have hand it to the Oregon press and people. After reading a few articles from Oregon newspapers, there seems to be great interest in this case among the citizenry, and the reporting seem refreshingly independent of pressure from those who desire to see people prosecuted simply because their views differ from the oligarchy running the federal government.

If only those around the rest of the nation would follow Oregon’s lead…


So do you think that if it is thrown out, that the prosecutors will try again? Or will the prosecutors have shafted their own pooch?



My comment was made in jest. But while we are at it, let me just say that most Iranians are vehemently against the Mujahideen. Logic would tell me though that if one was being accused of being a supporter of the Mujahideen, let alone one, the least one can do is shave.


One expects Mr. Holton to be punished for his behaviour. Demoted, investigated, made an object lesson for other Government attorneys who might harbour similar beliefs in justice.
So to answer PL's rhetorical question, yes,
expect retribution to fall upon Mr. D. Holton.


No good deed goes unpunished.

Based on experience, I would expect that the DoJ attorney who let the cat out of the bag will be punished and have his career truncated.

You are not expected to uphold the law, you are expected to produce a desired result. If the law is upheld as well, then that is a bonus.

Evidence for this statement may be found in a perusal at almost any of the cases cited in "The Innocence Project".



I was jesting as well. Maybe also a tad too dry.

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