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Prosecutorial Misconduct Leads to Dismissal of Broadcom Criminal Charges

By Henry R. Chalmers, Litigation News Associate Editor – February 11, 2010

Rarely does a judge’s ruling literally leave a trial lawyer breathless. That was the impact, though, of a stunningly forceful and unequivocating ruling, in United States v. Ruehle, read aloud recently from the bench by District Court Judge Cormac Carney, condemning gross prosecutorial misconduct and acquitting Broadcom’s founder and an ex-CFO of criminal charges.


As one of the defense attorneys struggled to tell Judge Carney after the ruling: “I’m in a dangerous position, a lawyer who is breathless. I really—My breath is taken away because [this] truly is a turning point, I believe, that will be heard throughout the country.”


The ruling is garnering attention within certain segments of the legal community, both for its impact on judicial use of supervisory authority and as a warning to prosecutors and litigators of all types when dealing with key witnesses.


History of the Case
Ruehle was one of a series of cases prosecuting alleged stock-option backdating at Broadcom. The case had already made headlines once before. Last year, the Ninth Circuit affirmed Judge Carney’s prior ruling that a corporate officer’s statements to counsel representing both him and his employer are not protected by the attorney-client privilege. SeeAttorney-Client Privilege Issues Continue to Challenge Corporate Internal Investigations.”


This time, Judge Carney used his supervisory authority to throw out most criminal charges due to prosecutorial misconduct. “The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial,” Judge Carney found.


Prosecutorial Misconduct
The court found that prosecutors had violated the defendants Sixth Amendment rights by having intimidated and improperly influenced key witnesses.


For example, when one witness refused to cooperate with the government, prosecutors contacted her employer and caused her to be fired. They also subjected her to 26 “grueling interrogation” sessions, during which they sought improperly to mold her testimony.


Another witness, whom the court described as “a brilliant engineer and a man of incredible integrity,” was forced to submit to 30 interrogation sessions and ultimately was coerced into an “unconscionable plea agreement” pursuant to which he would “plead guilty to a crime he did not commit and pay a ridiculous sum of $12 million.”


Prosecutors even threatened to issue a grand jury subpoena to the 13-year-old son of one defendant and force the boy to testify against his father.


Analysis of the Decision
“This is an extremely unusual decision,” says Prof. Bennett L. Gershman, New York, chair of the Ethics and Professionalism Subcommittee of the ABA Section of Litigation Criminal Litigation Committee.


When asked whether we might be witnessing the beginning of a trend, Gershman acknowledges that “we have seen a handful of cases in the past year in which judges used very strong language to castigate federal prosecutors for serious misconduct.”


Stacey Gottlieb, Phoenix, cochair of the Section’s Criminal Litigation Committee, sees the ruling as reflecting “the court’s concern that there was an effort here to win at all costs regardless of the truth and regardless of justice.”


“Ultimately, the prosecutor’s goal, purpose, and function is to do justice. That does not always mean win,” Gottlieb reminds.


“Intimidation of witnesses is a very under-explored area of the litigation process,” according to Bruce Green, New York, cochair of the Section’s Research Fund Task Force and former cochair of the Section’s Ethics and Professionalism Committee.


“Intimidation of witnesses takes place outside the public view and is hard to capture,” Green notes.


“Given the amount of discretion given to prosecutors,” there are few specific standards guiding their conduct, Green observes.


In Ruehle, “it was not the individual actions of prosecutors, but rather the cumulative effect of misconduct that distorted the truth-seeking process and compromised the integrity of the trial,” Green opines.


Green cautions, however, that “there is certainly no clear line about how many missteps make up a constitutional violation.”


Note: Judge Cormac Carney will be a panelist for a program at the Section’s Annual Conference in New York on April 22, 2010, entitled “Ethical Pitfalls—What Every Civil Practitioner Needs to Know About Criminal Issues in Civil Litigation.”


Keywords: Criminal litigation, ethics, Ninth Circuit


 
Related Resources
  • » United States v. Ruehle, No. SACR 08-00139-CJC (C.D. Calif. December 15, 2009).
  • » Berger v. United States, 295 U.S. 78 (1935).

 

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