Prosecutorial misconduct, the gift that keeps on giving...

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Just when you think you've run out of crap to write about comes another instance of flagrant prosecutorial misconduct, the icing on the cake here is that we're already familiar with some of the key players yet somehow the Miami Herald forgot to mention their names.  From the Herald article...

Two MIA “fuel farm” defendants get new trial

By DAVID OVALLE

Two defendants in the Miami International Airport fuel-farm corruption case deserve new trials because a judge failed to give proper instructions to the jury, an appeals court ruled Wednesday.

Cliff Berry Inc., and the company’s former environmental director, Jeffrey Clint Smith, were convicted at trial in December 2008 of first-degree grand theft. The accusations: They pilfered huge amounts of fuel from the airport’s storage depot.

Smith had been free on bond while awaiting the decision. “This news in the new year is extremely welcome from him and his family,” Smith’s attorney, Michael S. Pasano, said. “He had always insisted on his innocence.”

The Third District Court of Appeal also ruled Wednesday that Miami-Dade Circuit Judge Jacqueline Hogan Scola failed to quickly hold a hearing to question prosecutors about a key witness who changed his testimony.

The indictments were part of a far-reaching probe that uncovered several racketeering schemes at MIA. In all, more than 20 defendants pleaded guilty.

As for the company and Smith, investigators alleged that company trucks were supposed to haul away wastewater but drove off with jet fuel instead, and later sold it to yacht owners.

At trial, defense attorneys insisted their clients believed they had the “good faith” right to haul away the contents of a fuel-farm tank.

Scola refused defense attorneys’ request that the jury be given instructions outlining the “good faith” defense.

The Third DCA ruled Wednesday she should have allowed the jury instruction because “the evidence at trial was sufficient to suggest the good faith theory.”

Smith was sentenced to 10 years in prison. The company was ordered to pay $1.23 million and was barred from having any government contracts. The company’s former president, Cliff Berry II, was acquitted.

Another legal issue revolved around defendant Brian Schneir, a former supervisor at ASIG Fueling, another company that prosecutors said aided in the theft of the jet fuel.

Schneir pleaded guilty to organized fraud and agreed to spend two years in prison in return for testifying against Smith and Cliff Berry Inc. However, at trial, Schneir changed testimony he gave in a deposition about the dollar amount of fuel stolen and the date the scheme began.

Appellate lawyers argued that Miami-Dade prosecutors failed to quickly inform the defense of the change in Schneir’s testimony. Third DCA Judges Richard J. Suarez and Barbara Lagoa said Scola should have automatically conducted a hearing to see if prosecutors violated rules regarding turning over evidence to the defense.

A third appeals judge, Leslie Rothenberg, disagreed, saying the two defendants were convicted “by overwhelming evidence.”

Scola later ruled that prosecutors did not violate any rules. After prosecutors moved to revoke Schneir’s plea deal, saying he lied before testifying at trial, Scola gave him 12 years in prison.

Ok, so besides the judge screwing up and not allowing the jury instructions to outline the "good faith" defense, there's one other critical problem, the states main cooperating witness changed his testimony before the trial, problem is that the prosecutor knew that the witness had changed his critical testimony yet decided not to tell the defense attorneys about it!  From the article...

Appellate lawyers argued that Miami-Dade prosecutors failed to quickly inform the defense of the change in Schneir’s testimony. Third DCA Judges Richard J. Suarez and Barbara Lagoa said Scola should have automatically conducted a hearing to see if prosecutors violated rules regarding turning over evidence to the defense.

RUT RO!  So the prosecutor knew after his key witness was deposed that his testimony had changed before trial yet he forgot to let the defendants know and in essence covered this critical fact up?  Who could this unnamed prosecutor be?  Why would the Herald write this story accusing the prosecutor of misconduct yet leave out the guys name?  Any guesses as to who this guy is?  Perhaps this photo will help jar your memory...

Richard Scruggs

That would be none other than our favorite ex public corruption prosecutor Richard Scruggs!  You all remember Mr. Scruggs from his stellar performance during the Michelle Spence-Jones mess don't you?  Throughout that debacle Mr. Scruggs hid evidence, coerced witnesses and downright lied to witnesses about evidence he had in his possession in order to get them to say what he wanted.  So the question that begs to be asked is why the hell did the Herald not name Scruggs in the article?  We were able to identify the mysterious prosecutor in this case only after reading the actual appeal, if you have the time, check it out...

Prosecutorial Misconduct Cliff Berry Inc and Jeffrey Clint Smith vs the State of Florida

Carey-Schuler

Now, who's this other player in this fuel farm corruption case that goes unnamed in the Herald article?  That would be none other than former county Commissioner Barbara Carey-Schuler, the same ex commissioner that played a key role in both getting City of Miami Commissioner Michelle Spence-Jones indicted then through changing her testimony also helped get her case dismissed.  For those of you with a good memory, you might remember Carey-Schuler as the commissioner that was buddy buddy with that crook Oscar Rivero, who was practically a fixture in her office, that was responsible for stealing millions of dollars that were meant for public housing only to build himself a mansion in South Miami.  Funny how her name keeps coming up in this high profile public corruption cases yet somehow she never gets charged?

Regardless, just another instance of a dirty prosecutor who's resorted to obtaining convictions by any means necessary even if it means breaking the very laws he swore to uphold and another black eye for our local state attorneys office.  Oh well...

Prosecutors gone wild. An outrageous instance of prosecutorial misconduct in the Casey Anthony murder trial.

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Before we get started, I want to make one thing abundantly clear.  I absolutely loathe Casey Anthony, if for nothing else because of the way she carried on during the month after her daughters untimely death.  While I do believe she had something to do with her daughters death, I think it was a stretch to get anyone to believe that she was guilty of the crimes the prosecutors charged her with as did the jury who ultimately found her not guilty of first degree murder and spared her a possible death sentence.  With that said though, Ms Anthony, like anyone else charged with a crime no matter how heinous, entitled to have her day in court with the rights provided to her by the constitution.  Regardless of how horrendous the allegations against her were, law enforcement and the prosecutors still have to play by the rules, especially when it comes to exculpatory material or as it's often called, Brady Material.


Now, for those of you who followed the Anthony murder trial, you'd know that one of the prosecutions most damaging allegations against Anthony was that she googled "chloroform" 84 times during the time her daughter went "missing".  The prosecution implied to the jury that since she googled "chloroform" so many times that she must have therefore used chloroform in some way to kill her daughter.  A bit of a stretch perhaps, but it was one of the prosecutions strongest weapons against Anthony in an otherwise circumstantial case.  The prosecution came to this conclusion through a forensic computer expert named John Bradley, from the New York Times article...

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

Ok, but at some point during the investigation Mr. Bradley comes to another conclusion about this google search for "chloroform"...

Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.


The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

If he immediately alerted prosecutors and the police then why the hell didn't we or anyone else here about this during the trial?

“I gave the police everything they needed to present a new report,” Mr. Bradley said. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of accessibility to the data.”

No kidding?  

Mr. Bradley, chief executive of Siquest, a Canadian company, said he even volunteered to fly to Orlando at his own expense to show them the findings.

Yet somehow the prosecution never had Mr. Bradley come down and correct his testimony, interesting.

Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches.


“The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”

There you have it.  Even if Ms. Anthony was found guilty of all the charges against her, this instance of the prosecutors withholding exculpatory evidence would have been enough to get the verdict against her thrown out.  How the hell do these guys feel they have the right and the power to play with peoples lives like this by withholding crucial evidence like this?  This type of behavior simply highlights the "win at all costs" attitude that we've seen time and time again by morally and ethically challenged prosecutors and police.  This instance of prosecutorial misconduct is no different than Miami Dade county prosecutor Bill Kostrzewski sitting on crucial exculpatory evidence in the Bernardo Barrera mortgage fraud case (evidence that the state to this day claims doesn't exist), prosecutor Richard Scruggs sitting on exculpatory evidence in the Michelle Spence-Jones case or even worse, Prosecutor Mike Nifong's behavior in the Duke Lacrosse scandal.

Consider now for a moment what the consequences of withholding this evidence from the jury in the Anthony murder trial could have been, Casey Anthony being convicted and sentenced to death.  Is that right?  The prosecutors conducting themselves in this manner to get a conviction by any means necessary?  Think about this most egregious example of prosecutorial misconduct next time someone you know that's run afoul of the justice system tells you that the cops and prosecutors have made up evidence or are trying to railroad them, maybe you'll think twice.  Or how about the allegations of misconduct by the prosecutors and investigators involved in the Plantation cops mortgage fraud trial?  Doesn't seem to far fetched now, does it? 

Shame on the prosecutors and the law enforcement officers involved in this mess.  In a perfect world prosecutors Linda Drane Burdick and Jeff Ashton should be disbarred and criminally prosecuted for their behavior as should any other prosecutor who exhibits the same pattern of behavior. 

So you think you've been screwed over by a less than honest prosecutor?

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Got a horrible story about a prosecutor screwing you over?  Perhaps one where the prosecutor hid exculpatory evidence or maybe fabricated evidence?  I thought I'd heard everything till I heard the story of John Thompson, a man convicted of murder who subsequently spent 18 year in prison, most of them on death row, only to be exonerated by DNA evidence nearly 17 years after he was arrested.  What makes it worse is that he successfully sued the New Orleans district attorneys office and won an 14 million dollar judgment only to have it overturned by the Supreme Court.  He tells his story most eloquently in last weeks New York Times...

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

Because of that, prosecutors are free to do the same thing to someone else today.

I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.

They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.

My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.

After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.

I remember the judge telling the courtroom the number of volts of electricity they would put into my body. If the first attempt didn’t kill me, he said, they’d put more volts in.

On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary — the infamous Angola prison. I was put in a dead man’s cell. His things were still there; he had been executed only a few days before. That past summer they had executed eight men at Angola. I received my first execution date right before I arrived. I would end up knowing 12 men who were executed there.

Over the years, I was given six execution dates, but all of them were delayed until finally my appeals were exhausted. The seventh — and last — date was set for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in from Philadelphia to give me the news. They didn’t want me to hear it from the prison officials. They said it would take a miracle to avoid this execution. I told them it was fine — I was innocent, but it was time to give up.

But then I remembered something about May 20. I had just finished reading a letter from my younger son about how he wanted to go on his senior class trip. I’d been thinking about how I could find a way to pay for it by selling my typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr. is graduating from high school.” I begged them to get it delayed; I knew it would hurt him.

To make things worse, the next day, when John Jr. was at school, his teacher read the whole class an article from the newspaper about my execution. She didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson about making bad choices. So he learned that his father was going to be killed from his teacher, reading the newspaper aloud. I panicked. I needed to talk to him, reassure him.

Amazingly, I got a miracle. The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.

As a result, the armed robbery conviction was thrown out in 1999, and I was taken off death row. Then, in 2002, my murder conviction was thrown out. At a retrial the following year, the jury took only 35 minutes to acquit me.

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

If you're so inclined, you can read the entire Supreme Court opinion here.

The states bribery trial against Michelle Spence-Jones STINKS! The Prosecution rests and a few words about our soon to be recalled Mayor, Carlos Alvarez.

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We learned through our commenters and our colleagues over at Investigation Miami that the prosecution rests today in the suspended City of Miami commissioner Michelle Spence-Jones bribery trial. The state through prosecutor Richard Scruggs did it's best to convince Judge Rosa Rodriguez and the jury that Mrs. Spence-Jones was indeed guilty of taking a bribe from two prominent developers in exchange for her vote on an item that was to come before the commission. Unfortunately for the state, the case they presented against Spence-Jones is so weak that the Judge went so far as to remark...

"I’m finding it difficult to understand the state’s theory in all this. What was the corrupt intent? I want to know that...Ultimately, the money, whether her fingerprints are there or not, the money did not go to her personally,"

You're trying a bribery case and you can't prove the alleged bribe went to the person you've charged?! Is there any doubt considering the weak case the states put up that the jury is going to find Spence-Jones not guilty?

Regardless of her guilt or innocence, the prosecutor in this case has done such a piss poor job in putting this case together that there is no way a jury is going to come back with a guilty verdict. As we discussed in the past, the state obtained the most damaging testimony against the commissioner through misrepresenting crucial facts to a key witness in order to elicit the testimony they needed to indict Spence-Jones, what's worse is that the same prosecutor did the exact same thing with a key witness against Spence-Jones on her other criminal case. Is this an isolated case of a rogue prosecutor who engages in all sorts of prosecutorial misconduct in order to win a convictions by any means necessary or is this a disturbing pattern of behavior that is rampant at the State Attorneys Office? Let's not forget that what ASA Scruggs has done throughout both Spence-Jones prosecutions is no different than what his colleague ASA Bill Kostrzewski has done throughout one of the mortgage fraud prosecutions that we've discussed at length. After hearing of the prosecutors misdeeds, why hasn't the state attorneys office taken some sort of action against them? Why are these morally and ethically bankrupt prosecutors allowed to continue practicing and destroying peoples lives with these cases based on total bullshit? You would think that once the prosecutor discovered that the testimony that his case was based on was fundementally flawed that he would have immediately dropped the charges, but no, instead he redoubled his efforts to bring in a guilty verdict. Whenever I see this kind of behavior from a prosecutor, I'm always reminded of this quote from the author of the Justice Building blog...

"Trying a defendant that a prosecutor knows is innocent, or even bringing to trial a person that the prosecutor knows there is not sufficient evidence to justify a conviction is an offense so odious to the American system of justice that prosecutors who engage in such abuse should be referred to the bar for disbarment. The supervisors who approve of such conduct should be disbarred as well."

I couldn't have said it better myself. We can only hope that both the state attorneys office and the Florida Bar take action against the prosecutor once this case is over as well as address the arrest warrant from Costa Rica for Mr. Scruggs once and for all.

Now, moving on to the Mayor of Miami-Dade County, Carlos Alvarez. I listened to Mr. Alvarez try to defend himself against the recall campaign on a radio talk show today, the most interesting defense he brought up was that this was the only time a politician was being recalled that wasn't indicted or being accused of corruption or any other illegal acts. He went so far as to say that the bankers who were responsible for the real estate bubble and subsequent economic meltdown have gone unpunished while he's being recalled for doing nothing wrong! I have a huge problem with this proposition, forget about the fact that Alvarez and his cronies blew tens of millions of dollars of taxpayers money, forget about the fact that despite the worst economic conditions since the great depression Mr. Alvarez still gave record pay increases to his cronies and completely disregard the fact that he increased property taxes. Take this "bankers got away while I'm being recalled" proposition for a moment, since Mr. Alvarez seems to think the bankers got away with causing the real estate and economic meltdown, why the hell didn't he do something about it? Does anyone remember the Mayor's heralded "Mortgage Fraud Task Force"? If Mr. Alvarez was so concerned with "bankers getting away", why didn't he focus his task force on investigating and prosecuting the bankers that were creating the financial instruments that spawned the rampant real estate and mortgage fraud throughout our county? What did we get instead? Low level prosecutions of straw buyers and mortgage brokers through a series of bullshit cases put together by cops who couldn't even execute their own mortgages properly let alone correctly investigate a complicated mortgage fraud case. Mr. Alvarez, bankers got a way with destroying our economy and real estate markets because of people like you who were either asleep at the switch or just didn't give a shit, people who were two busy basking in the glory of self aggrandizing press releases and media appearances that boosted their own image yet did nothing to fight the epidemic that was destroying or economy.


See ya later Carlos, don't let the door hit you in the ass...

Happy Valentines day and another foreclosure mill gets SLAMMED in court.

Doesn't that seem like an appropriate Valentines day card for the wife beating mortgage fraudster we discussed last week?  Beat the woman once and get charged while you're sitting in jail for your nefarious mortgage fraud dealings then get charged for beating her again when you get out of jail on not one but two different bonds without having either of them revoked.  Even stranger, somehow all the charges stemming from the two domestic violence charges get dismissed less than a month later.  Does any of that seem strange to you?  Check our comments section from last Friday, at least one of our readers caught on to what was really going on.  We'll discuss in depth a little later.


Now, let's get back to mortgage fraud, same old ingredients, fake documents, fraud, foreclosed property, etc, except this time the fraud is coming from the other side of the table.  Check this amazing story in the Palm Beach Post over the weekend.  We have attorneys from foreclosure mill Ben-Ezra & Katz lying to the court, misleading the court by filing bogus paperwork and misrepresenting the facts of a case...

A day after federal mortgage giant Fannie Mae fired the prominent law firm of Ben-Ezra & Katz, a Miami judge found the firm's founding partner, Marc Ben-Ezra, in contempt of court for filing "sham" foreclosure documents and "wasting the court's time."

Miami-Dade Circuit Judge Maxine Cohen Lando expressed her displeasure Friday in a case that involved a property in Homestead with a $265,134 foreclosure judgment issued in July.
Lando said the so-called original note and original mortgage were filed months after the bank said those documents were lost.
"That in itself is a fraud upon the court," Lando wrote in an order to show cause as to why she should not hold Ben-Ezra & Katz attorneys in contempt

But, she added, the action "pales in comparison" to the fact that the mortgage and note are to a different property in Lehigh Acres, and that the documents are improperly signed and notarized. Lando said her verbal contempt finding on Friday would be followed by a written order.  

If that wasn't enough...

The judge dismissed the foreclosure case and banned the lender from refiling it. 

WELL DONE!  Now understand, I'm not applauding the fact that someone who didn't pay their mortgage got off scott free and is going to end up keeping a home that doesn't belong to them, what I am applauding is the fact that some shitbag foreclosure attorney is getting his ass handed to him on a plate by Judge Lando.  It's about time that attorneys who perpetrate a fraud upon the court are dealt with accordingly.

That leads us to the next question, if indeed the attorneys from Ben-Ezra & Katz are punished accordingly for their behavior before Judge Lando, how should we expect a judge to react when the attorney who's lying to the court is a prosecutor?  We'll see tomorrow, it looks like it's time to break out some of our audio recordings...

Slain MDPD officers Amanda Haworth and Roger Castillo laid to rest today and the Straw Buyer is reminded of another funeral...

The two Miami Dade county police officers, Roger Castillo and Amanda Haworth, that were senselessly murdered last week while trying to serve an arrest warrant will be laid to rest this afternoon.  Our thoughts and prayers go out to their family and friends.

This reminds me of another funeral that occurred about a year ago, the funeral of an old time Miami criminal attorney.  Obviously among the friends and family members that attended the funeral there were several of the deceased's fellow colleagues from the criminal defense bar.  At some point during the viewing, two of these old school attorneys who just happened to be working on the same case bump into each other and start chatting about their clients.  The first attorney is emphatic about taking the case to trial since he insists that his client is innocent.  The other attorney says dismissively that he got his client full immunity two days after he was arrested and had gotten him a sweetheart deal in exchange for his cooperation with the state.  Stunned, the first attorney steps back and asks his friend to reiterate what he just said.  Stunned because a year and change into the case, this was the first time anyone had heard anything about anyone in the case cooperating against the other defendants, let alone getting immunity.

Did I lose you?  Imagine you're the poor guy whose been charged with a crime that's trying to prepare a defense for over a year, all the while being kept in the dark about one of your co defendants cutting a deal and to add insult to injury getting immunity in exchange for ratting out everybody and their brother that they've ever done business with.  Does that seem fair?  In fact it's not only unfair, but it's illegal, a clear violation of due process rights afforded to an individual under the constitution.  Fact of the matter is that when there is such a deal in place it's the prosecutor's duty obligation to inform the defense counsel.

So what's this got to do with anything we've been talking about?  Another hypothetical situation or did this occur in one of the cases that we've discussed?  

More tomorrow...

More on that critical evidence we discussed last week, did the state have that check in their possession or not?

We left off last week discussing a critical piece of evidence that the state used to manipulate their key in the Barrera mortgage fraud case.  Rather than show their key witness, the witness whose highly manufactured testimony was used as the cornerstone of the states case, a copy of a cashiers check with the witnesses handwriting all over it, the state chose to present the witness with a clean copy of the cashier check as it was given to them by the issuing bank.  We also commented how there were startling similarities between the way this key piece of evidence was handled and how the state handled a similar piece of evidence in the Michelle Spence-Jones case.  In both instances a key witness wasn't shown copies of documents that had their handwriting on it, in the Spence-Jones case we gave the prosecutor and the police the benefit of the doubt and attributed this oversight to the document in question being buried in the voluminous case file, but what about the cashiers check in the Barrera mortgage fraud case that we've made such a stink about?  The same cashiers check that the state showed their key witness who then supposedly said after seeing said check:

She had no knowledge that an unrelated third party named Michael Martinez had provided the cashier's check for $123,530.56 as earnest money.  If she had been made aware of Michael Martinez' role in the transaction and that he had provided the cashier's check for $123,530.56 as earnest money, she would have not completed the closing and would have notified the lender.  She was never made aware that the cashier's check for $123,530.56 used as earnest money was not obtained until February 21, 2008, 2 days after the closing.

That's the testimony the witness gave after being shown a clean copy of the check, months later at deposition, the same witness is shown a copy of the check with her handwriting after which she recants her testimony.  

The question that begs to be asked then is why did the Prosecutor Kostrzewski and lead Detective Jorge Baluja show the witness this copy of the check knowing that the testimony wouldn't be reliable?  Perhaps the state didn't have a copy of the check with the witnesses handwriting?  Maybe it was buried in the case file like the Carey-Shuler letter in the Spence-Jones case?  Or maybe they had the check with the handwriting all along and chose not to use it?  That would be pretty shitty now wouldn't it?

Enough with the games, let's take a look at what Detective Jorge Baluja tells us during one of his depositions regarding said check...

 
No kidding?  The good detective tells us during this deposition that months before the arrests were made he couldn't find a copy of the check in his file (more like he didn't feel like going through the file) and he asked the attorney he arrested to fax him over a copy of the check as it appeared in her file, in essence he's admitting that he's had a copy of the check with his star witnesses handwriting on it for months before he made the arrests in the Barrera mortgage fraud case.  If that's the case then why the hell did the state use the clean copy of the check to influence their witnesses testimony?  Wasn't it bad enough that the state scared the shit out of the witness before she gave her statement, now to add insult to injury they show her evidence that they KNOW IS DEFECTIVE!  

The question that remains is why.

Prosecutor Bill Kostrzewski STRIKES BACK!

So where were we?  I believe we left off at the point in the deposition of the states star witness from the Barrera mortgage fraud case just before prosecutor Bill Kostrzewski's case went...

As we discovered over the last few days, the entire basis of Mr. Kostrzewski's case went to shit because his key witness who claimed she had never seen the cashiers check which was used as a down payment for the purchase of the Oak Avenue home that's at the center of the fraud suddenly remembered that indeed she had received the check as evidenced by her handwriting on the face of said check.  This admission by the states star witness completely negates her previous testimony where she stated that she had never seen the check in question and that if she did, she would have gone ahead and called off the closing since the remitter on the check was not the person who was buying the home.


So what's this "veteran economic crimes prosecutor" to do at this point?  His whole case has just gone down the shitter, his only hope is to grab the reins and try to straighten things out by cross examining his star witness.  The transcript speaks for itself...

Good move Mr. Kostrzewski, remind the witness why they're here, make the witness comfortable.  The whole check thing was a major fuck up, you know the witness admitting that indeed they did receive the check that they previously denied ever seeing is a a fatal blow to your case so let's change the subject.  Now let's watch as prosecutor Kostrzewski brings up the HUD-1 statement that he's been alleging was signed by attorney Delaila Estefano which according to him has incorrect and fraudulent information on it, that should get things moving in the right direction again, right?

WHOA!  WHAT THE FCUK MR. KOSTRZEWSKI?  You've been alleging for nearly two years that the attorney, Delaila Estefano had created and signed a bogus HUD-1 and now it turns out that she didn't and it was your star witness that did?  HOLY CRAP!  At this point, I don't think he's even fully grasped what the witness just admitted to, what now Mr. Kostrzewski?  How the hell are you going to right this ship?

Great idea, take a deep breath, regroup and start over.  Things aren't exactly going your way now are they Mr. Kostrzewski?  Let's watch as the "veteran economic crimes prosecutor" tries to regain control of the situation...

For fucks sake, here we go again.  True to form Mr. Kostrzewski tries his best to put words in the witnesses mouth, when the witness won't say what you want, MAKE THEM SAY WHAT YOU WANT!  In fact, the witness had received this check, she states as much just a few moments before...

Ok, let's watch as "veteran economic crimes prosecutor" Kostrzewski tries to get his witness in line, regain control of the situation and try to save whatever is left of this steaming pile of shit he calls a case...

HUH?! Go back and read that again and see if it makes any sense to you.  According to prosecutor Kostrzewski, the check in question was from the "buyer's end of the transaction" and his witness did not meet with the buyer, but met with Mr. John Romney who was the BUYER?  What in the FUCK?  I can only imagine the mood in the room as this nonsense comes spewing out of the "veteran economic crimes prosecutor", fortunately for Mr. Kostrzewski, the witness clarifies the situation for him...

That's right prosecutor Kostrzewski, let's give you a brief rundown of the players so you don't get confused:

• John Romney, seller of the Oak avenue home involved in the fraud.
• Bernardo Barrera (or impostor) the man who claimed his identity was stolen and used for the purchase of the home involved in this fraud.
• Michael Martinez, the man who lent Barrera (or impostor) the money for the down payment.
• Delaila Estafano, the attorney who you claimed created and executed bogus HUD-1 statements and accepted a third party cashiers check for the down payment on the home.

Got it?  It might not be a bad idea the next time you go into a deposition for you to write the names and roles of the critical players on a small crib sheet, this way you won't humiliate yourself in front of your peers.  The ultimate indignity for a defendant, to be prosecuted by someone who doesn't have the slightest idea what or who the case he's prosecuting is about.


So now what?  Prosecutor Kostrzewski based his case on allegations that the attorney he arrested created and executed bogus HUD-1 statements and that the attorney surreptitiously accepted a third party cashiers check for the purchase of the home that's at the center of the Barrera mortgage fraud case.  Now his start witness, the witness that his entire case is based around completely negates his claims and admits that not only did they sign the HUD-1 statements that he alleges were fraudulent but that this same witness also accepted and processed this cashiers check.  Add into the mix this "acknowledgment of closing instructions by closing agent" , that the prosecutor conveniently has ignored since the inception of the case which again was not signed by the attorney who he arrested...

Now what do you got?  What you have is nothing but a heap of shit of a case, you got documents that clearly exonerate the attorney whose office conducted the closing, documents that have been in the states possession from the get go yet the prosecutor decided to press charges any way.  What's most disturbing is what happens from this point forward, rather than seeing the mistakes he clearly made in building this case, rather than dismissing the charges that were clearly made in error, prosecutor Kostrzewski keeps moving forward and refuses to admit to his mistakes, no matter how severe the consequences.  These actions are what clearly defines this man, a man who at least in my opinion has no business being a lawyer, let alone a prosecutor.

Since we know you frequent our little blog Mr. Kostrzewski, I'll leave the next part to you, should I expose what you've been doing to undermine the prosecutor who replaced you in the Barrera mortgage fraud case here in public or should I go to your boss in private and share what I know?  The jig is up Mr. Kostrzewski and I haven't even gotten warmed up yet...

Even more on that cashiers check from the Barrera mortgage fraud case...

Yesterday we listened as the states star witness testified regarding a cashiers check for the down payment for the purchase of the Oak Avenue home that was involved in the Barrera mortgage fraud that was brought to closing as follows...

She had no knowledge that an unrelated third party named Michael Martinez had provided the cashier's check for $123,530.56 as earnest money.  If she had been made aware of Michael Martinez' role in the transaction and that he had provided the cashier's check for $123,530.56 as earnest money, she would have not completed the closing and would have notified the lender.  She was never made aware that the cashier's check for $123,530.56 used as earnest money was not obtained until February 21, 2008, 2 days after the closing.

Wonderful.  The crux of the states case is based on this check circumventing the law offices established protocol for escrow checks which according to the states witness is as follows...

1. Write a file number on the check.
2. Make a copy of the check.
3. Put a copy of the check in the file.
4. Give the original to the bookkeeper for processing.

The state alleges that since this check was given directly to the attorney and not the office employee that handled the closing and that this proves that the attorney was involved in some nefarious scheme to defraud the lender out of hundreds of thousands of dollars.  

Let's pick up the states star witnesses deposition where we left off yesterday...

The attorney is referring to this copy of the check in question...

Now, before we get to the next bit I'd like you to imagine that smug self righteous, self aggrandizing look on Prosecutor Kostrzewski's face and remember the entire basis of his case against the attorney he charged was from this witnesses testimony regarding this check and the fact that she never saw it nor ever knew anything about it and if she did she would have called the lender and canceled the entire transaction.  In case you forgot what that look is, this is probably pretty close...

Back to that state's star witness...

NO FUCKING SHIT HUH?  How's that self righteous, self aggrandizing look on the prosecutors face now?

So what about all this bullshit?

She had no knowledge that an unrelated third party named Michael Martinez had provided the cashier's check for $123,530.56 as earnest money.  If she had been made aware of Michael Martinez' role in the transaction and that he had provided the cashier's check for $123,530.56 as earnest money, she would have not completed the closing and would have notified the lender.  She was never made aware that the cashier's check for $123,530.56 used as earnest money was not obtained until February 21, 2008, 2 days after the closing. 

That's just it, pure fucking bullshit.  That's the most highly manufactured and coached statement I've ever seen since the inception of this case, the question is, who made it up?  Was it the dipshit cop or the inept prosecutor?  The worst part of this whole ordeal?  The cop and the prosecutor had copies of this check with the handwritten file number on it since before the arrests were made, unfortunately for them, there's irrefutable proof that they had it, so you have to ask, why the hell did they go ahead with this witnesses testimony knowing that it was false?

More on that cashiers check from the Bernardo Barrera mortgage fraud...

We left off last week discussing the cashiers check used for the down payment for the Bernardo Barrera mortgage fraud and the testimony from the girl at the law office who conducted the closing where she specifically stated that she had never received said cashiers check nor was she aware of it's existence.  Here's here statement as it appears in the arrest affidavit...

She had no knowledge that an unrelated third party named Michael Martinez had provided the cashier's check for $123,530.56 as earnest money.  If she had been made aware of Michael Martinez' role in the transaction and that he had provided the cashier's check for $123,530.56 as earnest money, she would have not completed the closing and would have notified the lender.  She was never made aware that the cashier's check for $123,530.56 used as earnest money was not obtained until February 21, 2008, 2 days after the closing.

And once again, here's a copy of the check as it was presented by the state...

Super.  Here's the check, she had no idea of it's existence, if she had know about it, she would have jumped up and down and canceled the whole deal.  Fantastic.  Let's jump over to an excerpt from this lovely young lady's deposition and see how these types of escrow checks were handled in her capacity at the law office...

Simple enough, according to her testimony, the procedure regarding escrow checks was as follows:

1. Write a file number on the check.
2. Make a copy of the check.
3. Put a copy of the check in the file.
4. Give the original to the bookkeeper for processing.

Easy enough, therefore making the absence of any file number on the check all the more alarming, right?  The mere fact that there was no file number on this check evidence of some sort of nefarious scheme by the people charged in the Barrera mortgage fraud case, that would be the case if we didn't have a second copy of the check with a handwritten file number on it, the same check that we mentioned we obtained from the states case file.  So which check did the state show this witness during her interview, the one with the handwritten file number or the one without?  Again from her deposition...

Notice how the self righteous, self aggrandizing inept prosecutor interjects with the "no file number" on the check comment?  Thanks for that Mr. Kostrzewski, but we already know there's a problem with the copy of the check that you and Detective Baluja used to manipulate this witnesses testimony, let's keep going...

Again, the witness reaffirms what she's already allegedly told the state and that the copy of the check with no handwriting that the state showed her must have come from the issuer, Bank of America.  Once last bit...

Obviously, the copy of the check shown to the witness isn't going to have any notes, stamps or anything else on it as it's a copy of the check as it was issued not as appeared after it was deposited with all of the associated stamps and notes that would normally appear on cashed check.  So now we have the background of how the state manipulated their star witness in this Bernardo Barrera case to make this statement...

She had no knowledge that an unrelated third party named Michael Martinez had provided the cashier's check for $123,530.56 as earnest money.  If she had been made aware of Michael Martinez' role in the transaction and that he had provided the cashier's check for $123,530.56 as earnest money, she would have not completed the closing and would have notified the lender.  She was never made aware that the cashier's check for $123,530.56 used as earnest money was not obtained until February 21, 2008, 2 days after the closing.

Remember, it's this testimony that Mr. Kostrzewski used to build his case.  I can only imagine how smug and satisfied with himself prosecutor Kostrzewski must have been at this point in the deposition.  Things are about to go terribly wrong for Mr. Kostrzewski and his star witness, we'll discuss tomorrow...

Federal prosecutor Sean Cronin charged with Lewd and Lascivious Assault on a Child and another Federal prosecutor commits suicide!

What the hell is going on here?  We start with Federal prosecutor Sean Cronin being with charged with Lewd and Lascivious Assault on a Child, from the Miami Herald article...

Sean Cronin, 35, was charged by police with lewd and lascivious behavior in front of a minor under 16 -- a felony -- at Finnegan's River, 401 SW Third Ave., according to an arrest affidavit.
Cronin, a Boston native who was watching the New England Patriots game on the big-screen TV at the outdoor bar, went swimming in his boxer shorts. The girl and her mother were in the pool.
According to the arrest form, the girl and her mother told Miami police that Cronin's genitalia were exposed as he got out of the pool. ``The victim's mother, who also witnessed the incident, then covered her daughter's eyes,'' the form said.
They alerted the pool's staff members, who tried to detain Cronin until police arrived, the affidavit said. But Cronin tried to leave through a back exit.
According to the affidavit, a Miami police officer arrived and spotted Cronin running out the back of the establishment. Cronin saw the officer, but ``continued fleeing'' and ``jumping over multiple fences'' away from the waterfront bar.
The officer stopped him and placed him under arrest about 2:30 p.m.
Cronin also was charged with a misdemeanor, resisting arrest without violence, according to the affidavit.

Amazing.  Mr. Cronin caught our attention a while back because of the allegations of prosecutorial misconduct leveled against him by attorney David O. Markus during the trial of Dr. Ali Shaygan.  Mr. Cronin and his crew of prosecutors decided to surreptitiously record conversations between Dr. Shaygan and his attorneys, clearly one of the most egregious examples of prosecutorial misconduct we've ever discussed, in fact his behavior throughout the trail was so bad that U.S. District Judge Alan Gold ordered the government to pay $601,795 to cover legal fees, litigation expenses and expert fees for Dr Shaygan.  Didn't we discuss a  hypothetical situation a while back where a prosecutor was ILLEGALLY recording conversations between an attorney and their client?  Can you imagine the consequences if said recording actually occurred?  God forbid some idiot with a blog actually had proof of something like this happening...


Now, onto another federal prosecutor accused of misconduct, AUSA Nicholas Marsh who was one of the prosecutors accused of misconduct in the Senator Ted Stevens case decided to end his life this past weekend.  From the Criminal Enterprise blog...

Marsh was among six Justice Department lawyers under investigation for their handling of Stevens' trial, part of a wide probe into corruption in Alaska politics. Marsh had been reassigned from the elite public integrity section, and had been working on international extraditions. 

Marsh's suicide was confirmed by his lawyer, Robert Luskin.  "I reckon Nick loved being a prosecutor and I reckon he was incredibly fearful that this would prevent him from continuing to work for the Justice Department," Luskin said Monday. "It's incredibly tragic after all this time when we were on the verge of a successful resolution."

Somehow I have a hard time having any sympathy for this guy, again from Criminal Enterprise...

While I have sympathy for the man's family, nonetheless any prosecutor who knowingly withholds exculpatory evidence in order to grease the skids for a conviction is a criminal and nothing else.
If this man had shown integrity a year ago, he would not have had to undergo the "strain" of the in-house investigation that, frankly, is NOTHING like a real criminal prosecution that he and others place innocent people through all of the time. If he could not stand the pressure of, frankly, a whitewashed "investigation," then I doubt he ever could know the real hurt he did to others in his lifetime.

Well said.  Karma's a bitch, ain't it?

Fantastic article on prosecutorial misconduct and internet connectivity problems for the Straw Buyer...

As the title of today's post states, we're having problems with both our internet connection and the Blogger software.  Regardless, check out this fantastic article from USA Today regarding one of our favorite subjects, prosecutorial misconduct.  From the article...



Most interestingly...

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

"Prosecutors think they're doing the Lord's work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right," said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. "So even if you got out of line, you could tell yourself that you didn't do it on purpose, or that it was for the greater good."  

Doing the Lord's work?!  PUHLEEZE!  We'll discuss this "Lord's work" next week, till then have a great weekend.