Are the actions of the Prosecutors in USA v. Neighbors amounting to conduct which can defeat the administration of justice or bring the courts and/or the legal profession into disrepute?
BACKGROUND OF FACTS:
On October 24,2007, A letter was written to defendant Guy Neighbors by Dionne Scherff attorney for Guy Neighbors in United States V. Guy Neighbors case No. 07-20124.
Grand Jury Rule 6(e) functions to protect both the integrity of the investigative process and a defendant’s constitutional right to a fair trial. Because leaking by a prosecutor of a witnesses testimony before a grand Jury may constitute a felony under Title 18, punishable by up to five years in prison and a $250,000 fine.
In the letter dated October 24, 2007 Ms. Sherff explains she has a conflict of interest and will not be proceeding as counsel on the case. The letter explains to Mr. Neighbors that a witness by the name of Patrick Nieder had testified adversely against him in a Grand Jury hearing. (In reality Mr. Neighbors has never even personally met Mr. Nieder.)
The letter goes on to explain that Ms. Sherff had traveled to the U.S. Attorney's office in order to review the Grand Jury testimony of Patrick Nieder. Ms Sherff then explains she discussed the conflict with the Government US Assistant Attorney Terra Morehead. And Morehead stated the she did not expect Mr. Nieder to be a witness in Case no. 07-20073.
In direct contrast to Ms. Moreheads statement, and rendering her credibility in the case questionable, during an evidence hearing in USA v. Guy Neighbors case no. 07-20073 before the Honorable Chief Judge John Lungstrum on November 5, 2007, Postal Inspector David Nitz; under the direction of AUSA Attorney Terra Morehead read the adverse testimony by Patrick Nieder, falsely claiming he had sold $30,000.00 in drugs and guns to the Yellow House Store and that Mr. Neighbors had met with him to buy the guns.
The disclosure of this witnesses false testimony before the Grand Jury was used to gain a tactical advantage over the defense, in order to force the defense attorney to have to withdraw from the case, create a conflict, and even possibly set the stage for a future mis-trial.
Any time a prosecutor purposely manipulates the Grand Jury's veil of secrecy rule by leaking evidence to gain a tactical advantage, for self-enrichment, to cause embarrassment, or out of shear malice, then she has willfully misused grand jury information in a manner no court or jury should excuse.
Because grand jury information is government property, its intentionally unauthorized use by a prosecutor abusing her power is a violation of 18 U.S.C. § 641 which criminalizes the theft of any thing of value. United States grand jury transcripts constitute property covered by §641. More important, the intangible information presented to the grand jury reflected in those transcripts also constitute “any thing of value” under § 641.9.
As a direct result of the United States Assistant Attorney's disclosure of this Grand Jury Testimony, on the 29Th day of October 2007, Dionne Sherff was forced to file a motion to withdraw as Guy Neighbors defense attorney of record. According to the motion Assistant United States Attorney Marietta Parker had no objection to the motion.
Guy Neighbors was also forced to be a defendant in the evidence hearing in Judge Lungstrums court on November 5, 2007, while being represented by a defense attorney with a conflict of interest, who had already filed a motion to withdraw from the case.
In Furtherance of the misconduct, it appears all the discovery involving Patrick Nieder was removed from the Nieghbors file prior to the current defense attorneys being appointed to the case!
CONCLUSION:
Considering the fact that Federal Prosecutors wield an awesome power to investigate federal crimes with the aid of grand jury subpoenas, deals in exchange for testimony and many other tools of power at their fingertips, they must exercise their discretion in a sound, trustworthy and judicious manner.
When a prosecutor intentionally leaks protected Grand Jury testimony she engages in a form of prosecutorial misconduct that not only may compromise a defendant’s right to a fair trial, but may also penalize the interests of the United States in a successful prosecution.
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