JONES DAY TALKS®: Detecting and Preventing Prosecutorial Misconduct - An Overview for Defense Lawyers

Dave Dalton:

Though rare by any practical measure, and knowing that the overwhelming majority of prosecutors are professionally and ethically above reproach, prosecutorial misconduct does happen, and it happens at various stages of a prosecution and at different court levels and jurisdictions. What's the defense lawyer to do and what should they know? Jones Day partner Neal Stephens, co-author of the recent ABA publication, Prosecutorial Misconduct, a Practical Guide for Criminal Defense Lawyers, is here to share some valuable insights. I'm Dave Dalton. You're listening to Jones Day Talks. Neal Stephens is a trial lawyer with 30 years experience focused on white collar and complex civil litigation, including defending grand jury investigations brought by the Department of Justice. A former federal prosecutor in Miami, Neal led the busiest federal trial unit in the country, where he extradited high-level Colombian traffickers, including members of the Medellin Cartel, has handled pro-bono matters for the Northern California Innocence Project for 20 years representing defendants wrongfully convicted due to prosecutorial misconduct. Hey, Neal, thanks for being here today. I've been looking forward to this. I think this is going to be a very interesting conversation, so thanks today.

Neal Stephens:

Thank you, Dave.

Dave Dalton:

Before we dive in, let's talk about your background a little bit, talk about what you do, where you've been, and give the audience who hasn't heard from you before, a feel for who you are.

Neal Stephens:

Sure. Graduated law school in 1990 and came out as a federal judicial law clerk to a district court judge in federal court in Los Angeles, Judge Stoller. Then shortly after that, I became a federal prosecutor in Miami in the Southern District of Florida and served there through the 1990s ultimately serving as chief of narcotics. I ran what they called an OCDETF region, which is the organized crime drug enforcement task force for the Florida Caribbean region, which would've included Puerto Rico and focused on high level international narcotics prosecutions, mostly focused on the Colombian cartels. My particular focus was mostly on Medellin, some on the North coast as well. Then moved back to Northern California in 2000 with my wife and young family and became a criminal defense lawyer in big firms and have been at Jones Day now for a long, long time and focus on white collar criminal matters.

Dave Dalton:

Let's talk about your practice a little bit. What client matters do you focus on? Where's most of your activity?

Neal Stephens:

Most of the work I do is defending clients in federal grand jury investigations. I would represent either the company or it might represent some of its senior officers, CEOs, CFOs, GCs, or even board committees that are staring down the barrel of a federal criminal grand jury investigation. These are white collar matters, many are accounting fraud matters that would either be wire fraud, mail fraud, securities fraud that involve gap accounting issues where there's a disagreement between the company and the government as to how they should have handled their books. I've also done bank fraud cases coming out of banking meltdown in the 2000 and 2012 era and have done also work involving defending people accused of public corruption matters.

Dave Dalton:

You mentioned banking. Any focus in terms of industries or sectors for you, or are you across the board pretty much?

Neal Stephens:

I'm across the board, I've represented executives in bank fraud cases. I represented the CEO of a bank out here in Northern California on a matter, and then other larger national banks on some issues that they've encountered through the years.

Dave Dalton:

Okay. Well, good. Well, first of all, congratulations on getting a book published. I know how hard that is, so I'm impressed right out of the gate. Let's talk about what led you to writing Prosecutorial Misconduct, a Practical Guide for Criminal Defense Lawyers. How did this project come about?

Neal Stephens:

I've done a lot of pro bono work with the Innocence Project over the years, and the genesis of this book comes out of the realization that there are too many innocent Americans serving time in our prisons where they were convicted in cases where a government prosecutor either violated some significant ethical obligation or a defendant's rights in ways that constitutes prosecutorial misconduct. It's my view that the overwhelming majority of prosecutors are honest and do it the right way, but there are enough prosecutors committing prosecutorial misconduct where I felt that there was a need in the market for the book, such that every day in America, Dave, we have a situation in every jurisdiction in America, there is a prosecutor or prosecutors committing misconduct in a way that needs to be challenged. I tried to pull it together in a book that a criminal defense lawyer can take to court or have as a resource on their desk to cover the whole landscape of stuff that could happen, from a pretrial investigation all the way through the rebuttal closing argument at the end of a case.

Dave Dalton:

It frightens me that this happens often enough that there's justification in a need and a demand for a book like this. You're in good company, John Grisham, you know that? Grisham.

Neal Stephens:

Oh, sure.

Dave Dalton:

You mentioned the Innocence Project. Grisham's book is coming out I think later this month. It's the same topic. I think he takes 12 or 15 stories, this type of thing. I know that's not exactly what we're talking about here, but I guess this is a bigger deal than the layperson might know about.

Neal Stephens:

Right. What happened to me, there are a lot of federal prosecutors that come into doing white collar criminal offense work, and you receive your baptism early on when you handle a case where the prosecutor handles his or her ethical responsibilities in a way that's very different than the way that you did it when you were in. That happened to me. I came out and three or four years later, I encountered a case where the prosecutor withheld Brady evidence, exculpatory evidence that demonstrated the client's innocence, also put on witnesses at trial that were knowingly committing perjury that the prosecutor was sponsoring. Then the prosecutor also misstated the factual record in closing argument. I challenged all of it. It was a massive wake-up call to me that this is actually happening in courts. Then coming out of that battle, I started to get retained by other executives who felt that they were in situations where the government was cheating, and it became almost a practice subspecialty for me.

Then over time, I realized that I had this big massive brief bank from all the cases I've handled around the country where I've had to challenge these issues, Covid hit, and I had free time at night like we all did. I sat down and started organizing all these motions into the chapters of a book and tried to do it chronologically through the pace of an investigation through the end of trial, so a defense lawyer who picks up the book knows where if something's going to fall in chapter six or seven or it's going to fall in chapter one or two at the start of a case, or it's all the way at the end and they can get to the information they need quickly to try and move quickly when they're confronted with these issues.

Dave Dalton:

Was this disillusioning to you? I don't mean to make anybody sound naive, but did this surprise you? Because you go to law school and you're dedicating your life, your career to the rule of law, and then you figure out, "Geez, there's some malfeasance out there." How does that make you feel as a young lawyer, when you started to discover all this?

Neal Stephens:

The way I've described it to other former AUSAs or state prosecutors that go through this is that makes you a hardcore criminal defense lawyer that very day, and that was my experience. Most federal prosecutors take a lot of pride in the district that they served in, and you want all 94 jurisdictions to do it the right way. When I came into Miami in the 1990s, they would assign all new prosecutors to the appellate division. The chief of the appellate division was a woman named Linda Hertz.

Linda Hertz would grab you on day one and say, "Here is the office's expectations for you to follow the ethical rules. Here are how criminal cases get reversed on appeal when a prosecutor misbehaves. You do not need to misbehave to win your cases if you investigate them properly." I was in that unit for eight months and worked on 40 or 50 criminal appeals and would have conversations with the appellate lawyers on a daily basis on how to do it right so when you graduated the appellate from the appellate division and went into the trial squads, you knew how to do it. It was the largest office in the country. The narcotics section was the largest narcotics section in the country. In terms of scale, we would on an annual basis, try more cases, indict more cases, convict more defendants than the four largest districts combined.

Miami was doing more than the Southern District of New York, the Eastern District of New York, the Southern District of Texas, which is Houston, the central district of California, which is LA, combined on all those metrics. It was a very mature criminal defense bar that we were going up against, heavily resourced because the Columbia traffickers had a lot of money to spend on them. We learned very early on as young AUSAs that you had to do it the right way to win and to make the conviction stick. Then when I came out and was practicing in other districts, that wasn't always the way that the minority of prosecutors would approach their cases, and that was a massive wake-up call to me, Dave.

Dave Dalton:

What made you want to do that in the first place? I think you were in California to trek across the country to a hotbed of nefarious activity, why do you do that?

Neal Stephens:

At that time, Miami was the biggest game going. The crack cocaine epidemic had led to, in the early 1990s, basically massive upheaval on the streets and a lot of violence. If you were a young wannabe trial lawyer that wanted to do prosecution work, Miami was the big leagues. That's where I wanted to go. When I got there, you quickly realized that a lot of other people had the same call from around the country. I had friends in that office that were from basically every zip code and every time zone in America. It was great.

Dave Dalton:

Sure. An interesting segue here, and I think the audience would be interested, Janet Reno was the AG when you were there at the Justice Department.

Neal Stephens:

Yes.

Dave Dalton:

What was the Department of Justice like under her? How was it back then?

Neal Stephens:

Janet was the best. She was a fantastic, tremendous leader, unique in the sense that she had run the state attorney's office in Miami-Dade County, which is the local district attorney's office there. She was unique in the fact for us and federal prosecutors in Miami, she understood the streets and she understood how the Columbian cartels operated and possessed the courage to make hard calls on major international prosecutions. She was not by contrast, a DC bureaucrat or some ivory tower type that didn't understand the fight that we were confronting on a daily basis on the streets.

One quick story about Janet that should be told that many people do not know is how critical she was to the change in extradition related to Columbian nationals. In 1984, before she was Attorney General, the Columbian Supreme Court was considering whether or not to extradite its own nationals to the United States to stand trial in narcotics cases. This would've been the head of the Medellin Cartel, the Escobar family, the Ochoa family, the Orwellas out of Cali, some major, major criminals. In 1984, the Medellin cartel paid some guerillas to go in to the Supreme Court and kill some of the justices who were leaning towards voting for extradition, so when that case comes up to vote and the dead judges are replaced, guess what happens?

The Colombian justices decide against extradition. From 1984 into the mid-nineteen nineties, you could not extradite a Colombian national out of Colombia. Through Reno's diplomatic efforts, in December of 1997, the Colombian government agreed to finally change their extradition treaty with the United States such that they would extradite nationals, Colombian nationals to stand trial in America for narcotics offenses in America. At the time we had,, in Miami on wiretap interceptions, the leaders of the Medellin cartel, the Cali cartel, the North Coast cartel. Based on Janet Reno's work, we were able to send the DEA Learjet down there and extradite those individuals out to stand trial and now face prison in the United States, which was their great fear.

Dave Dalton:

It's a fairly high-profile position, but few AGs, I can think maybe on one hand rise to household name status, and she was certainly one. Not just because she was the first woman AG, but she was incredibly effective. Let's talk about the book for a second. I love the way you organized the book, by the way. I guess it certainly made sense to you, but I think for a leader it makes a lot of sense. Broadly, you divide the material into three sections, prosecutorial misconduct during a criminal investigation, during pre-trial discovery and during the trial itself. Let's get to a couple takeaways maybe about each section. Let's start with the investigation. Give us a couple highlights from the book. What does defense counsel need to know? What happens, what might be typical? What do you look for in that first section of the book?

Neal Stephens:

Sure. Just maybe before we get to that, to talk a little bit about the structure of the book. I'm a consumer of books published by the American Bar Association, their practice guides and lean on them quite a bit in my day-to-day practice. Terrence McCarthy's book on cross-examination is fantastic. Joe McSorley, also a former Miami federal prosecutor, wrote a book on conspiracy law that I use almost on a daily basis. I've seen how they have structured books and the ABA is considered the platinum standard for putting out these practice guides. They've got very high standards of how the book needs to be organized. When they started talking to me about this, my idea was to break it into the three sections that you just mentioned, like prosecutorial misconduct that happens during the investigative phase of the case.

Then after indictment, what happens pre-trial and what defense lawyers can do in the pre-trial phase, and then while you're at trial, what you have to watch for and how you preserve your objections. To your question, Dave, on that first section on what happens pre-trial, what I'm covering, there are situations where government agents or prosecutors have put false or mistaken information into affidavits supporting either search warrants or wiretap affidavits and how those can be challenged. Another thing that is more of a recent phenomenon is after search warrants, particularly of corporations, the government is insisting on using what we call filter or tank teams where government agents and prosecutors are the ones looking through a company's privileged information to allegedly keep that from the line prosecutors who are trying the case.

There's a lot of case law around how to challenge that and also covering what the justice department's policies on when those tank teams should be used and how they should be used. Some of those challenges can be made prior to indictment. One of the things I try and do in my cases is when I'm seeing misconduct, before I'm even thinking about going to a court to raise it and challenge it, I'm thinking about going up the chain of command within a prosecutor's office and then into the Department of Justice at DC at headquarters itself to try and either get them to decide to pull the rogue prosecutor off the case or even further if the case is so tainted by the misconduct to get them to decline the case at all, to not indict it. Because criminal defendants will tell you you can't get your reputation back after you've been indicted. I've tried to have a good chunk of the book give a roadmap for defense lawyers to challenge conduct before an indictment even comes down if they can, to try and head off the indictment.

Dave Dalton:

How did your experience as a federal prosecutor prepare you to do that? It sounds like you know who to go to. You know how this works. You know who the person... Who's Elvis here, I can get this fixed or I can at least get an audience.

Neal Stephens:

I walked through that in the book and there's three separate audiences that you can have. You can have it through the brass at a US attorney's office, which is chief of the criminal division, the first assistant who's the number two in the office and the actual US attorney to try and get them in a conference room with the prosecutors, got the line prosecutors got the case and walk the leadership through the problem so they understand the reputational hit that their office might face if the case goes forward. Another potential challenge is through a group called EOUSA, which is at headquarters and it's the administrative wing of all 94 US attorney's offices. The head of EOUSA has some ability to put pressure on a district to recuse a prosecutor.

Then a third challenge is through the deputy attorney general, which is the number two to the attorney general. They will also, in most cases, if you've got a solid basis, give you an audience as to explaining why as a legal matter, they should consider declining prosecution or putting a new prosecution team or a new district on a case that's tainted with bad conduct from the team that has the case currently.

Dave Dalton:

How often, and I'm not trying to put you on the spot, I don't need a number, a percentage, but are you fairly successful?

Neal Stephens:

We have had success in making those challenges. It's tough because you're going in front of a very skeptical audience, so you have to have your facts and evidence lined up in a way, like civil lawyers on summary judgment. The facts have to be undisputed, right? Because if there's a dispute, they're going to side with their employee, their prosecutor.

Dave Dalton:

Second big section of the book, you talk about pre-trial discovery and weeding out misconduct there. How's that work?

Neal Stephens:

The key here is pushing for discovery and understanding when the government might be hiding the ball on you. A lot of this relates to what we call Brady or Giglio evidence, which is exculpatory evidence that either demonstrates the client's actual innocence or it's evidence that demonstrates that the government's witnesses may lack credibility. They might be biased, they might've been paid, they might be receiving immigration benefits or whatever from the government that haven't been disclosed. It's understanding how to force the government to disclose all of that and then how to challenge it. There's also in pre-trial, trying to get at the grand jury transcripts and what happens in grand jury, many criminal defense lawyers never served as prosecutors, so they've never been in and presented to a grand jury. There's no defense lawyer there, there's no judge there.

But former prosecutors who have extensive grand jury experience, and I had the benefit of that based on my time in Miami, understand how the grand jury process can be subverted by presenting a very one-sided account where they're not presenting exculpatory evidence to the grand jury or they're not presenting facts that they know, demonstrate that the defendant might be innocent. Part of that is trying to get at all of the transcripts that are in front of the grand jury, including what we call the colloquy transcript, which is the prosecutor talking to the grand jury when there's no witness in the room. In 95% of cases that is never going to be produced. But I try and chase that evidence in every case I have because that's one of the prime areas where a rogue prosecutor is going to misbehave. If you can get that transcript, you can demonstrate to the judge that the case has significant problems.

Dave Dalton:

I noticed you said if you can get that transcript, is that a heavy lift? Don't they have to as you're a defense lawyer?

Neal Stephens:

They have to give you the transcripts of witnesses who are going to testify at trial. They don't necessarily have to give you the transcripts of witnesses who may not testify at trial like a hearsay witness, like an agent or a summary witness. They do not necessarily have to give you the transcript when it's just the prosecutor talking to the grand jury. Since the prosecutors know that, that's where they can shade stuff in a way that might be unethical, which is why I push for it. If I can demonstrate that there's other aspects of the case or other aspects of the grand jury that aren't consistent with DOJ rules or what's the court's expectations on ethics, I can then try and push for that colloquy transcript. Sometimes you get it, sometimes you don't, but I always go for it because that's where a rogue prosecutor is going to commit misconduct.

Dave Dalton:

Philosophical/academic question coming out of left field, you've been on both sides of it, is the grand jury process... I've heard everything they say, "Hey, it's a rubber stamp for the prosecutor, 95% of things move on," whatever. But does the system work in a white collar scenario? Is it effective?

Neal Stephens:

Every grand jury is going to be a little bit different, but my experience in Miami was there certainly were some grand juries that were rubber stamps and they were going to not ask many questions and they were going to give you the indictment, but there were also grand juries that had a grand juror or two on them that would press us on every issue possible. The criminal defense lawyers don't know if they've got a grand jury in their case that has that type of skeptical grand juror who's going to ask those kinds of questions. A lot of those questions get asked on the colloquy transcript without a witness in the room, so another reason to push for that colloquy transcript.

To go back to a Janet Reno example, I had a case where it was a really tricky venue issue where we interdicted a ship on the ocean, high seas, with about 10,000 pounds of cocaine on it. It intercepted by the British Navy flying a Panamanian flag on its way to Spain with a Russian crew or Eastern European crew. But there was some law that if it was brought into port at Key West that we would have venue. When we did that, it went up the chain. It was a very big national case, and Janet asked that question, "How do you have venue here?" We explained how venue would work, and we got a very similar question from a grand juror right out of the gate. My response was, "That's interesting because the attorney general asked us the same question, here's the answer." Then we took the case from there. Yes, every now and then we'll run into a grand juror who has the same wit and experience and understanding as your United States Attorney General.

Dave Dalton:

Sure. I was trying to calculate the street value of 10,000 pounds, but that's a different podcast for a different time.

Neal Stephens:

Yeah, hundreds of millions.

Dave Dalton:

I don't want to know. None of us want to know. Let's move on the trial phase, the trial itself, what do you look out for there? Where might misconduct come into play or how?

Neal Stephens:

Four key issues here, Dave, in my view, you've got jury selection and voir dire and what a prosecutor can say and can't say. Some of that would be Batson type challenges. If there's racial discrimination, the same kind of rules apply in voir dire that apply an opening and closing statement. A lot of that case law also works in voir dire, and those objections can be made during voir dire because it alerts the judge that you may see the same kind of problem and issue in opening and closing argument.

Dave Dalton:

Sure.

Neal Stephens:

There's also a wide body of case law on what's known as Napue, which is a Supreme Court case that says the government cannot put false evidence on through their own witnesses. If a witness testifies to something falsely, the government has to fix it. You can't wait and rely on defense cross-examination to fix it. The government has an affirmative duty to fix it on the spot. There's case law throughout all the federal circuits. It's a little bit different standard through some of the circuits, but we summarize all that so folks understand when and how to raise those objections and how if you're in the Fourth Circuit, it might be a little bit different than the DC circuit so you frame your objection properly. The next one would be constructive amendments, which is another Supreme Court case called Stirone.

Dave Dalton:

Okay.

Neal Stephens:

You'll see this in all kinds of cases, straightforward gun cases to RICO prosecutions to very complex accounting fraud prosecutions where the government indicts on one theory and then tries the case on a slightly modified or different theory at trial. It's became clear to me as you look through the cases throughout the country, is this is an objection you want to make every time, because it's per se reversal, but you have to preserve it at trial. We lay out all the cases from all the circuits so people will have the case they need in their home circuit for that factual pattern.

Then the last one would be opening statement and closing argument, particularly rebuttal closing argument, which is after the defense lawyer sits down and finishes his or her closing argument, you're often exhausted. Then the government stands up and they get last ordered, which is a massive hammer and a great advantage for the government to have to be the last one to talk to the jury before they go in. We walk through all of the various fact patterns where prosecutors have made a type of statement, whether they're vouching for their witnesses or they're giving their own personal opinion, or they're misstating the facts or whatever. We go through all of them in all of the circuits so that folks will have ready access to when they should be objecting and how they should be preserving that objection. It struck me as I read all these cases, hundreds of them of cases where they actually quote the comment from the prosecutor, and my reaction was, I don't think I've ever heard a government closing argument that doesn't have something along that vein that should have been objected to.

Dave Dalton:

Interesting. All right. Here's the question, and I've interviewed a few authors, what did you learn? Now, you're writing this book to teach, to inform and so forth, but with all this research and going through the process of putting a book together, you learn anything even after 30 plus years of practice?

Neal Stephens:

My high level takeaway, I had a few. One was the misconduct that happens at trial, and trial's a whirlwind, right? You're working 20-hour days and it happens much more frequently in areas of false testimony from witnesses. It goes uncorrected by the prosecutor, constructive amendments and misstatements and closing arguments. It happens far more than I expected. Some of it is a mistake or inexperience on behalf of the prosecutor, but that's not an excuse. You still have to object to protect your client. Some of it's intentional where the prosecutor knows and they're trying to win as opposed to trying to get justice and they're willing to play in the dark areas.

That was one takeaway. The other one was those prosecutors are looking to win at trial because it's so hard to reverse a conviction on appeal. There's a chapter in the book that walks through how to preserve your objections at trial so you aren't stuck with plain error review on appeal, which is a very pro-government standard, and what a lot of the rogue prosecutors are trying to put you up against on appeal. The third thing was, for me, over the years maturing when it first happened in some of my cases, I was angry and would react by writing briefs in courts that were inflammatory. I've learned that the judges want to come along on these issues slowly as the case develops.

I've learned to make all the objections, but to modulate the tone in which I express them to the court and then try and demonstrate the cumulative amount of misconduct basically will ultimately force a judge to do something at trial. But you're not going to get a case dismissed the first time misconduct happens, so you have to make your pitch a little bit more modulated in tone or the judge will become tone-deaf to your objections.

Dave Dalton:

Sure, sure. You can't argue every call, right? You've got to pick your spots, I suppose, right?

Neal Stephens:

Right. It's like an NFL coach. You can't throw a red flag on and get reviewed every time. That's exactly right.

Dave Dalton:

The book's going to be wonderful. I'm looking forward to reading it. As a matter of fact, I'll get to it before Grisham's book. What do you think of that, Neal? I'm reading yours first.

Neal Stephens:

I'm proud of you, Dave. Thank you for that.

Dave Dalton:

You know what? Your passion and your experience comes through. You got to do seminars or teach or something. The book's going to be wonderful, but this is different hearing you talk to these things because like I said, it just seeps out, the fact that you've been there, you've seen this stuff, and it bothers you, and you're doing something great about it. Congrats for that. But get on the road, go do a bunch of seminars or something.

Neal Stephens:

I'd be absolutely willing to do it, Dave. The takeaway for me, after all my time as a prosecutor and as a criminal defense lawyer, I've been in prisons all over the United States, and I don't care what level prison is, whether it's level one on the federal side or level six, being in prison is brutal, and no innocent American should spend any time in prison. Part of this, for me, was trying to help the criminal defense colleagues in their cases because if one innocent American can beat back on a case where a prosecutor has crossed the line and it leads them to either win at trial or not even get charged, then it is more than worth the effort that it took to sit down and draft this up.

Dave Dalton:

Very well said. The name of the book is Prosecutorial Misconduct: A Practical Guide for Criminal Defense Lawyers. Neal, thanks so much again for talking with us today. Anything else you want to leave these listeners with before we say goodbye?

Neal Stephens:

Yeah, Dave, that's it. Thank you very much for your time.

Dave Dalton:

Hey, we'll leave it right there. Neal, thanks. Let's do another podcast sometime. You don't have to write another book. You got a topic or something's trending or something.

Neal Stephens:

Okay. Well, there will be a second edition at some point.

Dave Dalton:

I'm sure. I can't wait. All right. Hey, Neal, thanks again. Great talking today. Nice job. Thanks.

Neal Stephens:

All right, see you, Dave.

Dave Dalton:

You can find information on Prosecutorial Misconduct, a Practical Guide for Criminal Defense lawyers at AmericanBar.org, or just link the link at the bottom of the Jones Day Talks page. For Neal Stephens contact information and his complete bio visit JonesDay.com. While you're at the site, spend some time on our insights page where you'll find publications, more podcasts, videos, blogs, newsletters, and other timely content. Subscribe to Jones Day talks at Apple Podcasts, or wherever else you find quality podcasts. Jones Day Talks is produced by Tom Kondilas. As always, we thank you. I'm Dave Dalton. We'll talk to you next time.

Speaker 3:

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