Thursday, February 25th, 2021

Court issues opinion detailing SDNY prosecutorial misconduct

On February 22, 2021, the district court issued its full opinion regarding prosecutorial misconduct issues in United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN), and made public affidavits filed by United States Attorneys involved in the case. The full opinion is here.

In this opinion, the district court restates that it did not find proof of intentional misconduct, but nonetheless finds “pervasive” “errors and ethical lapses.”

With respect to these lapses, the publicly filed exhibits include, inter alia, these exchanges between the U.S. Attorney supervisors involved in the case:

Crowley, Shawn (USANYS) 5:26 PM:
i think i’m going to stop with the closing and devote the rest of the night to cleaning out my
Emil J. . Bove 5:26 PM:
i was just going to write to you – like the window was on my screen and yours popped in – are we
just awful at this
Crowley, Shawn (USANYS) 5:27 PM:
i honestly do not see how this is on us at all? like are we supposed to review their files?
Emil J. . Bove 5:27 PM:
no its crazy but i also feel like its our unit and the unit is behaving like we’re in vc
Crowley, Shawn (USANYS) 5:27 PM:
but you are definitely right that is how this will be perceived
Emil J. . Bove 5:27 PM:

like i can’t even make the joke about vc bc they are better than us right now
even in that meeting there was a resistance to acknowledging the gravity from some of them, i guess
mainly krouse, who just doesn’t care
jane’s looking down like its not her issue even though she’s on the email
[. . . .]
Emil J. . Bove 6:04 PM:
the dc cir case is actually a lot more defensible than what happened here

(“VC” appears to refer to “Violent Crimes,” another unit in the SDNY U.S. Attorney’s Office.)

Yet as the district court notes in its opinion discussing a written misrepresentation to the court about these disclosure issues:

Whether the misrepresentation was intentional or not, the Unit Chiefs recognized upon reading the filed letter the following morning that it contained a misrepresentation. Bove Decl., Ex. 34. “I have mixed feelings about sympathy [for how the AUSAs would fare in the upcoming hearing],” Chief Bove wrote in a text message to Chief Crowley. “[T]hey’ve done some pretty aggressive stuff here over the last few days.” Chief Crowley responded: “Yeah we lied in that letter.”

Yet AUSA Krouse and the Unit Chiefs took a different tone in a hearing before the Court only an hour later. AUSA Krouse characterized the statement in the letter as “imprecise.” Dkt. No. 322 at 991. Chief Bove then addressed the Court. While offering an apology, he too suggested that language was intended to convey something meaningful and true to the Court: “Ms. Crowley and I reviewed that letter in realtime before it was filed—our understanding in submitting that language to your Honor was that this clearly marked language that has been addressed here this morning related to the fact that the document had been marked as a government exhibit with a yellow government sticker. That is what we intended to convey with that.” Id. at 997. As before, the prosecutors—including the Unit Chiefs—dug themselves in deeper rather than squarely take responsibility for their past missteps.

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