Berger v. US

Not Opinion, FACT: AG Bondi Is Wrong and Unethical To Suspend Justice’s Acting Deputy Director of the Office of Immigration Litigation

/ Jack Marshall / 10 Comments
- This is your opinion? - It's a fact.

I was afraid of this.

I am completely in sympathy with President Trump’s determination to have only people he can trust as his department and agency heads after his first term debacle, when so many people stabbed him in the back that his suits must have looked like pin cushions. Nonetheless, appointing Pam Bondi as Attorney General was reckless and hard to defend, as Bondi and “legal ethics” have seldom been compatible. This episode is a particularly blatant example.

Erez Reuveni has worked at the Justice Department for nearly 15 years, most recently as the acting deputy director of the Office of Immigration Litigation. Reuveni appeared in federal court in Maryland last week to respond to the court’s questions regarding the government’s admission that it should not have deported Kilmar Abrego García on March 15 as part of the airlift of purported gang members to the Terrorism Confinement Center in El Salvador. Reuveni acknowledged the mistake and told a judge that he did not know what authority the U.S. used to deport Abrego García. “My answer to a lot of these questions is going to be frustrating,” Reuveni told U.S. District Judge Paula Xinis. “And I’m frustrated that I don’t have answers to a lot of these questions.” Xinis ordered the Trump administration to arrange the return of Abrego García, who is married to a U.S. citizen, by no later than 11:59 p.m. today.

Attorney General Bondi promptly suspended Reuveni. Bondi explained, “At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States. Any attorney who fails to abide by this direction will face consequences.”

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Ethics Dunce: The Ninth Circuit Court Of Appeals

/ Jack Marshall / 11 Comments

The unethical prosecutor in US v, Flores. Watch out for her!

The unethical prosecutor in State v. Flores. Watch out for her!

It’s always heartening to see a court cite the 1935 Supreme Court case of  Berger v. United States, 295 U.S. 78, (1935), famous in legal ethics circles for its ringing statement that government lawyers must understand that their obligation “in a criminal prosecution is not that it shall win . . . , but that justice shall be done.”  The principle has been extended by some judges to civil cases as well, making the point that the government in any legal dispute should be interested only in the best interests of citizens and getting the case right. It is less heartening when the cite is in a dissent, as in this case.

The Ninth Circuit, reviewing a conviction for illegal drug importation, conceded that the prosecutor crossed into unethical territory by misstating the law,misstating the defendant’s testimony, and improperly vouching for a witness. Nonetheless, the court in State v. Flores concluded that this misconduct didn’t rise to the level of “plain error,” meaning that the defendant would have been found guilty anyway:

“In sum, while the government misrepresented Flores’s testimony and misstated the law on multiple occasions, in the context of the trial as a whole, it is unlikely that the jury was misled about the law or the facts.”

That’s right: the government misrepresented facts and law, but the jury was probably not misled. Continue reading →