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White Collar Crime Blog – Assistant Federal Public Defender Debra Migdal

It is always a little  scary when we are reminded how much  power  a judge has over a person’s life, livelyhood, and freedom.  I also wonder if this had been a prosecutor if there would have been these sanctions.  I notice that the prosecutor who asked for the sanctions, which his own office said he did not have the authority to do, did not appear to have been  sanctioned by the district  judge.

Sixth Circuit Vindicates Assistant Federal Public Defender Debra Migdal.

By Solomon Wisenberg

How many federal appellate opinions begin like this?

“An attorney’s reputation is her most valuable possession. It forms the basis for her peers’ view of her and plays an important role-often a determinative one-in how she advances in her career. This case began with a government attorney’s unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal.”

And how many of them end like this?

“This opinion closes the book on a regrettable chapter in Debra Migdal‘s career, clears her of all claims that her conduct in this matter was sanctionable, and removes any taint of public censure on her reputation.”

As anyone who practices criminal law in the federal court system knows, different districts, and sometimes different judges within a district, have different rules, formal and/or informal, for the issuance of subpoenas demanding early document production pursuant to Fed. R. Crim. Proc. 17(c). Some districts allow prosecutors and defense attorneys to issue the subpoenas, and examine documents, on their own. Other districts require a motion and court order. (Of course, the playing field is uneven, because the prosecution typically has the evidence it needs well before trial through the use of grand jury subpoenas.)

In 2011 Debra Migdal was an Assistant Federal Public Defender in the Northern District of Ohio handling a case in front of U.S. District Judge John R. Adams. At the time, neither the Northern District of Ohio nor Adams had any formal policy regarding the issuance of Rule 17(c) subpoenas. Migdal issued two Rule 17(c) subpoenas on her own, one of which was sent to the custodian of records at the U.S. Border Control, calling for the early production of materials in Judge Adam’s court, but on a day she designated that was prior to a scheduled court date. Two previous district court opinions in the Northern District, neither of which were written by Judge Adams, had come to opposite conclusions about the propriety of issuing such subpoenas absent the court’s permission. Migdal was unaware of the opinion holding that a court order is necessary.

Migdal used Administrative Office of the U.S. Courts Form AO 89, which commands the both the appearance and testimony of the witness and, if necessary, the production of documents. In other words, unless the issuer crosses out the part of the authorized pre-printed form calling on the witness to testify, he/she is always commanded to appear and testify, even though in many cases the issuing party is only interested in obtaining documents. By way of contrast, on the federal civil side, there are two authorized subpoena forms, one calling for documents only and one calling for witness testimony.

AUSA Gregory Sasse told the Border Patrol Agent to ignore the subpoena. Sasse then moved to quash the subpoena and asked the court to impose whatever sanctions it deemed appropriate. Sasse wasn’t authorized to move for sanctions and his superiors later withdrew this request. But Judge Adams was clearly not happy with Migdal. He held two hearings and publicly sanctioned Migdal under 28 U.S.C. Section 1927 and his inherent authority.

Section 1927 reads as follows:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

The Sixth Circuit, noting that nothing whatsoever in the statute’s language authorizes the imposition of non-monetary sanctions, ruled that Judge Adams abused his discretion in sanctioning Migdal under 1927.

The Sixth Circuit then rejected the three rationales Judge Adams relied on for sanctioning Migdal pursuant to his inherent authority. (Any sanctions against Migdal required a showing of bad faith on her part.)

1. Adams had ruled that a criminal defendant is entitled to materials under Rule 17(c) “only after requesting-and not getting-the necessary items from the government via Rule 16 discovery.” Incredibly, he believed he had the inherent authority to sanction Migdal for failing to follow this protocol. But as the Sixth Circuit pointed out, no such protocol exists under Rules 16 and 17.

2. Adams had ruled that Migdal violated her duty of candor to to the court by commanding production at a  hearing that had not been scheduled or requested. (He referred to it as a “fabricated” hearing.) Migdal acknowledged that the subpoenas were defective in this regard, apologized to the court, and argued that she had not acted in bad faith. The Sixth Circuit agreed, emphasizing that: a) AO Form 89 lacks clarity; b) Migdal called for production in Judge Adams’ courtroom, so she was obviously not trying to hide anything from the court; c) the longstanding practice in Migdal’s office and in many Federal Public Defender Offices, was to issue Rule 17(c) subpoenas without prior court approval; and d) Migdal relied on a prior Northern District of Ohio opinion specifically authorizing issuance of Rule 17(c) subpoenas without prior court approval. Judge Adams noted that he preferred the contrary judicial opinion. “But Judge Adams’ inclination to side with one judge’s view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge’s reading of the controlling rule.”

3. Adams had ruled that Migdal “utterly disregarded Rule 17(c)’s implicit requirement that the court must approve and order early-production subpoenas.” (internal quotations omitted). The Sixth Circuit carefully pointed out that reasonable people could disagree on this point, as evidenced by the conflicting district court opinions. That Migdal chose to take a view of Rule 17(c) at odds with Judge Adams’ position, at a time when there was no clear controlling authority, could hardly amount to bad faith.

Throughout Judge Jane Stranch’s opinion, for a unanimous Sixth Circuit panel, there runs a tone of incredulity at Judge Adams’ actions in “branding a blemish on Migdal’s reputation.” It should never have happened. It should never happen again.

Here is the Sixth Circuit Migdal Vindication Opinion.

Congratulations to AFPD Migdal, by all accounts a fearless and hardworking AFPD. Congratulations to her attorney Greg Poe, of Poe & Burton, who wrote the brief and argued the case.


Article from New Blog “Deliberations” about Jurors and Jury Selection


By: Michelle-Ramos Burkhart
A recent study conducted by the Pew Research Center in 2013 found the following increases in media use over the past decade (from 2000 to 2010):
  • The average internet use by adults rose from 46% to 79%
  • The use of home broadband rose from 5% to 64%
  • The ownership of cell phone use rose from 50% to 82%
  • Social network users rose from 0% to 48%
There is no question that the media now permeates every aspect of daily life.  On average, individuals spend 30% of their waking hours using some form of media (Lamb, 2005).  It is reasonable to assume from these figures that media has also significantly affected the justice system and our legal process.
Although across the U.S. crime rates have continuously declined, researchers are now examining the effects of media sensationalism and the everyday visual access to crime scenes via television and internet on jurors’ perceptions and opinions.  Many jury consultants would agree that there is a relationship between legal media reporting and viewing and a juror’s opinions on everything from an attorney’s demeanor to their position on the death penalty.
Not only does television and internet have the ability to alter jurors’ perceptions, so does radio, music, video games, social media, and newspapers.  The media can also impact selected jurors despite jury instructions given in the courtroom.  Take the Jodi Arias trial for instance, where post-conviction and pre-sentencing communications were discovered on a juror’s Facebook page where she wrote: “If she [Arias] does have Latina blood, it may explain a temper lol,” Juror No. 17, wrote in the comment field (Winch, 2013).
The media is a market driven institution that produces or pitches stories 24/7 for public enjoyment, entertainment, and ratings.  High profile court cases have seemingly generated some of the top ratings and it is clear the public simply can’t get enough. The manipulation is of great concern for many; take for example the Trayvon Martin case.  While pundits were focused on the defense and prosecution strategy, there were several days when the media’s sole focus was on the “celebrity” of the prosecutor who was holding regular press conferences and receiving legal “rock star” treatment. Furthermore, media publicity often creates biases, prejudices, and stereotypes to be developed within one’s potential juror pool.  According to a study by Dexter, Penrod, and Otto (1994), trial evidence can lessen the prejudice that is developed by pre-trial media but it cannot eliminate it completely.  Overall, the literature supports the argument that pretrial publicity shapes verdicts (Studebaker, 2002).
The influence of pre-trial media can easily be seen in numerous recent cases; headline news outlets often present the coverage with interesting and often inflammatory bylines that captivate public interest.  The media can significantly influence opinions about the legal issues presented and often provides misinformation about the law, evidence, or facts altogether. Viewing a court case exclusively through the media creates potentially erroneous perceptions, judgments, and ideas about our judicial system and legal process.  Those viewing today will be called tomorrow to serve with those misperceptions and biased opinions.
When is media coverage too much?  Is it time to set some guidelines that must be adhered to beyond the sole discretion of the judge in a given case?  As a legal psychologist and lawyer, I think we are ineffectively addressing the media issue, but under whose jurisdiction does the rule making lie?  It is hard to know and even harder to come to a consensus in the field.  When fashioning a remedy to protect a defendant’s right to a fair trial, a trial judge must balance the accused’s Sixth Amendment right to a fair trial with the media’s First Amendment right to freedom of the press and this presents a challenge. Courts have historically applied such remedies as venue changes, jury instructions,  and sequestration, many of which have ben found to be fairly ineffective at protecting a defendant’s right to a fair trial (Bunker, 1997).  Many believe this is a non-issue, while others feel strongly that it is destroying the fairness and impartiality of our trials in this country.  While the opinions and solutions may not be clear, one thing is for certain: the media’s appetite for legal cases is only going to grow with their ratings.  The question is how or when do we as advocates for equal and fair justice decide when enough is enough?
Perhaps consultants can add value and educate attorney clients through technology, and offer more pre-trial media meta-analyses. Perhaps researchers can conduct post-trial media assessments that examine jurors’ decision making processes, including how prior media exposure informs and influences those decisions.  Perhaps more practical research data can be conducted through post jury interviews, rather than simply relying on higher education research conducted in academic settings — this practical research might add more value to the field and offer a more realistic look at the impact of pre-trial publicity. There are no easy solutions to be sure, but work needs to be done because as technology advances, so will jurors’ exposure in all forms. We need to embrace the new paradigm and lead the legal field on being responsive to this new lens through which jurors view the judicial process.
Bunker, M.D. (1997).  Justice and the Media: Reconciling Fair Trials and a Free Press.
Dexter, Penrod, and Otto (1994) The biasing impact of pretrial publicity on juror judgments. Law and Human Behavior, 1 (4) 453-469.
Lamb, G. M. (2005).  We swim in an ocean of media. Last retrieved at
Pew Internet and American Life Project.  (2011). (last visited Dec. 1, 2011)
Studebaker, C.A. (2002) Studying Pretrial Publicity Effects, New methods for improving ecological validity and testing external validity, Law and Human Behavior, 26, 29.
Winch, G. (2013) The problem with jurors and tweeting. Last retrieved at
Author Snapshot:
Michelle Ramos-Burkhart, J.D., LL.M is the founder and president of Verdict Works, LLC, a trial consulting firm based in Long Beach, CA.  You can learn more about Verdict Works at or contact Michelle directly at

Series of Articles Alleging Prosecutorial Misconduct alleged Capital Cases

Prosecutorial misconduct alleged in half of capital cases

Part 1 of 4

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.

A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.

The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.

Milke denied confessing.

The detective had not recorded the interview, and there were no witnesses to the confession.

When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.

“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

“(T)he Constitution requires a fair trial,” the ruling said, “and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence.”

The 9th Circuit judges ordered that Milke be retried within 90 days or be released.

The chief circuit judge referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective’s personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law-enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don’t expect them to exaggerate or withhold evidence. They don’t expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest — when a trial involves a possible death sentence — that’s exactly what can happen.

In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being over emotional to encouraging perjury.

Nearly half those allegations were validated by the Arizona Supreme Court.

Only two death sentences were thrown out — one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it.

Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated.

Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke’s get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

See more stories at:

Caution: Your GPS Ankle Bracelet Is Listening

October 25, 2013 06:48:44 am

By Waldo D. Covas Quevedo

When defense lawyer Fermín L. Arraiza-Navas sat down with a prospective client in San Juan, Puerto Rico last April, he casually asked the man about the Global Positioning System (GPS) ankle bracelet that he was wearing as a condition for his bail.

The reply was just as casual.

“They speak to me through that thing,” the man said.

It wasn’t the first time the lawyer encountered GPS bracelets with apparently extraordinary powers. He told the Puerto Rico Center for Investigative Reporting (CPIPR) that a previous defendant’s GPS ankle bracelet started to vibrate during a meeting with him.

But Arraiza-Navas decided this was more than a coincidence. He cancelled the meeting and filed a motion at the Puerto Rico State Superior Court in San Juan to have the device removed.

During the court hearing on the motion, his worst suspicions were confirmed.

A Corrections Department agent, who works at the Puerto Rico Pretrial Services Office’s monitoring center for defendants free on bail, placed a GPS ankle bracelet on the court podium and made a call from the device to a technician of the SecureAlert company, which provides them at a facility in Sandy, Utah.

The technician, who was addressed through the GPS ankle bracelet—which has a phone feature—testified that, although the device is supposed to vibrate when activated from Utah, the feature could be turned on without warning.

Superior Judge Elizabeth Linares ordered the device removed within the Court’s cell area for the duration of the meeting between the defendant and his defense counsel.

But the discovery has raised serious questions about whether such technology violates the confidentiality of the attorney-client relationship—and the right to privacy—for thousands of individuals under court supervision across the U.S. whose personal private conversations could be heard or recorded without their knowledge and without a court warrant.

Civil Liberties Concerns

These concerns were shared by privacy experts and civil liberties attorneys contacted by the Puerto Rico Center for Investigative Reporting.

Puerto Rico Constitutional legal expert Carlos E. Ramos, who teaches at the Interamerican University Law School, said “the state [efforts] to listen and/or record the unauthorized conversations between a defendant with his or her lawyer through an electronic GPS-bracelet represents the most absolute and gross infringement to that person’s constitutional rights.”

“If that action is conducted through a private company, the infringement is magnified,” Ramos added.

During the court hearing, Arraiza-Navas noted that no alarm or signal was heard or seen when the electronic communication was allegedly finished.

In his motion to the court, the lawyer stated that the system’s operators had informed his office that the device was able to “activate unilaterally” from the command post and that “the conversations could be heard.”

However, Assistant San Juan District Attorney Erika Quiñones-González denied that the device infringed on the defendants constitutional rights.

Quiñones-González asserted in a motion contained in the case file that “the supervised defendant is warned by a vibration and sound before the line is open to allow communication.”

She added in her motion that when the phone call is over the GPS electronic supervision system emits the phrase “Secure Alert: disconnect call”.

The prosecution also claimed the controversy was premature because it was not proven that his constitutional rights were violated.

Opening the Line

However, in her response, Quiñones-González also stated that the Pretrial Services Command Control officer testified that there are two ways to open the phone line: one is announcing the call by the vibration and a particular loud sound.

“The supervised defendant does not have to take action and the line is opened so that the agent can provide instructions or communicate with the supervised defendant, as the case may be” if the protocol is activated by some alert, she said

The second method: when the supervised defendant clicks a button to notify the Command Center of an emergency, the system emits the phrase “Secure Alert: disconnect call” so that both know that the call is over and close the communication.

Issa L. Toledo-Colón, Deputy Executive Director of the Puerto Rico State Pretrial Services Office, said that the Commonwealth supervises 714 defendants awaiting trial with the traditional Radio Frequency (RF) ankle bracelets through a contract with Behavior Intelligence International, and another 337 with GPS-cellular phone ankle bracelets through a contract with SecureAlert.

An Associated Press investigation published in July estimated that as many as 100,000 sex offenders, parolees and suspects are free on bail wearing ankle bracelets.

The Prison Legal News, a printed and on-line publication aimed primarily at an inmate readership, estimates that 200,000 persons are under some sort of ankle bracelet electronic monitoring.

GPS ankle bracelets were introduced in the last decade to replace the original devices, in wide use around the U.S. since the 1980s, that require a land phone line. The bracelets alert a monitoring center when the person wearing it is away from the perimeter established by the court, usually their own home.

More sophisticated version of these devices have the same features as a cellular phone. They provide real time monitoring, with the capacity to record the location of the person wearing it—thereby allowing authorities to be warned if the suspect or convict is in a banned area or to confirm the individual is complying with his or her work, study, medical or other activities agreed with the court.

The high-tech surveillance capability of these devices represents an overstep of the state’s right to supervise a defendant charged with a crime, Arraiza-Navas wrote the court.

Calling the practice “flagrantly unconstitutional,” he said “it cannot be supported by law that in order to be set free under bail [persons] charged with a crime have to waive their right to privacy and to keep their conversations with attorneys confidential.”

Experts Shocked

Leading legal experts in Puerto Rico and the U.S. expressed serious concerns about the possibility of government and private companies providing electronic ankle bracelets being able to eavesdrop or record private conversations of the persons wearing them.

The lawyers claim this violates the Fourth Amendment, as well as the Federal Wiretap Act and the Puerto Rico Constitution.

Victor A. Meléndez-Lugo, Director for the Appeals Division for the Puerto Rico Legal Aid Society, said that he has not heard of any similar case and found the possibility “shocking”.

“The recording or interception of phone calls in Puerto Rico constitutes a crime”, Meléndez-Lugo added. “If that is happening in Puerto Rico it has to stop happening since yesterday.”

William Ramírez, Executive Director for the Puerto Rico Chapter of the American Civil Liberties Union, said defendants have a right to privacy to avoid self-incrimination—a right that could be infringed if they are unaware that their conversations could be listened to or recorded by the Pretrial Services Office, or by the private company that provides the GPS/cellular phone ankle bracelet.

According to Ramírez , the right to post bail under the condition of wearing an ankle bracelet is not an automatic waiver to the right to privacy.

Other civil liberties advocates agreed.

Ben Wizner, Senior Staff Attorney for the ACLU in Washington, D. C. said it was the first time he had heard of such a case, adding that “if it allows eavesdropping or to record conversations, (it) is a very important issue that is worth exploring.”

Jerry J. Cox, President of the National Association of Criminal Defense Lawyers, expressed concern for the incident in written remarks to the CPIPR.

“If law enforcement agencies anywhere in this country are using such microphone-equipped GPS ankle bracelets they must, at a minimum, make both a general disclosure of that fact to the public and our elected representatives, as well as a specific and complete disclosure of that fact to each and every person who might wear one of those ankle bracelets, as well as to his or her attorney,” Cox wrote.

“And under no circumstances whatsoever can there be any intrusion into the confidential and privileged discussions between any person and their counsel.”

Waldo D. Covas Quevedo is a reporter for the Puerto Rico Center for Investigative Reporting. The original, longer version of this story appeared in Spanish in the Centro de Periodismo Investigativo de Puerto Rico(CPIPR) website, and is reprinted through the services of the Investigative News Network. He welcomes comments from readers.

From White Collar Professor Blog on Daubert Claim

11th Circuit Reverses Health Care Fraud Conviction

In an unpublished opinion by the 11th Circuit, the court  in United States v. Reddy reversed and remanded a conviction coming out of a 7 day trial that started with a 37 count Indictment and had convictions for all but five wire fraud counts.  This health care case included counts of mail fraud, wire fraud, health care fraud, and falsifying records in a federal investigation.  At the heart of the reversal is a Daubert claim. Looking at the proposed expert’s qualifications, reliability of the methodology, and relevance, the cout found that the error was not harmless in that what the expert “had to say about his peer review and accuracy of the work performed by” the accused “was highly probative and would have likely been helpful to the jury.”

The court did note that the Indictment should not have been dismissed premised upon another argument made by the defendant. The court said that Section 1347 is a federal offense and “the underlying conduct must have an interstate nexus or other ‘jurisdictional hook.'”  But the court noted that the “Indictment’s language generally tracks the statutory language” and therefore “is sufficient to withstand a motion to dismiss.”

The defense in this case was handled by the Altanta, Georgia law firm of Kish and Lietz.


Trial Insider – Police Dog’s Bad Record Upends Murder Conviction


July 29, 2013

The state prosecution’s handling of this Los Angeles murder case just smells bad.  The 9th U.S. Circuit Court of Appeals overturned the murder conviction of Gilbert Aguilar Monday, because state prosecutors failed to disclose the police dog that identified Aguilar’s scent had a history of mistaken scent identifications.

The only question in Aguilar’s case was the identity of the shooter who killed John Guerrero in 2001 while his car was stopped at a stoplight.

Aguilar’s defense was that another young Hispanic man, Richard Osuna, shot Guerrero.

Prosecutors produced evidence that “Reilly” the police dog alerted to a scent allegedly showing Aguilar’s scent was present on the front passenger seat of a car carrying the shooter.

What the prosecution did not do was mention that Reilly had a history of making mistaken scent IDs, even though it had stipulated to Reilly’s mistakes in a different trial several months earlier.

In addition, the dog’s scent ID was the only evidence linking Aguilar to the car.  While evidence against Aguilar was weak, “substantial” evidence suggested Osuna as the potential killer, according to Judge William Fletcher.

Osuna’s brother was shot several days before Guerrero was shot.  Two witnesses testified that Osuna jumped into a white Volkswager Beetle to pursue Guerrero’s car. Another witness testified Osuna toler her he had shot a “fool.”  But he was never investigated as a suspect.  In fact, the prosecutor in this case “expressly told the police not to pursue an investigation of Osuna,” Fletcher wrote, because it would be a “wild goose chase.”

By contrast, there was no clear motive for Aguilar to shoot Guerrero, no physical evidence tied him to the crime and the faces of Aguilar and Osuna are very similar but Aguilar is older and significantly taller.

Fingerprints later recovered in the Volkswagon matched Osuna but not Aguilar, according to the opinion.

Eye witnesses identified Aguilar as the shooter, but several of those earlier gave police physical descriptions that matched Osuna, rather than Aguilar.  At trial, the witnesses changed their descriptions to match Aguilar.

He was convicted in 2006.

A California Court of Appeal upheld Aguilar’s conviction, rejecting the dog-scent evidence issue.  Aguilar then took his appeals to federal court.

Fletcher found the prosecution failure to tell Aguilar’s defense lawyers about Reilly’s scenting problems was what’s known as a Brady violation, a standard that requires the government to turn over, or disclose, evidence potentially helpful to the defense.

Whether or not the trial prosecutor knew about Reilly’s history, the dog’s handler did and had an obligation to disclose it, according to Fletcher.

Aguilar must be released or given a new trial.

He was joined by Judges Harry Pregerson and Mark Bennett, visiting from the Northern District of Iowa.

Case:  Aguilar v. Woodford, No. 09-55575

Legal Times – Judge Says Filing Errors May Prompt Review of ‘Hundreds’ of Cases

The chief judge of Washington’s federal district court said he expects the court will have to review hundreds of arrest and search warrant dockets after learning this week that the clerk’s office failed to publicly file an unsealed search warrant in a high-profile government leaks case.

In an order entered today, U.S. District Chief Judge Royce Lamberth apologized for a series of administrative errors that resulted in the continued secrecy of materials that had been previously unsealed in the case against Stephen Jin-Woo Kim, a former government adviser accused of leaking classified information about North Korea. The order was first reported by The Washington Post. As part of the leaks investigation, prosecutors obtained a search warrant to review Fox News reporter James Rosen’s e-mails.

In an interview today, Lamberth said the mistakes were the result of human error in the clerk’s office and he had no sense yet of whether similar problems occurred in other cases. “We’re a public institution, we’re accountable to the public,” Lamberth said. “We shouldn’t allow this to happen.”

He said the court was investigating the errors, but his understanding was supervisors who were supposed to make sure court orders were carried out failed to do so. “The best explanation I can get is, they were busy,” he said, adding he was “embarrassed” by the situation.

The clerk of the court, Angela Caesar, could not immediately be reached this afternoon.

Lamberth’s order identified a series of administrative errors in Kim’s case. In September 2010, Lamberth issued a sealed opinion finding the government was not required to give Rosen—or any subscriber whose email account was the subject of a search warrant under the Electronic Communications Privacy Act—notice of the search warrant.

A redacted version of the opinion was supposed to be made public two months later, but was instead filed under seal. Lamberth said he didn’t learn of the error until reporters asked about it this week.

Unsealed, redacted versions of the search warrant for Rosen’s e-mails and other related materials were supposed to be entered on the public docket in November 2011, but weren’t properly filed until May 16, after the clerk’s office received media inquiries.

Lamberth’s order referenced two other cases in which a search warrant and other materials were supposed to be entered on the public docket and were not. A search of those cases showed they were still sealed as of this afternoon. A court representative said they would become available tomorrow.

The errors prompted Lamberth to request that the court’s website include a section where the public could review unsealed search and arrest warrants; he said he hoped it would go up within the next few days. Lamberth said hard copies of warrants used to be available for review in the clerk’s office, but when the court switched to an electronic filing system provisions weren’t made to make them easily available online.

Lamberth said he’s considering other options to make warrants more accessible, such as finding a way to marry the unique case numbers entered for warrant matters with the case numbers for related criminal proceedings.

As for the review of past warrant dockets to check for similar mistakes, Lamberth said he wasn’t sure how the court would handle it, but thought it was necessary. “I think we have to do that, when we screwed up this badly,” he said.