Tag Archive | Judge

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.



A Reminder of the Power of a Judge and the Impact on People

Two witnesses in trial of Jefferson County judge Dorothea Batiste testify to being jailed on contempt charges

MONTGOMERY, Alabama – Two people testified before theAlabama Court of the Judiciary today that they were not given a chance to defend themselves against contempt of court charges before Jefferson County Circuit Court Judge Dorothea Batiste had them thrown into jail. One witness, a woman, had served three days in jail in 2011 before she was released. In another case, a man testified about serving 12 days in jail last year before his attorney got another judge to release him, according to testimony.

The nine-member court began its trial today for Batiste, who was suspended with pay April 19 after a complaint was filed by the Alabama Judicial Inquiry Commission charging her with 30 violations of the Alabama Canons of Judicial Ethics. The charges relate to her having seven people thrown into jail on contempt charges in five divorce cases that were before her. Most of the people had been witnesses in divorce cases and one involved child support payments.

As the trial began both the prosecutor and a defense attorney argued about the case, which has included charges of political intrigue, discrimination, and sexual harassment.

Griffin Sikes, the Judicial Inquiry Commission attorney prosecuting the case, told the court that the allegations against Batiste are that she didn’t follow the law and allow the seven people she had jailed a chance to respond first and did not allow bail. “This case is about due process of law,” he said.

Sikes urged the judges not to consider Batiste’s various claims of racial and gender discrimination, a political vendetta, selective prosecution, and a sexual harassment complaint against the former presiding Jefferson County judge. Instead, he said, Batiste did not know the law, nor attempted to learn the law, ignored it, or willfully violated it.

“I invite you to keep your eye on the ball,” Sikes said.

Julian McPhillips, an attorney for Batiste, called the prosecution of the only black Republican woman judges in Alabama “one of the worst cases of a railroading.”

Defense attorney Kenneth Shinbaum and Batiste also questioned witnesses today.

McPhillips told the court that at worse Batiste made a good faith mistake. He said that in at least four of the five cases cited were where the judge had used another procedure than contempt – one called a writ of attachment used to order a no-show witness picked up and brought to court.

In a court filing last week, McPhillips had said that had Batiste not issued the attachment orders or contempt citations the other parties who had repeatedly shown up for court would have been denied their due process.

Batiste was a good judge who had cleared the backlog in her court, disposing of 2,259 cases in less than two years, McPhillips argued.

But he said there has been selective prosecution of Batiste, with at least one recent former domestic court judge having used their contempt powers more and holding people in jail longer than Batiste, McPhillips said.

McPhillips also said charges against Batiste were orchestrated by former presiding Jefferson County Circuit Court Judge Scott Vowell, a Democrat who Batiste claims had sexually harassed her and had political agenda.

Vowell has called Batiste’s claims baseless. Also, last week the chief judge of the commission ruled that Batiste could not use the charges as defenses at the trial and could only use it for purposes of impeaching a witness or possibly mitigating any possible penalties.

Two witnesses testified today about Batiste ordering them jailed before they had a chance to respond.

Sonja Bell testified that she spent three days in the Jefferson County Jail. She said that in August 2011 she had found a subpoena on her door to testify at a hearing at a divorce case – not her case – scheduled for two days later. But she was scheduled to leave on a pre-planned vacation that same day and called Batiste’s office to inquire. She said she also called a lawyer who advised her that the subpoena had not been properly served so she didn’t have to go to the hearing.

While on vacation she learned Batiste had issued a contempt order against Bell ordering her to jail for five days. She hired an attorney, who also told the commission today that he couldn’t get Batiste to hold a hearing on the contempt charge unless Bell first served jail time.

Bell said she served three days over a weekend before being released the following Monday.

Bell said she was exposed to a crack addict and a heroin addict. “I felt like I had a death sentence almost. It wasn’t fair,” she said.

Curtis Austin testified that he was arrested and jailed 12 days after Batiste issued an order he was unaware of for missing a court appearance of which he had no prior notice. He said he was behind on child support and the hearing was regarding an increase in payments.

Everett Wess, a Birmingham attorney who was hired by Austin’s current wife, testified that after repeated attempts try to get Batiste to hold a hearing, he went to another judge, Jefferson County Circuit Court Judge Robert Vance, to issue an order releasing Austin.

“I was just trying to get my client out of jail as soon as I could because I thought he was being held unconstitutionally,” Wess said.

Wess had hired Batiste to work in his law office about 10 years ago, but had to let her go because she didn’t understand some fundamental issues in the law. But he said he did donate to and support her campaign for the bench.

Testimony in the trial restarts at 9 a.m. Tuesday. The trial is to continue at least through Wednesday.