A nomination that should be scrutinized closely

I wrote here about the prosecution of Deborah Gore Dean, an official in the Department of Housing and Urban Development during the Reagan administration. In my post, I cited allegations by my friend Jim Scanlan of misconduct in the prosecution of that case by the Independent Counsel, Arlin Adams, and members of his staff.
Last month, President Obama nominated one of those staff members, Robert O’Neill, to be U.S. Attorney for the Middle District of Florida. Jim tells me that O’Neill, in fact, was lead counsel at the trial.
The prosecution’s handling of the Dean case earned severe criticism from the trial court. As Jim recounts:

[A]fter the defendant alleged pervasive prosecutorial misconduct, the trial court specifically agreed with much of what the defendant asserted, including that prosecutors failed to disclose exculpatory material while representing that no such material existed, put on witnesses without attempting to determine whether their testimony was true, and had reason to know that the testimony of at least two government witnesses was false. More generally, the court found that prosecutors had acted in a manner reflecting “at least a zealousness that is not worthy of prosecutors in the federal government …” Reflecting the scope of the abuses it identified, the court repeatedly noted its concerns about their “cumulative effect,” observing that it was “almost impossible to quantify the total impact” of the abuses on the defendant’s ability to defend herself.

All of these criticisms pertain to O’Neill in his capacity as lead counsel. But, as Jim points out, the court also specifically noted that O’Neill had acted in a manner that the court would not have expected from any Assistant United States Attorney who had ever appeared before it. Moreover, the D.C. Circuit, when it reviewed the case, “deplored” certain prosecutor actions and, according to Jim, impliedly found that representations prosecutors made in defense of their actions were false.
Jim also maintains that “the trial and appellate courts had very limited understandings of the scope of prosecutorial abuses perpetrated by O’Neill and his colleagues, in many instances because prosecutors deceived the courts in responding to the defendant’s allegations.” For example, according to Jim, O’Neill and a colleague pressured a government witness into providing testimony that would be interpreted as categorically contradicting the defendant in order that O’Neill could repeatedly and provocatively state that the defendant had lied on the stand. This is one of the matters covered in my earlier post about the case.
Finally, Jim accuses O’Neill of providing inaccurate and misleading statements on his application for the U.S. Attorney job regarding complaints arising from the prosecution of Ms. Dean. O’Neill stated: “After her conviction on all counts, Ms. Dean filed a bar complaint alleging a number of instances of prosecutorial misconduct during the trial.” But according to Jim, Dean did not file a bar complaint and, in fact, there was already an ongoing investigation by Bar Counsel when Jim and counsel for Dean filed their complaint. Jim thus raises the question of whether “O’Neill deliberately misstated the origin of the investigation because he believed that a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission than an investigation initiated by the person or entity that actually initiated it.”
The Middle District of Florida is one of the busiest in the nation, but no district, whatever its size, should have a U.S. Attorney who has engaged in serious past prosecutorial misconduct. I’m no expert in the Dean case and therefore take no position as to whether O’Neill passes that test. But given Jim’s carefully documented allegations, I hope the Senate Judiciary Committee will take a serious look.

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