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Office of the United States Attorney rebuffed by Judge Parrish over request to retract written criticism of prosecutor

Adolphus Nickleberry Court Case

A recent article from City Weekly reported on a request from the Office of the United States Attorney to a federal judge to withdraw her written criticism from her decision on a motion to suppress.  A docket entry from March 4, 2016 in one of federal court Judge Jill Parrish’s cases reveals that Judge Parrish met in chambers with David Backman, deputy chief of the Office of the United States Attorney for Utah’s criminal division, and a prosecutor Backman supervises, Jacob Strain.  Backman had also asked Scott Wilson, 1st assistant of Utah’s Federal Public Defender office, and federal defender Vanessa Ramos to attend the meeting.  The meeting was held at the request of Backman, according to the court’s record.

Strain was prosecuting 51-year-old Adolphus Nickleberry before Judge Parrish for possessing a gun while being a restricted person.  Federal defender Ramos was Nickleberry’s defense attorney.

At first, Judge Parrish thought that the meeting was being called in order to work out a plea for Nickleberry.  However, as soon as the meeting began, Judge Parrish realized the meeting had nothing to do with a plea deal for Nickleberry.  Instead, the Office of the United States Attorney asked Judge Parrish to retract her recent written criticism of Strain.

Judge Parrish Admonishes Prosecutor

In late February 2016, Judge Parrish issued a Memorandum Decision and Order Granting Defendant’s Motion to Suppress, wherein she raised serious concerns regarding Strain’s briefing.  The Defendant’s Motion to Suppress revolved around an undercover Unified Police Department officer’s illegal impoundment of Nickleberry’s girlfriend’s car in which Nickleberry was a passenger.  While the Judge ruled the ultimately ruled to suppress the evidence against Nickleberry, it was her scolding of Strain that drew the attention of the US Attorney’s Office.

Prosecutor Failed to Disclose Controlling Law

In her decision, Judge Parrish spent approximately four paragraphs at the outset addressing Strain’s (mis)conduct.  First, Judge Parrish stated, “the United States failed to disclose controlling law directly adverse to its position,” even though the Office of the United States Attorney admitted that they had reviewed the controlling law prior to filing their original response.  Judge Parrish said that the Office of the United States Attorney, in supplemental briefing ordered by the court, stated: “In preparing the original Response, counsel for the United States reviewed United States v. Sanders, for general legal principles on impoundments, but did not cite the case because its facts are far different from the case at bar.”  Judge replied that “[e]ven if Sanders were distinguishable on the facts as the United States suggests, counsel still had a duty to disclose the case to the court” under Rule 3.3(a)(2), Utah Rules of Professional Conduct.

Prosecutor Did Not Note That Opinion was Unpublished

Second, the court said that in the Office of the United States Attorney’s response to the Motion to Suppress, the United States cited United States v. Clasen, but failed to disclose to the court that “Clasen is an unpublished opinion and thus not binding precedent.”  It was not until the court requested supplemental briefing that the US Attorney’s Office disclosed that Clasen was unpublished.

Prosecutor Did Not Properly Disclose Facts of Case Relied Upon

Finally, Judge Parrish took issue with Strain analysis of United States v. Ruby-Burrow, which Strain argued stood for the proposition that the Utah impoundment statute applies to cars that turn of a public highway into a private parking lot.  In describing Ruby-Burrow, Strain said that, after a traffic accident, a Utah state trooper “arranged to move everyone in the accident to a staging location.” It continued, “[d]espite the fact that the vehicle was no longer on a public highway and had been moved to a staging location at the request of the trooper, Judge Benson held ‘Trooper Harris’ actions were reasonable and appropriate under the circumstances.’”  Addressing Strain’s quote regarding the Ruby-Burrow case, Judge Parrish stated: “What the United States did not disclose, however, is the fact that the “staging location” was not a private parking lot, but rather the public parking lot of a Utah Highway Patrol office.”

In conclusion, Judge Parrish said: “The court hopes these deficiencies were unintentional. In the future, counsel for the United States should carefully consider the representations it makes to the court and properly disclose controlling law, even though it may be unfavorable to its position.”

Judge Parrish Blindsided by Request to Recant Criticism

At the private meeting requested by Backman, Judge Parrish anticipated that Backman wanted to apologize for Strain’s errors, but that was not the case.  Instead, Backman asked Judge Parrish to remove the aforementioned paragraphs about Strain’s briefing.  Backman apparently told Judge Parrish that he wanted to avoid having to report concerns to the Office of Professional Responsibility in Washington, D.C. that investigates allegations of misconduct against federal prosecutors, “and particularly avoid any repercussions for Mr. Strain,” Parrish recalled.

Judge Parrish also read into the court’s record that Backman asked her that in the future to contact the Office of the United States Attorney with any concerns regarding its prosecutors as opposed to levying those in a written opinion.  Judge Parrish said that to do so would be “unethical or inappropriate,” to which Backman replied that such communication would not relate to the case.  “I responded how attorneys perform on a pending matter could not be divorced from the substance of the case,” Judge Parrish said.

Federal Public Defender’s Office Notes Broader Concern About Preferential Treatment for Office of the United States Attorney

According to Judge Parrish, Scott Wilson noted that he had “serious concerns with what he perceived as a broader issue, namely that the U.S. Attorney’s Office had historically received preferential treatment in Utah.” He told Parrish that he found it problematic that judges were calling out public defenders in their written opinions for deficiencies but not prosecutors, for fear of triggering the reporting requirement to the federal government.

In response to requests from City Weekly, Backman stated in an email that both prosecutors and defense attorneys make mistakes.  Specifically, Backman said, “It should come as no surprise that we will attempt to support our prosecutors and raise the issue with the judge when they are the subject of criticism in a written opinion.”  Backman even went so far as to say that he would support Judge Parrish’s decision to remove criticism of a defense attorney in an opinion if a defense attorney made the same request.  Wilson responded that the Public Defender’s office had “never, ever made such a request to my knowledge.”

Backman also told the court that an internal review at the Office of the United States Attorney found that Strain’s briefing, while erroneous, was “not a deliberate misrepresentation of the law.”  Backman concluded that because Judge Parrish’s ruling did not find misconduct it did not require him to report Strain to Washington.

Davis County Prosecutor Troy Rawlings Weighs In

In the wake of Judge Parrish’s ruling, a number of other prosecutors and defense attorneys have weighed in.  Davis County Attorney Troy Rawlings said of the ruling:

Prosecutors should not be in bed with judges, should not act like they think they are, and should not be perceived as being in bed with the judiciary. How would U of U fans like it if the next time they dare play BYU in football, the referees were all prominent BYU boosters?

Don’t say, ‘Hey, Judge, let us off the hook by changing your ruling because we are the good guys who merely make understandable mistakes, wink, wink, [h]owever, dear Judge, hammer the hell out of defense attorneys like Marcus Mumford, who keep beating us.’

Rawlings references hammering defense attorneys is in relation to the recent culmination of a five-year effort by the federal government to prosecute St. George businessman Jeremy Johnson.  In the trial, which ended in late March with Johnson convicted on eight counts of giving false statements to banks, Judge David Nuffer clashed repeatedly with defense attorney Mumford, whose client in the Johnson saga, Scott Leavitt, walked away from all 86 counts levied against him. Johnson was acquitted of 78 charges filed against him.

Part of a Broader DEbate About the Office of the United States Attorney

The lack of criticism for prosecutors in court opinions is part of a broader national debate regarding our justice system.  Daniel Medwed, professor of law at Northeastern University in Boston has said:

Judges don’t name prosecutors … out of fear that prosecutors will become timid.  If they are scared of being named for unethical conduct, they might not be so aggressive.  The less noble rationale is that many judges are former prosecutors, and [they] identify more with prosecutors than defense attorneys.