It’s not often that a judge does the right thing—upholds the law, exposes corruption, or rebukes prosecutors. In the early days of our nation, it may have been quite common. Today, however, it’s a rarity. It’s so rare, in fact, that this is the first in more than fifty posts we’ve published that actually commends actions rather than condemns them.
Many people who become judges simply lack the moral fabric necessary to perform their duties to the highest standard. One judge, however, stands out from the crowd. That judge is U.S. District Judge Alison J. Nathan of the Southern District of New York. We wish we could write about more such judges, but she is the only one of which we know who deserves accolades for her actions.
Judge Nathan is so incensed by government conduct in the prosecution of an Iranian businessman that she has ordered every federal prosecutor in Manhattan to read her decision criticizing the prosecution failures. The Manhattan federal prosecutors made “countless belated disclosures” of arguably exculpatory evidence and, when pressed for information, made a misrepresentation to the court, Nathan said in her September 16 opinion. “In this case, federal prosecutors have by their own admission repeatedly violated their disclosure obligations and, at best, toed the line with respect to their duty of candor,” Nathan wrote.
The government has dropped the case against the defendant, Ali Sadr Hashemi Nejad, who was charged and initially convicted for violating sanctions against Iran. With the government’s acquiescence, Nathan vacated the verdict and dismissed the indictment with prejudice. But Nathan indicated in her September 16 opinion that she wants more information on prosecution conduct. Nathan pointed to a new revelation of “highly problematic internal communications” between prosecutors who spent nearly twenty hours strategizing how to best turn over a previously undisclosed document. One prosecutor suggested that they “bury” the evidence with other documents, and a second prosecutor agreed. “And after looping in more prosecutors,” Nathan wrote, “the government did just that, obfuscating its disclosure. The government now admits that this document had exculpatory value.”
The late-disclosed document is a letter to the Treasury Department from a bank flagging a $30 million payment at issue in the case. Prosecutors had placed a reference to the document in the middle of a bulleted list of several other documents that all had been disclosed previously. The list was presented to the defense midtrial.
Defense lawyers noticed that the document was new. When Nathan asked prosecutors to explain, they said they made clear that the document was a newly marked exhibit. Nathan said the prosecutors’ misleading explanation, provided in a March 8 letter, led her to think they had explicitly informed the defense that the document was new. It turns out that government lawyers had specifically stated in an early draft of the letter that they did not make such a disclosure to the defense; that statement was edited out of the letter and replaced with language about the newly marked exhibit.
Nathan pointed to several “common themes” that likely created disclosure problems, including the large number of prosecutors working on the case, the frequency with which different prosecutors “subbed into and out of the case,” a breakdown in communications with the FBI, insufficient training, and insufficient supervision. Nathan said the errors should be investigated by the Department of Justice’s Office of Professional Responsibility, and all current federal prosecutors in the Southern District of New York must read her opinion. She also asked each prosecutor on the case to submit declarations about the late-disclosed document and the misleading March 8 letter. “Government lawyers wield enormous prosecutorial power,” Nathan wrote. “They must exercise it in a way that is fully consistent with their constitutional and ethical obligations. And it is the obligation of the courts to ensure that they do and hold them accountable if they do not.” Nathan, appointed by President Barack Obama, is also presiding over the trial of Ghislane Maxwell.
Judges also wield enormous power. Without any true external accountability at any level of the system, the American public must rely on the system to police itself. Rarely is this an effective means in rooting out bad apples, as evidenced by the lack of police, prosecutors, and judges reining in rogue actors. We can only hope the actions of Judge Nathan are the beginning of a cleansing of the system. Sadly, however, they are most likely an anomaly in a sea of corruption.