Prosecutors have no qualified immunity for grand jury deception.

Former SDNY federal prosecutors have a very real and serious problem in regard to the grand jury proceedings conducted in United States v. Ware, 04cr1224 (SDNY) and United States v. Ware, 05cr1115 (SDNY).

The evidence is overwhelming that Alexander H. Southwell, David N. Kelly, Steve Peikin, Nicholas S. Goldin, Michael J. Garcia, FBI special agent David Makol, and others knowing and deliberately falsified, lied, committed perjury, and fabricated material grand jury material in regard to "essential elements" necessary to the charges sought against Atlanta, GA lawyer Ulysses T. Ware, Esq.

The Second Circuit's decision below is the legal standard that applies to the facts in a grand jury proceeding. That legal standard was breached, deliberately, as a racially-motivated retaliatory hate crime against Mr. Ware.

Maria E. Douvas, Preet Bharara, and Katherine Polk-Failla

District Judge William H. Pauley, III (SDNY)

        Former AUSA Alexander H. Southwell (SDNY)            

By Casey C. Sullivan, Esq. on September 18, 2015 6:59 AM

Prosecutors who mislead grand juries aren't protected by qualified immunity and can be sued, the Second Circuit ruled last Friday. The case involved a former New York State Special Assistant Attorney General who submitted fraudulent and misleading evidence to a grand jury in order to indict a dentist accused of Medicaid fraud.

After the dentist, Dr. Leonard Morse, was acquitted, he returned to court to sue the prosecutors, alleging that their manipulation of evidence before the grand jury denied him his constitutional right to a fair trial. A district court jury, and now the Second Circuit, agreed.

The Prosecutor's Power

When it comes to grand juries, prosecutors run the show. They present evidence, subpoena witnesses, and craft a story most favorable to their ends. The non-adversarial nature of a grand jury proceeding means that prosecutorial abuses can more easily go unchecked -- there simply are no other attorneys present to challenge them. With so much control, it's no wonder that Sol Wachtler, former New York chief judge, claimed that prosecutors have so much influence the could convince a grand jury to "indict a ham sandwich."

But apparently, one prosecutor wasn't confident enough that he could convince a jury to indict a dentist. John Fusto, a former Medicaid fraud prosecutor, and Jose Castillo, an investigator in his unit, misled a grand jury into indicting Dr. Morse for fraudulent Medicaid billing, a trial court found. Specifically, the two were found to have manipulated evidence in a chart summarizing the claims against the dentist. Morse was awarded $7.7 million in damages.

Super Patients and Tooth Numbers

The charts presented a distorted picture of the evidence against Dr. Morse. For example, a billing summary for "Edwin Gonzalez" included all charges related to Edwin Gonzalez -- all three Edwin Gonzalezes. Fusto had combined three patients with the same name to make them look like one "super patient."

Fusto also excluded important details to make his evidence look stronger. The Second Circuit noted that the "tooth number" field was excluded from his charts. That made it look like Morse had billed repeatedly for the same procedure, when in fact he billed Medicaid for each tooth treated. If Morse treated three cavities in one patient, for example, the evidence made it look like he treated one cavity and billed for it three times.

No Qualified Immunity

A jury found that the evidence was false and that the prosecutor had known it to be false when he presented it. Yet Fusto and Castillo claimed they were protected by qualified immunity -- that they had not violated any of Dr. Morse's clearly established constitutional rights.

While Fusto and Castillo argued that "prosecutors may properly give one-sided presentations to the grand jury," that does not allow prosecutors to violate one's "right not to be deprived of liberty as a result of the fabrication of evidence."

The omissions in the evidence presented to the grand jury were strong enough to rise to the level of fabrication, the Second Circuit ruled. Omitting material information from the summaries "in effect falsified them."