In an appellate opinion notable for its extensive adjudication of several aspects of prosecutorial misconduct, the 5th Circuit has upheld a lower court finding of misconduct in a defendant’s first trial, as well as a claim of prosecutorial vindictiveness in his second. It has managed to do this while, nonetheless, affirming the defendant’s criminal conviction and sentence. Read closely, the decision reveals in one case both the frequent bootlessness of the rules governing prosecutorial accountability and their potential force.
The posture of the case arises from the fact that it is the consolidation of two appeals from a district court’s rulings in the Northern District of Texas: one from the defendant, Jason Dvorin from the conviction at his second trial, and one from the prosecutor at his first trial, Mindy Sauter, who appealed on reputational grounds to overturn a finding by the district court that she had violated her duty to disclose exculpatory evidence to Dvorin.
In its decision last week, the 5th Circuit upheld Dvorin’s second conviction, though it struck a forfeiture count on the grounds that it had been added since his first trial as a vindictive punishment for Dvorin having appealed. Meanwhile, in a demonstration of the protective bubble in which prosecutors most often operate, the court affirmed both the district court’s ruling that Sauter had violated Brady and Napue, and its decision to do nothing about it.
Bank Fraud and a Suppressed Plea Agreement
In 2012, Jason Dvorin was indicted for bank fraud involving depositing checks for funds that didn’t exist. Largely on the evidence of his alleged co-conspirator, a bank manager named Chris Derrington, he was convicted by a jury and sentenced to two years in prison and over $100,000 in restitution.
During Dvorin’s first appeal, the government “discovered” that prosecutor Mindy Sauter had failed to disclose a sealed supplement to the plea agreement with Chris Derrington promising Derrington assistance in obtaining leniency at his own sentencing. In the first of several unusual turns in the case, rather than defending the non-disclosure, the government turned over the evidence and agreed to an order vacating Dvorin’s conviction, setting up his second trial.
In an even more unusual development, when the case came up for retrial, the district court “issued a show cause order in which it requested that the government’s counsel file a pleading addressing why sanctions should not be imposed for Sauter’s failure to disclose Derrington’s plea agreement supplement and Sauter’s permitting Derrington to falsely testify that the government had not made him any promises” (emphasis added).
This is extraordinary for two reasons: (1) that a district court would order a pleading about a prosecutor’s misconduct without being asked to do so by a defendant, and (2) that it would require that pleading be styled as an argument about why sanctions against the individual prosecutor should not be imposed.
Misconduct without Consequences
After an evidentiary hearing, the trial court concluded that Sauter had violated Brady for failing to disclose the supplement at Dvorin’s first trial, and had violated Napue for allowing Derrington to testify that there had been no such agreement. However, despite finding that Sauter had “exhibited a reckless disregard for her duties and conducted the proceedings in an irresponsible manner” the lower court did not find Sauter had acted in “bad faith,” and chose to impose no sanctions.
Dvorin was soon convicted a second time. But in addition to the bank fraud charge and restitution, the new set of prosecutors from Sauter’s office added a forfeiture count against him, which the court agreed to impose.
It was after this second conviction that both Dvorin and Sauter in her individual capacity appealed to the 5th Circuit
Among Dvorin’s claims was that the district court at the second trial had abused its discretion by not imposing sanctions on Sauter; and, second, that the addition of the forfeiture count to his indictment at the second trial amounted to prosecutorial vindictiveness.
Dvorin requested that the district court dismiss the indictment with prejudice, or, alternatively, preclude Derrington’s testimony during the second trial. The district court declined to impose either requested sanction, concluding that neither dismissing the indictment nor excluding Derrington’s testimony from the second trial would be reasonable. The district court also declined to impose sanctions against the government as an institution, and found that prosecutorial immunity prevented it from issuing monetary sanctions against Sauter individually or the government as a whole.
Here we see the bootlessness of the law of prosecutorial accountability. Even a district court assertive enough to demand a pleading on why it shouldn’t impose sanctions on a prosecutor, and which found that multiple violations had indeed occurred, ends up doing nothing. It finds any remedies that might help the defendant—excluding testimony or dismissing the indictment—to be unreasonable. And it finds that immunity prevents it from handing down sanctions on either the government or the individual prosecutor.
Compounding this inefficacy, 5th Circuit has now not only denied Dvorin’s appeal regarding the lack of sanctions, it has grounded that holding in part on a factor that reveals how easy it is for prosecutors to violate their duties with impunity.
The individual who was responsible for the discovery violation (Sauter) was no longer involved in the case at the time the district court was considering the propriety of awarding sanctions. Thus, the concern of deterring future misconduct was less significant than it might have been otherwise.
In other words, she’s not on the case anymore, so there’s no reason to hold her accountable for her actions. This has about as much logic and judicial integrity as saying, The drunk driver is not in the car anymore, so why revoke his license?
We take a drunk driver’s license to protect the public and to punish him or her. But with prosecutors, it seems, recidivism is implicitly encouraged.
A Prosecutor Appeals to Protect her Reputation
In response to being called out by name for misconduct in the district court ruling, Mindy Sauter appealed the judge’s “reputational findings” that she had violated Brady and Napue. This despite the fact that no sanctions had been imposed.
In a lengthy discussion, the Dvorin court has denied Sauter’s appeal. Using standard Brady analysis, Sauter conceded that Derrington’s plea agreement supplement was favorable to Jason Dvorin but argued it was neither suppressed nor material. The decision rejects both these claims. Because the supplement was sealed and in the possession of the government, the court found it had been suppressed, and because the prosecution relied so heavily on Derrington’s testimony, it found the evidence was indeed material. Thus it leaves in place whatever “reputational harm” the district court did to Sauter. In this minimal sense, then, the decision at least declines to explicitly forgive Sauter for her conduct, even as it fails to hold that sanctions should have been applied.
Prosecutorial Vindictiveness Claim Upheld
More affirmatively, however, what the decision does do, demonstrating the capacity to hold prosecutor’s accountable, is agree with Dvorin’s second claim regarding misconduct: that the prosecutors from Sauter’s office who inherited the case and took Dvorin to trial for a second time were guilty of vindictive prosecution when they added a forfeiture count to the second indictment.
The government has not pointed to any objective event that would motivate prosecutors to add a forfeiture count aside from Dvorin’s appeal and the agreed remand… Only after the district court issued its show cause order [about Sauter’s misconduct] did the government file the superseding indictment that included the forfeiture count for the first time. Although the forfeiture count was added by a prosecution team that was not involved in the original prosecution and appeal, the new prosecution team was made up of attorneys who simply worked in a different division of the same U.S. Attorney’s office… Accordingly, we reverse the district court’s denial of Dvorin’s motion to dismiss the forfeiture account [sic] for prosecutorial vindictiveness, and we vacate the district court’s judgment of forfeiture.
Here the court, which could easily have deferred to the broad prosecutorial discretion in charging decisions, inserts itself into the frankly psychological dynamics of prosecutors acting out of a feeling of vengeance against a defendant who had not only appealed on the basis of prosecutorial misconduct, but caused a court to demand of the government why it shouldn’t be sanctioned for its earlier misbehavior. It reads those psychological motivations in the record, and strikes that it deems to be a charge that resulted from them, albeit without, once again, sanctioning the prosecutors themselves in any way. The unnamed prosecutors at Dvorin’s second trial are free to be vengeful in future cases and simply try their luck on appeal.
In sum, then, we have a court choosing, in Sauter’s case, to impute no ill motive to her suppression of material evidence, while at the same time imputing a vengeful motive to her successors. Perhaps this is simply what the 5th Circuit found reflected in the record. But it points up the often arbitrary decision courts make about whether or not to ascribe intent to prosecutors’ actions, and the significant consequences those decisions have for the rights of defendants to fair trials.
Dvorin’s first trial was marred by hidden evidence; his second was marked by vindictiveness by the government. He is nonetheless in prison, and the prosecutors in question are busy trying other cases.
For the breath of its discussion of misconduct, Dvorin and its possible future citations are worth noting.