Blues and blood

Why does US attorney Michael Sullivan keep rewarding a wayward prosecutor with big-stakes public-corruption cases? Plus, remove that tattoo, son.
By HARVEY SILVERGLATE  |  September 6, 2006

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REWARDING BAD BEHAVIOR: US Attorney Michael Sullivan’s handling of a corrupt prosecutor paints “a grim picture of blatant misconduct.”

Something is rotten in Beantown — and the stench is emanating from the local branch of the Department of Justice (DOJ). An assistant US attorney, who hid evidence and then lied about it, has been put on the prosecution teams in — ready for this? — the corruption and perjury trials of several local officials. As the number of federal judges who question this guy’s trustworthiness grows, it seems, the more responsibility the DOJ hands him to prosecute corruption cases.

On August 10, the Massachusetts federal Court of Appeals affirmed a 2005 decision by Federal District Judge Mark Wolf, who had rebuked Assistant US Attorney Jeffrey Auerhahn for lying under oath in his overzealous and unethical prosecution of mobster Vincent “The Animal” Ferrara. (The feds made up the moniker to vilify Ferrara, who was on trial for the murder of Vincent Limoli. It’s doubtful they’ll come up with one for Auerhahn.) Auerhahn believed he had a prime witness against Ferrara in the mafia murder-and-racketeering case. But that witness, Walter Jordan (the brother-in-law of Ferrara’s co-defendant Pasquale Barone), eventually recanted his testimony. Yet rather than acknowledge the dissolution of his case, Auerhahn hid Jordan’s recantation from both Ferrara and his lawyer. Under intense pressure, Ferrara pleaded guilty to a crime he likely didn’t commit, in exchange for a lesser sentence, only because he feared the jury would believe Jordan’s testimony — which Auerhahn knew was false. In fact, it is highly likely that Ferrara was innocent of that murder, despite his admitted involvement in other mafia-related crimes.

After Judge Wolf fingered prosecutor Auerhahn for hiding and lying about the Jordan recantation, the Department of Justice and US Attorney Michael Sullivan could have suspended Auerhahn, at least temporarily, from his position as an active federal prosecutor. After all, Auerhahn’s behavior was arguably criminal. They didn’t. Instead, they appealed Wolf’s decision and kept Auerhahn in his position, as if it were business as usual. Not only that, but they then turned around and assigned the accused perjurer to the perjury prosecution of former Massachusetts House Speaker Thomas Finneran. “Freedom Watch” noted the irony: here was a prosecutor accused of committing perjury as well as other crimes while prosecuting a likely innocent defendant, now entrusted with a case involving a controversial political leader himself accused of lying (see “Animal Crackers”). We charged Sullivan with having “a severe case of cognitive dissonance,” for displaying “unwavering support” of Auerhahn while waxing indignant about Finneran’s alleged perjury on a minor matter during a deposition in a civil case.

The three-judge panel of the Court of Appeals was no kinder to Auerhahn than Judge Wolf had been. The panel even signaled its support for Wolf by calling him “the able judge” — a message likely aimed at Auerhahn’s boss, Sullivan. Jordan’s recantation, said the Court of Appeals, was “plainly exculpatory” and should have been turned over to Ferrara and his lawyer rather than used to trick Ferrara into pleading guilty to a crime for which the government lacked significant evidence. Auerhahn’s conduct and the government’s effort to cover it up “paint a grim picture of blatant misconduct,” concluded the appellate panel, unanimously affirming Judge Wolf’s order, which released Ferrara from the final nine years of his 22-year sentence.

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For most of the past century, the Supreme Court has ruled that the state can not prohibit citizens from believing in or expressing hateful ideas. Nor can the state force a citizen to profess belief in an officially approved point of view. In 1977, the Court ruled that a resident of New Hampshire could not be forced to affix a license plate bearing the state motto, “Live Free or Die.” (Wooley v. Maynard, 430 US 705.) In 1971, the Court protected a draft protester who wore a “fuck the draft” jacket in a California courthouse. (Cohen v. California, 403 US 15.) Two years earlier, Justice Thurgood Marshall held that an individual has an absolute right to read obscene material in the privacy of his or her home, because “our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” However, it would be a crime to produce or sell such material, or to possess it elsewhere. (Stanley v. Georgia, 394 US 557.) Earlier still, the Court in 1943 invalidated a West Virginia statute forcing all school children to pledge to the flag every morning. Justice Robert Jackson wrote for the majority that the government is without the power to exert “official control” in “the sphere of intellect and spirit” and that “no official, high or petty, can prescribe what shall be orthodox in … matters of opinion.” (West Virginia Board of Education v. Barnette, 319 US 624.)
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