Prosecutorial Misconduct Should Not Be Immune From Fee Awards

When the government’s position in a criminal prosecution is found to be “vexatious, frivolous or in bad faith” and leads to a dismissal of the case, the defendant ought to be able to recover attorney’s fees incurred in fighting the charges.  This should be so, regardless of whether the prosecution was “objectively reasonable.”

At least that is the position argued in amicus briefs recently filed in the Supreme Court by the National Association of Criminal Defense Lawyers and on behalf a group of former judges and federal prosecutors, including me.  Thomas Goldstein of Goldstein & Russell authored the brief for the latter group, which was filed August 9, 2012.

The case involves a doctor in Miami who was prosecuted in a drug case.  The district judge in the case found numerous instances of prosecutorial misconduct, and ultimately awarded more than $600,000 in attorneys fees to Dr. Shaygan as a consequence of the misconduct.

The Eleventh Circuit reversed the ruling, holding that such an attorney’s fees award is not appropriate if the prosecution was “objectively reasonable.” 

The appellate ruling is in conflict with decisions in other circuits, and is a serious threat to the value of the Hyde Amendment which was approved by Congress in 1997.  The Supreme Court should grant a writ of certiorari and hear the case to provide some clear guidance on whether district courts should have the authority to grant substantial fee awards to defendants where prosecutors act in subjective bad faith.  Honorable and honest prosecutors have nothing to fear from such authority.