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The Markus Fights Back!

Dr. Ali Shaygan and David Markus (pictured above) have petitioned the Supreme Court to review the 11th Circuit's reversal of sanctions in a prosecution so marred by allegations of prosecutorial misconduct that Judge Gold awarded over $600k in fees.

BLT has the latest:
More than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct, taking a position in the case against the Justice Department.

The coalition, which includes retired district and appellate judges, and former U.S. attorneys, is advocating for a doctor in Miami whom the government unsuccessfully prosecuted in a drug case. The statute in question allows defendants to recoup fees if the government's stance in a criminal case was "vexatious, frivolous or in bad faith."

The doctor, Ali Shaygan, was awarded nearly $602,000 in legal fees following the botched prosecution, marred by claims of prosecutorial misconduct. The trial judge sanctioned the government for, among other things, a witness tampering probe against Shaygan's attorney and the prosecutors' alleged violation of disclosure requirements.

But an appeals court overturned the fee award, saying that the prosecution was objectively reasonable. The divided ruling set up the appeal in the Supreme Court, which has not acted on the petition that Shaygan's lawyer, David Markus of Miami's Markus & Markus, filed this summer.
Thomas Goldstein of Washington's Goldstein & Russell is representing the former judges and prosecutors in support of Shaygan. Click here for a copy of the brief, filed August 9.

Wilmer Cutler Pickering Hale and Dorr filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers. Mark Srere of Bryan Cave is counsel of record for The Constitution Project on its amicus brief.
I don't know much about this stuff, but I do know Judge Gold rarely gets things like this wrong.
I'm partial to the amicus filed by the physicians' group AAPS, which has this:
Notably absent from the overzealous prosecution of Dr. Ali Shaygan – and from the panel opinion below – is attention to the fundamental requirement of mens rea. Such omission is common now, as the requirement of proving criminal intent in federal court for convictions and sentencing is disappearing, while state courts still take it seriously. Federal court prosecutions are becoming more utilitarian in nature, as unconscionably long prison sentences are increasingly the goal regardless of whether mens rea exists or is commensurate with such punishment.

In light of this trend, the deterrence against prosecutorial wrongdoing provided by the Hyde Amendment is even more important. As emphasis on proof in federal court of mens rea at trial and sentencing declines, the risk of unjustified prosecutorial actions increases. And with that growing risk comes the enhanced possibility of prosecutorial misconduct in quest of the utilitarian goal. If the Hyde Amendment loses its meaning, then there will be no meaningful restraints on a utilitarian, “end justifies the means” approach to prosecution. Engaging in wrongdoing to convict an innocent man, in order to deter future crimes, can even be rationalized under a utilitarian approach to justice. See Stephanos Bibas, “Bring Moral Values into a Flawed Plea-Bargaining System,” 88 Cornell L. Rev. 1425, 1428 (July 2003) (observing, and criticizing, the view that “guilty pleas by innocent defendants [is] a great utilitarian boon”).

Guess I'm a sucker for philosophy in a legal brief.

Also, footnote 2 is a must-read!


  1. Highly unlikely this makes it over the cert hurdle. They will leave it to the 11th to police their own courts. The amicus brief is too loaded with syrupy quotes from dead judges. Too much reliance on the Stevens fiasco. It's as if they are tyring to create some kind of pattern but can't link the two cases. Interesting to note that two of the former judges and/or US Attorneys are Mike McConnell and Bob Barr. I love the use of "disempower" on page 4. Had to run to my dictionary on that one. Yes, it is a word.

  2. This will go nowhere. DOM can get all the former judges and prosecutors he wants. I'll bet the majority of them have no clue what they even signed up for. What matters are the facts and the law. Unfortunately for Mr. Shaygan (I say Mr. b/c I don't want to insult real doctors), the 11th Circuit read how Gold forgot to provide the 2 prosecutors half of the due process he gave him. Gold is revered - especially by civil lawyers - b/c he's smart; however, he has a mean streak and that's what got him in trouble here.

  3. Excellant excellant post. I am going to reprint some of it Monday. The briefs are also must reads as well. Thanks. Great job. Gotta love the amicus who squeezes in the Gettysburg address at the end of his brief.
    Personally, I usually use Lincoln's " a house divided cannot stand...." speech which he gave when accepting nomination to run as the republican candidate for senator from Illinois in 1858, during closing argument. But to each his own.

  4. Rumpole - youre such a wannabe clueless narcisstic nobody.

    Cronin at 807 - you cockroach.

  5. We have a CRIMINAL justice system.

  6. Rumpole is such a lightweight jealous nobody.

  7. Good luck with that cert petition and convincing the Roberts Court to overturn the 11th Circuit especially given the manner in which Gold handled the matter. Gold let his emotions get the better of him (compare it with how Judge Cooke handled the TD Bank/GT sanctions hearing and there is no comparison). No way Court grants cert.

    I find it interesting that no one has mentioned that the USAO released approximately $70K from the escrow fund even though they won the appeal in the 11th Circuit. Smells like some back door dealings between DOM and the former powers that be . . .

    Here are the PACER entries:

    DE 382--> Joint MOTION for Disbursement of Funds to Defendant From Court Registry by USA as to Ali Shaygan. Responses due by 8/13/2012 (Attachments: # 1 Text of Proposed Order)(Stamm, Edward) (Entered: 07/26/2012)

    DE 383--> ORDER granting 382 Joint Motion for Partial Release of Funds to Defendant from the Court Registry to the trust account of the defendant's attorney David O. Markus in the amount of $70,879.50 as to Ali Shaygan (1) Signed by Judge Jose E. Martinez on 7/31/2012. (wh) (Entered: 08/01/2012)

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