Prosecutors Can Be Sued For Misleading A Grand Jury In The Second Circuit

Appellate court strikes a blow to prosecutors.

I have a friend who worked as both an AUSA and a defense attorney. He often said the biggest mistake defense lawyers make in trial is not carefully checking the work in government summary charts. A lot of advocacy is hidden in them — factual doubts are often resolved in favor of the government.

What happens when that same misleading spreadsheet is introduced before the grand jury? According to the Second Circuit, a prosecutor won’t have qualified immunity and can be sued.

The new Second Circuit opinion slams a New York prosecutor for doing exactly that — introducing a summary exhibit to the grand jury that resolves factual doubts in favor of the government. But, instead of slamming the prosecutor just with his name in an opinion (leading to the Google shame, but little more) the super-fancy Circuit said the prosecutor had no immunity for what he did and let stand a massive multi-million dollar civil judgment against him. It may be open season on AUSAs who mislead on their summary charts.

The case is Morse v. Fusto and here’s what happened. The prosecutor – a New York state A.G. working on health care fraud – introduced a chart summarizing a dentists Medicaid claims. It was riddled with errors. Here are two of them, as summarized by the Second Circuit:

The Edwin GonzalezSuper Patient Claim“: The billing summary for patient “Edwin Gonzalez” contained the billing details for services rendered to three different patients, all named Edwin Gonzalez. The records with respect to those three patients were merged and aggregated to look as though they belonged to one “super patient.”

The Tooth Number Problem: For all of the patients listed in the billing summaries, a “tooth number” field was excluded from the spreadsheet. This created the impression that Morse billed Medicaid repeatedly for the same procedure when in fact Morse was billing per tooth for a procedure performed on different teeth of the same patient.

In one sense, I have a little sympathy for the prosecutor here. I imagine him to be at the end of his career, and maybe a little depressed. He was willing to cut a corner with the summary evidence. Spreadsheets have a lot of fields sometimes, and people often don’t have a lot of time. Also, in the current stats-based government management climate prosecutors tend to look for evidence of guilt instead of neutrally evaluating whether someone actually committed the crime he or she is about to be indicted for. (Also, that last sentence may be the saddest one I’ve written in a long time)

That said, false is false. And the guy did try to send someone to prison — and destroyed his career in the process — because he wasn’t inclined to put together and introduce an accurate spreadsheet.

Because the jury found that this prosecutor presented false evidence to the grand jury that he either knew was false — or was reckless in figuring out the truth of — he had no qualified immunity. Even though a prosecutor can decide to exclude material evidence and can affirmatively ignore exculpatory evidence in a grand jury presentation, the Second Circuit didn’t have trouble finding that the law is pretty clearly settled that a prosecutor can’t actually provide false evidence.

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What, you may ask, of absolute immunity? The Second Circuit said that when a prosecutor is working in his or her investigative capacity — including before a grand jury — he or she has the same immunity protections as a cop: qualified immunity.

Naturally, the prosecutor in this case argued that if he can be sued, no prosecutor will ever do his job again, criminals will walk free, and society will devolve into anarchy. The court wasn’t terribly moved by this (internal citations omitted):

[W]e foresee no significant barriers to the pursuit of successful prosecutions that would result from the defendantsʹ liability in this case. It ought not to be difficult, even for the most single‐minded of prosecutors, to avoid misconduct of the scope and seriousness of that in which the defendants engaged: 1) “creat[ing] false or fraudulently altered documents,”; 2) in the course of their performance of “investigatory functions,”; 3) “knowing that such information was false or fraudulent”; 4) where “false” is defined as “untrue when made and . . . known to be untrue when made by the person making it or causing it to be made” and “fraudulent” as “falsely made with intent to deceive“. It does not seem to us to be a danger to effective law enforcement to require prosecutors and their aides to abide by these rules even when pursuing the most complicated of cases with the utmost determination.

People get lazy and take short cuts. Sometimes those short cuts involve lying. That shouldn’t be a surprising fact. AUSAs, pace some of what DOJ may say, are still people and still fall prey to some human temptations — large and small. Having some recognition of that — and mechanism for dealing with it — is really really good.

As this case shows, prosecutors have a lot of power to destroy someone’s life, even someone innocent. And that power is virtually unchecked. Perhaps when that power is wielded so recklessly, having the possibility of the prosecutor’s life also being destroyed isn’t such a bad thing.

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Though, let’s see, under this case, what happens with the next prosecutor lies in a trial court.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.