US v Sterba

8-13-1998 Florida:

US v Sterba

The grand jury indicted James R. Sterba (Sterba) for allegedly violating 18 U.S.C. § 2422(b)1 by soliciting a minor for an unlawful sexual encounter.2 Sterba allegedly utilized a computer and the services of one of the adult "chat rooms" of America Online (AOL) to contact and persuade a putative minor to engage in sexual activity with him at an agreed time and place. A "chat room" is a service, available through the much-discussed "Internet," by which a participant sends to and receives messages from an unseen person who presumably shares some particular enthusiasm, in this instance, sexual intercourse.

After both the United States and Sterba completed their trial presentation and rested their respective cases, Sterba interposed a motion for mistrial based upon both the government's misidentification of a material witness and the consequent infringement of Sterba's sixth amendment right to confront the witnesses against him. I granted the motion. Sterba now seeks dismissal of the indictment based upon his fifth amendment immunity from being "for the same offence ... twice put in jeopardy ...", a right commonly called his immunity from "double jeopardy."

... ... ...

Conclusion:

By a course of intentional misconduct, discovered serendipitously by the defense during trial, the prosecution goaded the defense into moving for a mistrial. The defendant's fifth amendment immunity from double jeopardy precludes another trial and, therefore, requires the dismissal of the indictment.

The defendant's motion to dismiss the indictment is GRANTED.

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See Prosecutorial Misconduct Registry

And this 2013 article:

The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them

NEW ORLEANS -- Some questions seem particularly prone to set John Thompson off. Here's one he gets a lot: Have the prosecutors who sent him to death row ever apologized?

"Sorry? For what?" says Thompson. The 49-year-old is lean, almost skinny. He wears jeans, a T-shirt and running shoes and sports a thin mustache and soul patch, both stippled with gray. "You tell me that. Tell me what the hell would they be sorry for. They tried to kill me. To apologize would mean they're admitting the system is broken." His voice has been gradually increasing in volume. He's nearly yelling now. "That everyone around them is broken. It's the same motherfucking system that's protecting them."

He paces as he talks. His voice soars and breaks. At times, he gets within a few inches of me, jabbing his finger in my direction for emphasis. Thompson pauses as he takes a phone call from his wife. His tone changes for the duration of the conversation. Then he hangs up and resumes with the indignation. "What would I do with their apology anyway? Sorry. Huh. Sorry you tried to kill me? Sorry you tried to commit premeditated murder? No. No thank you. I don't need your apology."

The wrongly convicted often show remarkable grace and humility. It's inspiring to see, if a little difficult to understand; even after years or decades in prison, exonerees are typically marked by an absence of bitterness.

Not Thompson, but you can hardly blame him. Even among outrageous false conviction stories, his tale is particularly brutal. He was wrongly convicted not once, but twice -- separately -- for a carjacking and a murder. He spent 18 years at the Louisiana State Penitentiary, 14 of them on death row. His death warrant was signed eight times. When his attorneys finally found the evidence that cleared him -- evidence his prosecutors had known about for years -- he was weeks away from execution.

But what most enrages Thompson -- and what drives his activism today -- is that in the end, there was no accountability. His case produced a surfeit of prosecutorial malfeasance, from incompetence, to poor training, to a culture of conviction that included both willfully ignoring evidence that could have led to his exoneration, to blatantly withholding it. Yet the only attorney ever disciplined in his case was a former prosecutor who eventually aided in Thompson's defense.

"This isn't about bad men, though they were most assuredly bad men," Thompson says. "It's about a system that is void of integrity. Mistakes can happen. But if you don't do anything to stop them from happening again, you can't keep calling them mistakes."

Over the last year or so, a number of high-profile stories have fostered discussion and analysis of prosecutorial power, discretion and accountability: the prosecution and subsequent suicide of Internet activist Aaron Swartz; the Obama administration's unprecedented prosecution of whistleblowers; the related Department of Justice investigations into the sources of leaks that have raised First Amendment concerns; and aggressive prosecutions that look politically motivated, such as the pursuit of medical marijuana offenders in states where the drug has been legalized for that purpose. In May, an 82-year-old nun and two other peace activists were convicted of "sabotage" and other "crimes of violence" for breaking into a nuclear weapons plant to unfurl banners, spray paint and sing hymns. Even many on the political right, traditionally a source of law-and-order-minded support for prosecutors, have raised concerns about "overcriminalization" and the corresponding power the trend has given prosecutors.

Most recently, the Justice Department came under fire for its investigation of leaks to the media, including a broad subpoena for phone records of the Associated Press, and for obtaining the phone and email records of Fox News reporter James Rosen. In the Rosen case, Attorney General Eric Holder personally signed off on a warrant that claimed that merely publishing information that had been leaked to him made Rosen a criminal co-conspirator. Many have pointed out that such a charge would make it a crime to practice journalism.

President Obama has since expressed his dismay at the Rosen warrant, but his response was curious. He asked Holder to investigate the possible misconduct that not only occurred under Holder's supervision, but in which Holder himself may have participated.

In asking Eric Holder to investigate Eric Holder, Obama illustrated the difficulty of adequately addressing prosecutorial misconduct as well as anyone possibly could: Prosecutors are relied upon to police themselves, and it isn't working. A growing chorus of voices in the legal community says the problem is rooted in a culture of infallibility, from Holder on down. And it's against this backdrop -- this environment of legal invincibility -- that we get the revelations of massive data collection by the National Security Agency, government employees who lie to Congress with no repercussions, and government investigators, courts and prosecutors operating in secret. ..Continued..