Curious United States Attorney nomination for one of nation’s busiest districts

by James Scanlan

On June 9, 2010, the President nominated Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida, one of the nation’s busiest districts. O’Neill, currently chief of the Criminal Division in the office, is already discussed in materials made available through the “’Must’ Reading (and Viewing)” portion of this site. Those materials pertain to his conduct as the lead counsel in United States v. Deborah Gore Dean, an Independent Counsel case tried in 1993.

In that case, after the defendant alleged pervasive prosecutorial misconduct, the trial court specifically agreed with much of what the defendant asserted, including that prosecutors failed to disclose exculpatory material while representing that no such material existed, put on witnesses without attempting to determine whether their testimony was true, and had reason to know that the testimony of at least two government witnesses was false. More generally, the court found that prosecutors had acted in a manner reflecting “at least a zealousness that is not worthy of prosecutors in the federal government …” Reflecting the scope of the abuses it identified, the court repeatedly noted its concerns about their “cumulative effect,” observing that it was “almost impossible to quantify the total impact” of the abuses on the defendant’s ability to defend herself. While all criticisms broadly pertained to lead counsel O’Neill, the court also specifically noted that O’Neill had acted in a manner that the court would not have expected from any Assistant United States Attorney who had ever appeared before it. In an appellate decision, in “deplor[ing]” certain prosecutor actions, the Court of Appeals for the DC Circuit not only recognized that the underlying misconduct was severe, but impliedly found that representations prosecutors made in defense of their actions were false.

But the referenced “’must’ reading” materials (which are maintained on my website, jpscanlan.com) reveal that the trial and appellate courts had very limited understandings of the scope of prosecutorial abuses perpetrated by O’Neill and his colleagues, in many instances because prosecutors deceived the courts in responding to the defendant’s allegations. Read especially Section B.1 of the materials, which explains how O’Neill and a colleague pressured a government witness into providing testimony that would be interpreted as categorically contradicting the defendant in order that O’Neill could repeatedly and provocatively state that the defendant had lied on the stand. It also explains how prosecutors deceived the court in order to cover up O’Neill’s conduct. And read the separate profile on O’Neill, which should leave most observers wondering how O’Neill could ever have been nominated, much less confirmed. Of course, the latter remains to be seen.

An issue worth following involves the fact that in an application for the US Attorney position submitted to the Florida Federal Judicial Nominating Commission, O’Neill mentioned the Dean case in several places, including in a response to a question concerning discipline matters. Styling a matter “Deborah Gore Dean, Office of Bar Counsel, The Board on Professional Responsibility, District of Columbia Court of Appeals (1995),” O’Neill stated (at 43): “After her conviction on all counts, Ms. Dean filed a bar complaint alleging a number of instances of prosecutorial misconduct during the trial.”

Nowhere in the application will one get an inkling of the courts’ criticisms of O’Neill’s conduct in the case. The important point, however, is that Dean did not file a Bar Counsel complaint. And while I both filed a formal complaint and submitted various materials to Bar Counsel following Bar Counsel’s request for Dean’s counsel to comment on a response in an ongoing investigation, the Bar Counsel investigation was already in progress when Dean’s counsel and I learned of it. DC Bar confidentiality rules may preclude me from disclosing what person or entity initiated the investigation. So I have encouraged Bar Counsel to advise the Senate Judiciary Committee of what person or entity initiated the proceeding and why the person or entity did so, and in a June 16, 2010 letter, I encouraged the Committee to secure the Bar Counsel record. Once it has information as to the initiation of the Bar Counsel investigation, the Committee can determine whether O’Neill deliberately misstated the origin of the investigation because he believed that a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission than an investigation initiated by the person or entity that actually initiated it. Further, it is hard to believe that the vetting process leading to O’Neill’s nomination did not involve inquires about disciplinary matters similar to those found in the Nominating Commission application. And assuming that in such process O’Neill provided the same response regarding the DC Bar Counsel investigation that he provided in the Nominating Commission application, there is a strong chance that he violated 18 U.S.C. § 1001. For that and other reasons, I suggest that those who follow this nomination process may see an interesting story unfold. The story may well be even more interesting if O’Neill is confirmed – though, to be sure, a rather sadder one. Developments during the course of the nomination process will be addressed in addendums to the O’Neill profile.