The chief federal judge in Boston has urged the new US attorney general to crack down on prosecutors who commit misconduct and to force Justice Department lawyers to be truthful in court.
Chief Judge Mark L. Wolf, in an extraordinary letter to Attorney General Michael B. Mukasey, skewered the Justice Department's mild and secret discipline of Assistant US Attorney Jeffrey Auerhahn in 2006 for misconduct that Wolf said required him to order the "release from prison of a capo and associate of the Patriarca family of La Cosa Nostra."
After a closed disciplinary hearing, US Attorney Michael J. Sullivan gave Auerhahn a letter of reprimand for withholding evidence while handling a racketeering case in the 1990s against members of the New England Mafia.
"The [Justice] Department's performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors," wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.
Wolf also wrote that "the department's failure to be candid and consistent with the court has become disturbingly common in the District of Massachusetts."
He cited several instances in which civil litigators defending the Justice Department in lawsuits stemming from the FBI's mishandling of fugitive mobster James "Whitey" Bulger contradicted positions taken by their colleagues in the department's criminal division.
Wolf criticized the department's handling of Auerhahn's misconduct during a conversation with Attorney General Alberto R. Gonzales in Boston in 2006 and in a follow-up letter that he placed in a court file last July.
Wolf's latest letter, dated Wednesday and filed with the court yesterday, indicated he was dissatisfied with the Justice Department's response and hoped that Mukasey, a former federal judge and prosecutor, would take action that Gonzales had not. Gonzales resigned under fire in September amid accusations that he removed nine US attorneys for political reasons and then made misrepresentations to Congress.
Wolf wrote Mukasey that he hoped the Justice Department "will soon again discharge its duties in a manner that commands the trust of federal judges and the people of the United States."
A spokesman for Mukasey in Washington said yesterday that the Justice Department will review the letter and respond to Wolf. In October, a high-ranking Justice Department official wrote Wolf that Auerhahn's reprimand fell within the range of sanctions authorized by the Justice Department's Office of Professional Responsibility. But Wolf responded to Mukasey that he doubts that office's ability to fulfill its mission.
A spokeswoman for Sullivan said the US attorney first saw the letter and accompanying documents yesterday and also needed time to review them. Sullivan - who has been serving as acting director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives - publicly defended Auerhahn last year as a diligent prosecutor who "understands his ethical and professional responsibilities."
Wolf did not specify what he wants Mukasey to do. But some legal specialists saw the letter as a warning to the Justice Department that the federal bench in Massachusetts will severely sanction government lawyers for misconduct or lack of candor.
"There has been a disturbing pattern of the Justice Department taking inconsistent positions in litigation based upon how it views its interests at the time," said William Christie, a New Hampshire lawyer for the families of two men who were allegedly slain by members of the Winter Hill gang as a result of information leaked by a rogue FBI agent.
Christie, who represents the families of John McIntyre and Edward Brian Halloran in wrongful death suits against the government, said lawyers from the Justice Department successfully prosecuted the former agent, John J. Connolly Jr., for his crimes. But government litigators then denied that the government was liable for the deaths of McIntyre and Halloran in civil suits.
US District Judge Reginald C. Lindsay ordered the government in 2006 to pay more than $3 million to McIntyre's family after concluding that Connolly caused his death. The judge also sanctioned the government by ordering it to pay hundreds of thousands of dollars in legal fees, Christie said.
Wolf placed his letter to Mukaskey in the files of two reputed mobsters, Pasquale Barone and Vincent Ferrara, who asserted in civil suits that they were wrongly imprisoned as a result of Auerhahn's actions.
In 2003, Wolf found that Auerhahn failed to tell defense lawyers that a key witness had recanted testimony about the 1985 slaying of Vincent "Jimmy" Limoli in the North End. That led Wolf to release Barone and, two years later, to free Mafia captain Ferrara, whose convictions in the slaying he deemed tainted.
Auerhahn still works for the US attorney's office and is assigned to the antiterrorism unit.
Jonathan Saltzman can be reached at jsaltzman@globe.com.
Correction: Because of a reporting error, a story in Saturday's City & Region section about US Chief Judge Mark L. Wolf's criticism of the Justice Department misstated the subject of a discussion in June 2006 between him and Alberto R. Gonzales, who was attorney general at the time. Wolf and Gonzales did not discuss the disciplining of a federal prosecutor, Jeffrey Auerhahn, as the story reported. Instead, according to a letter Wolf sent to the Justice Department last week, the judge criticized the department to Gonzales for repeatedly taking inconsistent positions in prominent criminal and civil cases involving misconduct by the FBI concerning its informant James "Whitey" Bulger. Wolf mentioned his dissatisfaction with the disciplining of the prosecutor in a letter to Gonzales in June 2007.
