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A USA TODAY investigation:

Misconduct at the Justice Department

Not guilty, but stuck with big bills, damaged

career
Updated 9/28/2010 9:56 AM | Comments 416 | Recommend 31 E-mail | Save | Print | Reprints & Permissions |

By Kevin McCoy and Brad Heath, USA

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TODAY
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A judge had a warning for the Justice
Department lawyers who accused Army Lt. Add to Mixx
Col. Robert Morris of conspiring to steal
military supplies: The case could be "ill- Facebook
advised." A nearly two-year Army probe had
cleared him. And another U.S. attorney's Twitter
office had declined to prosecute.
More
The cost of fighting federal charges could
"take the guy's life savings away," the judge Subscribe
Enlarge By Stan Godlewski for USA TODAY
added.
myYahoo
Robert Morris, then a lieutenant colonel, was cleared
on charges of conspiring to divert government Prosecutors went ahead, anyway. The judge's iGoogle
medical gear for his non-profit. His mother, Lillian, 86, prediction was right — a jury needed only 45
mortgaged her house to help him pay legal bills.
minutes to find Morris not guilty. By then, More
though, his career had derailed. His parents had mortgaged their
home to help with $250,000 in legal bills. He had drained his
own savings.
Unless the Justice
Department has to pay, The government he had served in uniform for decades could
"they're going to do this have compensated Morris for some of the losses. A 1997 law
over and over again. requires the Justice Department to repay the legal bills of
That's my biggest fear."
defendants who win their cases and prove that federal
prosecutors committed misconduct or other transgressions.
-Daniel Chapman,
who lost an effort to get RARE VICTORY: Va. bankers beat government twice
his legal bills paid VIDEO: One man's story of beating the government
EXPLORE CASES: Investigate the misconduct cases we ID'd
JUSTICE IN BALANCE: Prosecutors' conduct can tip the scales
FULL COVERAGE: Federal prosecutors series

But Morris didn't get anything from Washington. It took a gift from
a Texas billionaire to help the Morris family pay off part of the
debts.

The law, known as the Hyde Amendment, was intended to deter

Enlarge By John Grills, U.S. Army Material
Command
Army Maj. Gen. John Le Moyne pins silver eagle
wings on Lt. Col. Robert Morris, promoting him to
misconduct and compensate people who are harmed when
federal prosecutors cross the line. A USA TODAY investigation
found the law has left innocent people like Morris coping not only
with ruined careers and reputations but with heavy legal costs.
And it hasn't stopped federal prosecutors from committing
misconduct or pursuing legally questionable cases.
USA TODAY documented 201 cases in the years since the law's
passage in which federal judges found that Justice Department
prosecutors violated laws or ethics rules. Although those

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Not guilty, but stuck with big bills, damaged career - USATODAY.com 10/7/10 2:44 AM

wings on Lt. Col. Robert Morris, promoting him to

full colonel, in October 2002, after Morris wasrepresent a tiny fraction of the tens of thousands of federal
criminal cases filed each year, the problems were so grave that
cleared of conspiring to steal military supplies.
judges dismissed indictments, reversed convictions or rebuked
prosecutors for misconduct. Yet USA TODAY found only 13
cases in which the government paid anything toward defendants' legal bills. Most people never seek
compensation. Most who do end up emptyhanded.

The Hyde Amendment did nothing for Morris, whose claim was dismissed by a judge who nonetheless criticized
prosecutors and said they had "lost sight of the objective — justice."

It did nothing for Daniel Chapman, a lawyer who lost his job and had to sell his house to pay $275,000 in legal
bills fighting a securities fraud case a judge threw out for "flagrant" prosecutorial misconduct.

And it did nothing for Michael Zomber, an antiques dealer who spent two years in prison and paid more than $1
million in attorney fees before his fraud conviction was thrown out.

The Justice Department, which fought the Hyde Amendment from the day it was proposed, nearly always resists
efforts to win compensation, no matter how egregious a prosecutor's conduct might have been. Defense lawyers
contend that the scarcity of compensation wins, amid a rise in misconduct charges, shows the law's not working.

"The Hyde Amendment is practically a useless tool for dealing with prosecutorial misconduct," said Jon May, a
Miami lawyer who co-chairs the National Association of Criminal Defense Lawyers' white-collar crime committee.
For a defendant to win, "the standard is so high that a prosecutor practically has to know" in advance "that his case
is so meritless that it is unlikely to get a conviction."

USA TODAY found the government is seldom forced to pay because:

• Many defendants don't apply. The wealthy and those so poor they had court-appointed lawyers don't qualify.
Others hold back because they'd have to spend time and money in court and pursue a new civil action against the
government after winning their criminal cases. The investigation identified just 92 Hyde Amendment compensation
cases since the law's enactment.

• Some defendants are pressured by federal prosecutors to give up their right to seek repayment in exchange for
lenient plea bargains or getting their cases thrown out.

• Even those who seek compensation face what an appeals court called the "daunting obstacle" of proving,
sometimes in another trial, that prosecutors wronged them. Congress deliberately set a high legal standard to
qualify for payment: To win, a defendant must prove a prosecution had been "vexatious, frivolous or in bad faith."
But the House and the Senate never held committee hearings that could have defined that standard.

An anonymous tip

The case against Morris began in 1999 with an anonymous tip to a Department of Defense hot line. The caller said
the infantry officer had diverted $7 million of surplus medical equipment from a Marine Corps base in Albany, Ga.,
just south of his own post at Fort Benning.

Morris, now 54, was a decorated combat veteran and logistics expert. Superiors often had praised his ability to
work his way through complex military supply rules and get the job done. He played a role, for example, in ex-
Panamanian dictator Manuel Noriega's 1990 surrender to U.S. troops. When commanders decided to use
deafening music to force Noriega out of the Vatican Embassy in Panama City, Morris quickly found and set up a
sound system.

Morris' defense team said the medical supplies were intended to help a charity he had founded open health clinics
in Rwanda. The non-profit, Partners International Foundation, had been approved by Army brass and had never
paid Morris.

The Army's Criminal Investigation Division and the Defense Logistics Agency probed the charges and gave a
report to Army Maj. Gen. John Le Moyne, the Fort Benning commander. Le Moyne issued a February 2001
decision that cleared Morris, finding that he didn't violate military law, hadn't lied and didn't misappropriate
government property. "There was no theft," the decision stated.

Dissatisfied, the Defense Logistics Agency took its findings to the U.S. attorney's office in Columbus, Ga., which
declined to prosecute. The agency then turned to the U.S. attorney's office in Dallas. In March 2001, a grand jury
there indicted Morris on a theft conspiracy charge.

U.S. District Court Judge Joe Kendall in Dallas voiced doubts about the case. He said it looked as if investigators
had shopped it to prosecutors in several jurisdictions. Getting a guilty verdict from a Texas jury could be hard, he
warned, and prosecuting Morris could be a mistake. The prosecutors went forward, and Kendall granted a defense
motion to transfer the case to Georgia for trial.

Le Moyne also tried to head off the August 2002 trial. He reminded prosecutors the Army had exhaustively
investigated Morris. In a letter to an Army officer panel, Le Moyne said he had met with the prosecutor, Assistant
U.S. Attorney Candina Heath, and told her "she would lose … and be embarrassed in the process." In a separate
memo sent to prosecutors before trial, Le Moyne wrote that Morris had made an "error in judgment" that "did not
rise to the level of a criminal offense." It concluded: "Bob Morris is not a crook!"

During a nearly two-week trial, the prosecution called 38 witnesses. The defense called none. The jury acquitted
Morris in 45 minutes, a "lightning fast" verdict that U.S. District Court Judge Clay Land tied to the government's
"woefully inadequate presentation."

The Dallas U.S. attorney's office and Heath declined to comment.

Legal bills from Morris' criminal case totaled $250,000.He said he faced at least $40,000 more in related expenses
— and had exhausted his savings and life insurance benefits during the earlier Army investigation. So Morris'
parents took two new mortgages on their Connecticut home, and also cashed life insurance policies, to help pay
the lawyers.

Morris filed a Hyde Amendment application. Despite Judge Land's criticism of the prosecution, he dismissed the
case in 2003. The decision to prosecute hadn't been totally baseless, he ruled, because Morris' logistics skill and
signs that he'd skirted military rules provided "sufficient circumstantial evidence" to infer "criminal intent."

The judge did not rule that the prosecutors committed misconduct. For that reason, USA TODAY did not include
the Morris case among 201 misconduct cases the newspaper found in an extensive search of federal court records

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since 1997.

The prosecutors, Land wrote, "will likely lick their wounds and fully recover. Because of the strict requirements for
recovering fees and expenses, Lt. Col. Morris, an innocent (and now financially poorer) man, may not."

The case put a three-year hold on Morris' previously approved promotion to colonel. He got the promotion after the
trial, but his military career plateaued and he ultimately retired Aug. 31. The case didn't leave him destitute, but
there seemed little hope of repaying his parents anytime soon.

Then Texas billionaire and former presidential candidate H. Ross Perot and his charitable foundation stepped in.
Grants totaling $210,000 to Morris and his father arrived in 2003 after the court denied Morris' compensation claim,
the foundation's tax filings show. The organization, which often requires beneficiaries to sign confidentiality pacts,
declined to comment.

Morris said the money helped his parents pay off their mortgages. It did not, though, cover thousands in other
debts related to the investigations and trial. His widowed mother, Lillian, 86, is his dependent; he took over paying
most of her bills.

Said Jack Zimmerman, a Houston lawyer who represented Morris: "If Congress really intended to compensate
innocent people who were put upon by the government, they've got to revisit the Hyde Amendment standard. …
Any court is loath to penalize the government … if it's a judgment call."

A compromise in Congress

Illinois Rep. Henry Hyde spoke bluntly when he rose on the House floor and introduced the law that bears his
name. "This simply says to Uncle Sam, 'Look, if you are going to sue somebody … and the verdict is not guilty,
then the prosecution pays something toward the attorney's fees of the victim,' " Hyde said on Sept. 24, 1997.

As proposed, the legislation would have required the Justice Department to pay legal fees to vindicated
defendants unless the government proved the prosecution had been "substantially justified." That provoked a veto
threat from the Clinton White House.

Then-deputy attorney general Eric Holder, the Justice Department's leader, said defendants such as John Gotti,
the mobster who beat the rap at his first trials, might get "big taxpayer checks."

Asa Hutchinson, a former House member from Arkansas who led the opposition, said critics feared the law could
have a "chilling effect," making prosecutors shy away from worthwhile but difficult cases.

Hyde compromised. He agreed to require defendants to prove they had been wrongly charged. And to win, they
would have to show not just that they were innocent, but that prosecutors had acted vexatiously, frivolously or in
bad faith.

Congress approved the measure, which Hyde had attached to an appropriations bill, without defining those terms.
As a result, federal trial and appeals courts in different parts of the country have issued conflicting and often
confusing rules about when the Justice Department must pay.

A U.S. district court in Virginia in 1999 ruled the standard for vexatiousness should be whether a "reasonable
prosecutor should have concluded" that evidence was "insufficient to prove the defendants' guilt beyond a
reasonable doubt."

The U.S. Court of Appeals for the 9th Circuit in San Francisco explicitly rejected the standard used in Virginia. It
adopted a two-step rule: To win, a defendant must prove that the case was "deficient or without merit" and the
prosecutor "acted maliciously or with an intent to harass."

The U.S. Court of Appeals for the 11th Circuit in Atlanta used different language. It said defendants must show a
prosecutor's "state of mind (was) affirmatively operating with furtive design or ill will."

The U.S. Supreme Court, which often resolves conflicting lower-court rulings, has not yet accepted any Hyde
Amendment cases.

The legal threshold is so high that Joseph McKay, a Montana lawyer who won nearly $17,000 in a 1999 Hyde
Amendment repayment, says the legal standard has become "un-meetable" since his win.

Law not a deterrent

Hyde Amendment awards are so infrequent and so small that the law "hasn't been a major remedy for bad
prosecutions," said Bennett Gershman, a Pace Law School professor who examined the misconduct cases USA
TODAY identified. "It's a very minuscule deterrent" to prosecutors.

Even courts that have ruled that prosecutors violated defendants' constitutional rights find their hands tied. That's
what happened when the government brought securities fraud charges against Las Vegas lawyer Daniel Chapman.
The case collapsed in 2006 because prosecutors failed to turn over more than 650 pages of records his lawyers
could have used to discredit prosecution witnesses.

A series of judges berated prosecutors for violating Chapman's rights. U.S. District Judge James Mahan, who
presided over the trial, said it was "not some slight oversight, but it strikes at the very heart of the government's
obligation." He said prosecutors had offered no proof that Chapman broke the law and then dismissed the case.

An appeals court was even tougher, ruling that prosecutors had committed "misconduct in its highest form" and
"conduct in flagrant disregard of the United States Constitution."

Chapman, now 57, has spent four years seeking repayment of his legal bills. That effort has so far failed, because
the Hyde Amendment only allows payment to a "prevailing party." Courts ruled the dismissal Chapman won didn't
qualify because it didn't decide his innocence or guilt.

He's now pursuing another long-shot appeal. Chapman said his continued battle is about vindication and
discouraging government misconduct as much as a desire for repayment. Without a strong deterrent, Chapman
said, federal prosecutors will "do this over and over again."

Defendants who win Hyde cases also say they doubt that repayment awards have any impact on the Justice
Department.

Ali Shaygan, a Miami doctor, was charged in 2008 with 141 counts of illegally administering prescription drugs.
Acquitted in 2009, he sought Hyde Amendment payment because the government had engaged in what the trial

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judge called "win-at-all-costs" conduct. Shaygan won compensation of $601,795; the government is appealing.

Even if he wins again on appeal, Shaygan said the money would amount to "a drop in the bucket" that wouldn't
change prosecutors' "habits."

Payments in all the winning Hyde Amendment cases ranged from $8,722 to nearly $1.5 million, USA TODAY
found, less than some of the defendants' total legal costs. The 13-year payout total was just under $5.3 million.

A bargaining chip

Michael Zomber already had served his two-year sentence when prosecutors agreed to throw out his conviction
stemming from a 2003 conspiracy indictment. There was just one catch: He had to give up give up his right to
seek government repayment of his $1 million legal bills.

Before agreeing to a dismissal, federal prosecutors used Zomber's right to seek government repayment as a
bargaining chip.

A federal jury in Pennsylvania had convicted Zomber of conspiracy to commit mail and wire fraud for the sale of
four antique Colt pistols to businessman Joseph Murphy. Prosecutors said the weapons were worth half of what
Murphy paid for them, and that Zomber lied to increase the price.

Zomber, now 60, spent almost two years in a federal prison camp before the U.S. Court of Appeals for the 3rd
Circuit threw out his conviction. It found that the prosecutor, Robert Goldman, had failed to give Zomber's defense
the letters Murphy wrote to Microsoft Chairman Bill Gates offering to resell the pistols "at cost" — the same price
Murphy paid.

Goldman said he did nothing wrong and warned USA TODAY that he would have any article about Zomber's case
"reviewed by counsel for potential litigation." He said he regrets only that Zomber's conviction was overturned
because of "an insignificant document." But the Appeals Court ruled the letters could have given jurors "reasonable
doubt" about whether Zomber overcharged Murphy.

The court's decision meant Zomber faced the prospect of another costly trial. He was unlikely to go back to prison.
But he could have been ordered to pay $1 million or more in restitution.

Instead, defense lawyer Gerald Lefcourt reached a deal in which prosecutors ended the case.

"They weren't going to consider dismissing" it "unless we agreed not to pursue a Hyde Amendment application," he
said. Lefcourt, Hutchinson and other lawyers say prosecutors now automatically include such waivers in many plea
agreements.

Zomber said he had little choice but to go along with the agreement, because prosecutors are "always going to
make you sign a Hyde Amendment" waiver. Battling for repayment, he said, was "just not worth it."

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Comments: (416) Showing: Newest first New: Most recommended!

wcgreeriii (0 friends, send message) wrote: 5h 8m ago

Even moreso should this be considered "waste and abuse" given multiple judges advised that this
was a wasted effort, yet they shopped the case until they got an idiot taker on the matter that would
take their argument. The only risk these prosecutors have is to freely spend taxpayer dollars, what an
easy choice to consume time and take home more pay while they are burning down an officer with 30

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Not guilty, but stuck with big bills, damaged career - USATODAY.com 10/7/10 2:44 AM

some witnesses that had nothing credible to offer that yeilded a 45 minute decision by the jury -
UNREAL!!! This disgusts me. What a gift to give your 80 year old parent for your selfless service and
life given to your country, destroy their hard earned living defending an honorable man against
dishonorable attorneys who have no accoutnability or a leash - its all about accountability. Prayers to
the retired COL and his poor mother for this pain ----

Recommend 1 | Report Abuse

wcgreeriii (0 friends, send message) wrote: 5h 18m ago

What happened to the concept of going after these idiot federal attorneys for basic fraud, waste and
abuse of government dollars - that is a standard....maybe Hyde isnt the only way to make a point with
these jack-holes. This is completely unacceptable that this went on and on and on and our
government has done nothing to address this or make this officer whole again. Our Government,
which unfortunately I am a part of is growing increasingly toxic, inefficient, abusive and
unaccountable.

Recommend 1 | Report Abuse

MilitaryRetiree (0 friends, send message) wrote: 13h ago

I spent more than 25 years in two branches of the military, and finally retired because of a "nut"
whom I worked for at Ft. Eustis, Va. He was bi-polar, but the staff were the ones who suffered. He
would change his entire disposition within a matter of a couple of minutes. We never knew how to
take his instructions. He (more than once) gave me instructions on a project, and by the time I began
to carry them out, or in some cases, completed them he would berate me in the presence of others,
saying that what I was doing was NOT what he had instructed (I had originally written his instructions
down and read them back to him and he had agreed that they were his instructions). Fortunately, I
never did anything to be courtmartialed for, but if he could have, along with his predecessor, they
would have courtmartialled the entire staff simply to make a name for themselves. He died soon after
my retirement, and his predecessor went on to become a high-ranking official in a series of temporary
homes for hospitalized veteran's families. There are more weirdoes in the military than I care to think
about.

Recommend | Report Abuse

KMA now (0 friends, send message) wrote: 22h 40m ago

Amazing how this is the way it is in a country that the Supreme Court obviously forgot was founded by
people fed up with bad government. Because of that fear and to protect the people from the
government, the founders framed two of, THE best documents ever written......... The declaration of
Independance and our Constitution stressing and assuring the people's rights to be protected from
our government, yet the courts ignore the founding principles of the USA and allow this kind of
criminal acts to go unpunished. Anyone who prosecutes anyone for any reason knowing they are not
guilty deserves life in jail, these stories are a complete violation of the basic rights guaranteed by the
Constitution, not to mention attempted murder where they knowingly sent a man to death row for a
crime he did not commit.

I am disgusted to be an American after reading this

Recommend 1 | Report Abuse

FrankHummel (0 friends, send message) wrote: 1d 11h ago

I reiterate:

As egregious as some of THESE sorts of miscarriages of justice are, there are FAR WORSE
depredations out there than such "merely domestic" cases. I refer to VASTLY MORE ABHORRENT
FAILURES TO PROSECUTE in some celebrated "MILITARY" situations!

Perhaps the grossest "case in point" at this time is the fact that NO substantive charges of any kind
were ever brought against the perpetrators of the COLLATERAL MURDERER involved in that HIGH-
TECH EXECUTION of a LARGE NUMBER of ordinary people in Baghdad --- ENTIRELY WITHOUT
“BENEFIT” OF EVEN ANY KIND OF INVESTIGATION (much less any sort of “Trial”) --- that
EVERYONE HERE should now ACTUALLY MAKE IT A POINT TO WITNESS FOR THEMSELVES in
that now-infamous liberated WikiLeaks Video thus titled. (Just go to www.WikiLeaks.com!)

Meanwhile the presumed "wistleblower" --- who is ACTUALLY A HERO! --- sits in a brig awaiting a
Court Martial, AND IS LIKELY TO END UP SUFFERING FAR GREATER PUNISHMENT AND
PERSONAL DAMAGE THAN THE PERPETRATORS OF THE ACTUAL CRIME!!

That being said, it is really MORE than a little bit hard to actually TAKE SERIOUSLY much of the
blather expressed by various functionaries of the (sometimes IN)"Justice" establishment in connection
with all the supposedly "careful consideration of the details" in "weighty" cases such as that which you
are documenting HERE!

Recommend 1 | Report Abuse

Yeeks (0 friends, send message) wrote: 1d 14h ago

The bill should be paid by the lawyers who continued to court shop until they got what they wanted, a
trial which failed. They are responsible for the abuse and should pay the mans legal fees from their
wasteful ways. Time to clean house of the leaches called lawyers, who produce nothing but suck the
tax dollars non stop to attempt to justify their existence,

Recommend 5 | Report Abuse

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richgaz1 (10 friends, send message) wrote: 2d 6h ago

The US government - ever promoting good will and justice for all. Representing the citizen and their
best interests 24 by 7. If this is how out goobermint sees our rights and chooses to spend our money
then the Bill of Rights should be burned. No wonder no matter what happens we are in debt. Close
Washington down. Like in Iraq - bolt the doors so no one can get in - nothing will get done - no new
spending will occur and I bet we have a balanced budget within a year.

Recommend 3 | Report Abuse

Jber (28 friends, send message) wrote: 2d 12h ago

Losers should have to pay for the winners legal expenses.

Recommend 6 | Report Abuse

Thordog (0 friends, send message) wrote: 2d 18h ago

But Bill and Hillary got their legal bills paid with our tax dollars because they "did not remember, could
not recall and just forgot" everything. Oh, when HIllary's billing records showed up in their White
House Residence I guess the butler did it. They are the poster children for "failure to comply with any
discovery" and how to lie and get away with it.

Recommend 8 | Report Abuse

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