Let’s hope missteps vanish if former U.S. attorney gets job back

When Dan Bogden was Nevada's U.S. attorney during the Bush administration, the 9th U.S. Circuit Court of Appeals issued at least three scathing opinions critical of federal prosecutors in his office.

The harshest involved the government's gun case against Kendrick Weatherspoon because it suggested prosecutors in the office needed training on how to do their jobs.

Now that Bogden is U.S. Sen. Harry Reid's choice to return to the job he lost under President Bush, the case is worth reviewing because it's an admission of poor management during Bogden's six years as Nevada's top federal prosecutor.

Weatherspoon was convicted in 2003 of being a felon in possession of a gun. On appeal, the court said Assistant U.S. Attorney Darin LaHood made improper statements during closing arguments. The court decided there was prosecutorial misconduct because LaHood vouched for the credibility of witnesses and encouraged the jury to convict in order to alleviate social problems.

The 32-page opinion said LaHood engaged in the same kind of vouching in two other cases in which convictions were overturned. (The U.S. attorney's office later persuaded the appellate court to delete references to LaHood's name and lose the term "recidivist conduct," replacing it with "repeat-offender conduct," which still sounds more like a criminal than a prosecutor.)

LaHood is the son of Ray LaHood, a seven-term GOP congressman from Illinois, now secretary of transportation in the Obama administration. After six years as a federal prosecutor in Las Vegas, he left the office of his own volition in 2006, returning to Peoria, Ill.

The court kicked the Weatherspoon case back for a new trial based on LaHood's misconduct, and Weatherspoon pleaded guilty.

In a separate opinion, Circuit Judge Stephen Trott, a former federal prosecutor, said LaHood didn't vouch for witnesses but did cross the line by urging jurors to convict in order to protect the community from an armed convicted felon.

Trott's politely brutal opinion said Bogden recognized LaHood's mistakes and ascribed them to lack of supervision on the part of Bogden's office and LaHood's lack of training and experience. Bogden told the court LaHood's errors were because of a management failure in his office.

Trott said he accepted Bogden's willingness to take responsibility. Then he advised Bogden to give a seminar to his prosecutors on what's permissible in arguing a case and review the supervision and training in the office. "Reversals on appeal because of prosecutorial missteps and resulting retrials are a brutal waste of time and valuable resources. The issues in this case were easily avoidable."

The opinion suggesting federal prosecutors in Nevada didn't know how to do their jobs was devastating to the office, several prosecutors said.

A meeting of the prosecutors was called, but Bogden wasn't there. Chief assistant Steve Myhre was.

"He didn't talk about the deficiencies or how to correct them," one prosecutor recalled. "What he said was more along the lines of 'We've got your back.'"

LaHood was "overworked and overwhelmed," another prosecutor said. LaHood had four years of experience as a state prosecutor in Illinois, but both prosecutors said he needed better supervision in the federal system and didn't get it, just as Bogden had admitted.

There are two other notable cases in which the 9th Circuit pilloried Bogden's prosecutors.

In a gun case filed against Joey Clark, an appeals judge said the "government counsel was trying to pull a fast one" when he used quotes out of context and "no reasonable lawyer would play doctor" with quotes in this fashion.

Then there was the securities case against Daniel Chapman, Sean Flanagan and Herbert Jacobi, in which District Judge James Mahan declared a mistrial and dismissed the case because the prosecutor hadn't turned over hundreds of documents to the defense.

The appeals court first upheld the dismissal, calling it "prosecutorial misconduct in its highest form." On reconsideration, the appellate court gave the government another crack at the still unresolved case.

The prosecutor's failure to turn over exculpatory documents in the Chapman case is a parallel to the dismissal of all charges against former Sen. Ted Stevens of Alaska last Tuesday because of prosecutorial misconduct and undisclosed documents.

No word yet on whether the Obama administration will accept or reject Reid's recommendation of Bogden for U.S. attorney. But if Bogden withdraws his name from consideration to spend more time with his wife, we'll know the answer.

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison.