Prosecutor Faces Ouster

In Rare Rebuke, Former Head of AUSA Group Suspended for Misconduct Legal Times/October 2, 1995
By Daniel Klaidman

In a rare rebuke, a well-known federal prosecutor-the founder of a national association of assistant U.S. attorneys- has been suspended by the Justice Department on charges of prosecutorial misconduct.

The department's internal watchdog unit recommended last month that Lawrence Leiser, an assistant U.S. attorney in the Eastern District of Virginia, be fired for a series of ethical lapses. Leiser was placed on administrative leave pending his appeal.

The most serious charges stem from Leiser's conduct in a high-profile 1993 criminal trial of a cult deprogrammer. Justice Department officials, after a seven-month probe, say Leiser intentionally withheld evidence at the trial that the defendant could have used to prove his innocence.

The Office of Professional Responsibility, which conducted the investigation, has referred its findings to John Hogan, the chief of staff to Attorney General Janet Reno. Hogan must rule on the recommendation.

Leiser was informed of the OPR decision on Sept. 8, when two senior lawyers from Main Justice came to his office in Alexandria, VA., and presented him with a thick report detailing the results of the disciplinary office's investigation. Leiser, a 12-year veteran, was suspended immediately, told to turn over his credentials and electronic key card, and ordered off the premises.

Neither the report nor the OPR recommendation were made public. However, they were described in detail by lawyers familiar with the case.

Leiser declines comment. But a fellow prosecutor in the Eastern District, who is helping Leiser press an administrative appeal, says his colleague did nothing wrong and will be vindicated.

"Larry welcomes the opportunity to respond to these charges in the appropriate forum," says Assistant U.S. Attorney Michael Rich. "He fully expects to be found not to have committed any wrongdoing and to be returned to his position as an assistant U.S. attorney in the Eastern district of Virginia."

Leiser, 49, has long been a controversial figure in federal law enforcement circles, admired by some as a relentless and effective prosecutor, but considered overzealous by the defense attorneys-and even by some of his fellow prosecutors in the 51-lawyer office.

Indeed, some of Leiser's admirers concede that the hard-charging prosecutor sometimes needs to be reined in.

"I had a lot of aggressive prosecutors working for me and Larry was one of them," says Henry Hudson, a former U.S. attorney in the Eastern District. "But I found that with adequate supervision, he could be a real asset," adds Hudson, now a partner in the Alexandria , Va., office of Richmond's Mays & Valentine.

In recent years, Leiser, a former state prosecutor in New Jersey, has been involved in a number of high-profile and contentious fights with Justice Department brass. Leiser unsuccessfully sued the department after being demoted in 1993 from a supervisory position by U.S. Attorney Helen Fahey, the incoming Clinton administration appointee.

In january 1994, Leiser founded the National Association of Assistant U.S. Attorneys (NAAUSA), which serves as a vehicle for line prosecutors to express their views on criminal justice policy and workplace issues. He quickly drew the ire of political appointees at Justice, as well as of some Senate Democrats, when he led his group in a lobbying campaign against a provision of the crime bill backed by President Clinton and Reno. Justice said it considered the lobbying effort illegal. (See "Prosecutors Draw Fire for Crime Lobbying," Aug. 29, 1994, Page 1.)

Leiser was unseated earlier this year as head of NAAUSA by an assistant U.S. attorney from San Francisco, William Shockley, who promised a less confrontational stance.

Justice spokesman John Russell declined to comment on Leiser's troubles, citing the department's policy against commenting on personnel matters. But officials vehemently deny that Leiser was in any way targeted because of his activities on behalf of the prosecutors' group.

"The recommendations are based on his conduct as a litigator, not as an activist for an organization within the Department of Justice," says a Justice Department official who asks to remain anonymous.

The most serious charges against Leiser stem from a 1993 prosecution in which he won a kidnapping conviction against Galen Kelly, a cult deprogrammer who was hired by the parents of a young woman to extricate her from a small religious sect in the Washington, D.C., area.

Withholding Information

A year ago, the U.S. Court if Appeals for the 4th Circuit reversed the conviction, finding that Leiser had violated Kelly's due process rights by failing to give the defense key information in its possession about its star witness, Debra Dobkowski.

The court, in a unanimous decision penned by Judge William Wilkins Jr., also held that Leiser had sponsored perjured testimony by Dobkowski, a leader of the group known as the Circle of Friends.

The 4th Circuit's ruling sparked an investigation by OPR, which determined that Leiser had deliberately withheld so-called Brady material-exculpatory evidence important to the defense's case.

Specifically, OPR found the Leiser intentionally held back information that would have cast serious doubt on the credibility of Dobkowski, it turned out, was the target of a separate Internal Revenue Service investigation at the time Leiser was preparing to got to trial in the Kelly case.

On the eve of the trail, federal agents searched Dobkowski's home. To obtain the search warrant, the government filed an affidavit with the court alleging Dobkowski's possible involvement in a money laundering scheme and other financial crimes.

Leiser did not turn over the affidavit to the defense in Kelly's case. Instead he provided them with a two-page letter containing some, but not all, of the information in the affidavit. In addition, Leiser neglected to turn over some of the information uncovering during the search.

Leiser's supporters say that notwithstanding the 4th Circuit's ruling, the Justice Department will not be able to prove that Leiser's conduct was willful and deliberate, as the OPR report alleges and is required to justify the firing.

"Even if he did something wrong-which we do not concede-it was clearly not deliberate and intentional," says one lawyer familiar with the case. "These area oversights that can occur in the heat of battle in a case with very unusual circumstances."

But according to one source familiar with the charges against Leiser, the OPR report contains sworn statements from federal agents and prosecutors indicating that Leiser knowingly withheld Brady material from the defense..

Increasing Doubt

Still, lawyers in Leiser's camp say the OPR investigation was incomplete because investigators failed to interview key witnesses and may have omitted relevant statements from those who were interviewed.

And even the defense lawyer for Kelly, the man Leiser prosecuted for kidnapping, expresses doubts that Leiser's withholding of the material was intentional.

"I have no way of knowing if it was a negligent mistake or deliberate," says Frank Dunham Jr. of Arlington, Va.'s, Cohen, Gettings, Dunham & Harrison. "But I wouldn't fire a career prosecutor as skilled as Larry unless I felt it was intentional or unless I had a bunch of other reasons.[the punishment] was rather draconian."

As it turns out, during its seven-month inquiry, OPR unearthed evidence of other ethical transgressions, which it is using to bolster its case for firing Leiser. Among the accusations:

• That Leiser unilaterally agreed to a lesser plea for a Nigerian drug defendant solely because he was unprepared to go to trial in the case.

   

• That in an effort to secure a shorter sentence for a defendant, Leiser intentionally misrepresented the views of U.S. Attorney Helen Fahey to a special committee of the U.S. attorney's office. (Fahey won't comment about this or any aspect of the controversy.)

   

• That Leiser dropped a gun charge against a juvenile defendant without obtaining approval from his immediate supervisor.

   

• That Leiser disregarded a federal magistrate's order in seeking to obtain an arrest warrent.

   

Rich, Leiser's employee representative in the U.S. attorney's office says he plans to contest all the charges in a meeting later this month with Hogan, Reno's chief of staff. If Hogan approves the OPR recommendation that Leiser can appeal to the Merit Systems Protection Board and then to the U.S. Court of Appeals for the Federal Circuit.

It will likely be an uphill struggle persuading Hogan to overturn the OPR recommendation. While it is a rare occurrence for OPR to recommend the removal of an assistant U.S. attorney-Justice officials estimate that in the past 10 years OPR has recommended the firing of some 20 prosecutors-it is even rarer for OPR's findings to be reversed.

Moreover, since becoming attorney general in 1993, Reno has pledged to make the policies of her prosecutors a top priority. She has beefed up the OPR staff and streamlined its responsibilities so the office can concentrate on investigating lawyer misconduct.

The biggest hurdle for Leiser to overcome may simply be the array of charges lodged against him.

"This case seems like a fairly serious example of a prosecutor going off in his own agenda," says Bennett Gershman, a professor at Pace University School of law in White Plains, N.Y., and as expert in prosecutorial misconduct. "If the allegations are true, it seems like an easy case."