Above the Law | News | Salt Lake City Weekly

Above the Law 

A federal judge stands her ground when a prosecutor seeks special consideration.

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The court record shows that on March 4, 2016, U.S. District Court Judge Jill Parrish met in her chambers with David Backman, deputy chief of the U.S. Attorneys criminal division, and a prosecutor he supervises, Jacob Strain. Backman had asked Scott Wilson, 1st assistant of Utah's Federal Public Defender office, and federal defender Vanessa Ramos to attend the meeting, which was also at Backman's request.

Strain and Ramos were prosecuting and defending, respectively, 51-year-old Adolphus Nickleberry before Judge Parrish on a charge of possessing a gun while being a restricted person.

According to what Parrish read into the court record two weeks later, the meeting wasn't to plead the case for or against the defendant. Instead federal prosecutors wanted the judge to retract her criticism of Strain.

Parrish had raised concerns with Strain's work on the Nickleberry case in her written ruling granting Ramos' motion to have the evidence against Nickleberry thrown out. An undercover Unified Police Department officer had illegally impounded Nickleberry's girlfriend's car in which Nickleberry was a passenger, Parrish found, prior to his arrest.

The judge spent four paragraphs outlining mistakes Strain had made in his briefing. "The court hopes these deficiencies were unintentional," Parrish wrote. "In the future, counsel for the United States should carefully consider the representations it makes to the court and properly disclose controlling law, even though it may be unfavorable to its position."

In her post-ruling statement, Parrish said that she had not intended to suggest that Strain had been unethical, "but simply to caution counsel to be more careful in the future."

At the private meeting, Backman blindsided Parrish, who had anticipated he wanted to apologize for Strain's errors. Instead, Backman asked the judge to remove the four paragraphs in her 1-week-old ruling. He told her he wanted to avoid having to report her concerns to the Washington, D.C.-based Office of Professional Responsibility that investigates allegations of misconduct against federal prosecutors, "and particularly avoid any repercussions for Mr. Strain," Parrish recalled.

Backman also asked Parrish in the future to contact his office with concerns about prosecutors rather than put them in a written opinion. She felt that to do so would be "unethical or inappropriate," to which Backman replied that such communication would not relate to the case. "I responded how attorneys perform on a pending matter could not be divorced from the substance of the case," she said.

In Parrish's statement to the court, she recalled that Scott Wilson, 1st Assistant of the Federal Public Defender office, said he had "serious concerns with what he perceived as a broader issue, namely that the U.S. Attorneys Office's had historically received preferential treatment in Utah." He told Parrish that he found it problematic that judges were calling out public defenders in their written opinions for deficiencies but not prosecutors, for fear of triggering the reporting requirement to the federal government.

Responding to questions from City Weekly, Backman wrote in an email that both prosecutors and defense attorneys make mistakes. "It should come as no surprise that we will attempt to support our prosecutors and raise the issue with the judge when they are the subject of criticism in a written opinion," something that he noted he told Judge Parrish he would support if a defense attorney made the same request.

Wilson says the Public Defender's Office has "never, ever made such a request to my knowledge."

Backman went on to note that an internal review found that Strain's briefing was erroneous, "and not a deliberate misrepresentation of the law," he wrote. His office decided that because Parrish's ruling had not found misconduct, it did not require a referral to the Department of Justice's watchdog over prosecutorial misconduct.

A former federal prosecutor, Utah Supreme Court judge and 30-year legal veteran, Parrish is a relatively new member of the Utah federal court, having been appointed to the bench in May 2015. She concluded in her statement that, "My practice is to call things as I see them and not treat either party differently." She declined to edit the ruling to the prosecutor's liking.

City Weekly requested a number of prosecutors, defense attorneys and legal experts review Parrish's ruling and the events detailed by the judge in court. Her handling of the case and Backman's request earned applause by most, while at the same time, the prosecutors' off-the-record request that she edit her ruling elicited deep concern. One high-profile prosecutor, Davis County Attorney Troy Rawlings says, "Prosecutors should not be in bed with judges, should not act like they think they are, and should not be perceived as being in bed with the judiciary. How would U of U fans like it if the next time they dare play BYU in football, the referees were all prominent BYU boosters?"

Defense attorneys who appear before federal court judges were reluctant to weigh in. One agreed to discuss the case under the condition of anonymity. Backman's actions, he says, suggest his office "would like to be prosecutor, judge and jury. And there's a reason we don't let them be all three." He argues that the expectation of federal prosecutors that the judge would even entertain the request, "underscores how they have been very accustomed to having more deference than defense attorneys and defendants." The attorney believes that those judges who have sided with prosecutors have created a climate where prosecutors "believe they are able to hold these kind of meetings with judges and make these kinds of requests."

If, as a prosecutor, you disagree with a judge's ruling, then, file a motion to address it publicly, Rawlings says. "Don't say, 'Hey, Judge, let us off the hook by changing your ruling because we are the good guys who merely make understandable mistakes, wink, wink," he says. "However, dear Judge, hammer the hell out of defense attorneys like Marcus Mumford, who keep beating us.'"

Rawlings is referring to the recent culmination of a five-year effort by the federal government to prosecute St. George businessman Jeremy Johnson. In the trial, which ended in late March with Johnson convicted on eight counts of giving false statements to banks, Judge David Nuffer clashed repeatedly with defense attorney Mumford, whose client in the Johnson saga, Scott Leavitt, walked away from all 86 counts levied against him. Johnson was acquitted of 78 charges filed against him.

The events in Parrish's court are part of an ongoing national debate, says Daniel Medwed, professor of law at Northeastern University in Boston. While prosecutors are very rarely criticized in court, he says the failings of defense attorneys are routinely highlighted.

Judges don't name prosecutors, he says, out of fear that prosecutors will become timid. "If they are scared of being named for unethical conduct, they might not be so aggressive," he says, runs the rationalization. "The less noble rationale is that many judges are former prosecutors, and [they] identify more with prosecutors than defense attorneys."

Much as Parrish did, Medwed argues courts should "name" prosecutors. "If they are scared (of being identified for misconduct), they might tread more carefully," he says.

Mark Jones, U.S. District Court clerk for Utah, says six out of Utah's 14 federal court judges are former prosecutors, which he says is consistent with the national average.

Nickleberry, who has multiple felony and misdemeanor convictions, mostly drugs-related, says he faced 77 months on the gun charge. "What I'm dumbfounded by is how big this is for such a small case. I could see if it were murder or kidnapping," he says. "They're trying to save [Strain's] reputation and kill my life."

His troubles aren't over with the case, despite the prosecutor dismissing it for lack of evidence, after Parrish threw the arrest out. That's because, in early March, the Unified Police Department, following instructions from the federal prosecutors, screened the same case with the Salt Lake County District Attorney's office. DA Sim Gill says that his office filed it in 3rd District Court to achieve "clarity" on its implications for law enforcement.

Medwed says that issues surrounding the Nickleberry case boil down to the fact that no one should be above the law, especially those who enforce it. "If a judge has found reason for concern about an individual prosecutor's behavior, the public should know about that," he says. "It should be transparent, not hidden behind the scenes."

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