Top judge wants US prosecutor disciplined
Says evidence was withheld at trial
By Shelley Murphy, Globe Staff | July 3, 2007
Chief US District Judge Mark L. Wolf, in a rare rebuke to the US Justice Department, has asked the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against a veteran federal prosecutor who withheld key evidence in a New England Mafia case from the early 1990s.
In a letter to Attorney General Alberto R. Gonzales that was made public yesterday, Wolf criticized the Justice Department for punishing career prosecutor Jeffrey Auerhahn with only a letter of reprimand after concluding in 2005 that Auerhahn "engaged in professional misconduct and exercised poor judgment."
The state board could suspend Auerhahn's law license or disbar him.
Wolf notified Gonzales that he had asked the state to take action because "the previously secret reprimand is not, in my view, an adequate sanction for Mr. Auerhahn's misconduct."
In 2005, Wolf released Mafia capo Vincent Ferrara from prison after finding that Auerhahn had improperly and possibly illegally failed to tell defense lawyers in the early 1990s that a key witness had tried to recant his assertion that Ferrara ordered the 1985 slaying of Vincent "Jimmy" Limoli in the North End.
Ferrara said he was innocent in the slaying, but pleaded guilty to murder, along with racketeering charges, under a deal that sent him to prison for 22 years, rather than risk a wrongful conviction that could lead to life in prison.
Wolf also ordered the early release in 2003 of Pasquale Barone, who admitted to killing Limoli, but had been wrongly convicted in federal court of carrying out the slaying under orders from Ferrara.
The judge has requested that the Board of Bar Overseers review the allegations against Auerhahn and asked a panel of three federal judges to launch disciplinary hearings.
Constance Vecchione, counsel for the Board of Bar Overseers, said yesterday that the office "would expect to review the matter and make decisions as to how to proceed as soon as possible."
Auerhahn, who has been a federal prosecutor since 1985 and is now assigned to the antiterrorism and national security squad, declined to comment yesterday.
US Attorney Michael J. Sullivan said he was prohibited from discussing the specifics of Auerhahn's case because of privacy protections.
However, he said: "All the work I've had an opportunity to review of Mr. Auerhahn's since I've been at the US attorney's office reflects an individual who takes his responsibilities very seriously, does everything he possibly can to protect the interests of the United States and the citizens of this country, and understands his ethical and professional responsibilities. He's very diligent in carrying them out."
But yesterday Ferrara accused Auerhahn of perjuring himself during hearings before Wolf several years ago when he denied that he had knowingly withheld evidence.
"Auerhahn was a zealot, but he really crossed the line with this case," Ferrara said.
"It was all a conspiracy by him, not an accident," he said. "He plotted and weaved this whole thing from the beginning."
Bennett L. Gershman, a professor at Pace University Law School in New York who wrote the treatise "Prosecutorial Misconduct," said, "It's not often that you see a federal judge going out of his way to recommend an investigation against a federal prosecutor."
Gershman said he's unaware of any cases in which a judge has sought further disciplinary action after the Justice Department has meted out some form of punishment.
"What it says to me is the judges are getting fed up in cases where prosecutors are violating prosecutorial rules," Gershman said.
In his letter to Gonzales, Wolf also accused the Justice Department of failing to "satisfy its duty of candor to the court" by continuing to make arguments in Ferrara's case before Wolf and a federal appeals court that had been rejected by the Justice Department's internal probe.
Boston lawyer Martin G. Weinberg, who represents Ferrara, said that even after the Justice Department concluded that the withheld evidence may have helped Ferrara prove his innocence in the Limoli slaying, "the government trivialized the withheld evidence in its pleadings before two courts."
James Herbert, chief of Sullivan's organized crime strike force unit, said the government was "completely candid" when arguing before Wolf and the appeals court.
Herbert, who worked with Auerhahn for 17 years, said, "In my experience he is definitely not a rogue prosecutor."
But Ferrara said he hopes Auerhahn is disbarred.
Shelley Murphy can be reached at firstname.lastname@example.org.
||Truth in Justice