An Isolated Situation

Law, Politics & Current Events

Somebody didn't like Hubert Vidrine Jr. of Opelousas, Louisiana.

Normally Hubert could probably weather that. It's hard to make your way in life without someone deciding that they don't like you. It's even harder if you are in a risk group, for instance, a businessman like Hubert Vidrine Jr. or a snarky asshole with a blog like me.

But Hubert Vidrine Jr. had the very bad luck to be disliked by Keith Phillips. And Keith Phillips was an agent of the United States Government.

The result of his dislike was a humiliating and life-crushing reign of terror including a bogus indictment. Last month, Hubert Vidrine Jr. finally got a measure of justice: a United States Magistrate Judge found the United States liable for the malicious prosecution of Vidrine and awarded him $1.7 million. In explaining her ruling, Magistrate Judge Doherty painted a picture of terrifying — and terrifyingly effective — misconduct, including evidence that Keith Phillips pursued Vidrine because doing so provided him with an opportunity to carry on a clandestine affair with another federal agent. Phillips has now entered a guilty plea to perjury and obstruction of justice for lying about his affair in the malicious prosecution case. Magistrate Judge Doherty points out that whatever his motive, the effect was the same:

Whether Agent Phillips’ true motives were, as plaintiff’s hypothesize, to have a cover and
vehicle for his illicit sexual affair, whether he had a personal vendetta against Hubert Vidrine,
whether as a brand new criminal investigator – giddy with the newly minted power and authority he
had previously lacked when serving in a supporting role – or whether a combination of all three, it
is patently clear Agent Phillips lacked the innate judgment and experience necessary to counter his
overzealousness, which unfortunately can arise when one is granted such awesome power over the
lives and liberties of others. Agent Phillips never stopped to consider the very significant legal
ramifications which automatically occurred when he shifted the focus from AFI, convicted of,
essentially, laundering hazardous waste, to Trinity, a company who at worst engaged in poor
housekeeping. Thereafter, and after the fact, he set about trying to make the facts fit the law as he
defined it, or to make the law fit the facts he thought he could sculpt, perhaps in order to conceal
his rookie mistakes, or perhaps to perpetuate an investigation which had become the vehicle for his
sexual assignations. Which of these particular motivations was truly at play, or whether it was a
combination of all of the above, is a question this Court need not, specifically determine, as that
mystery is Agent Phillips’ alone to reveal. It is sufficient for this Court to find Keith Phillips set out
with a flagrant and reckless disregard of the rights of Hubert Vidrine, in that he deliberately
controlled and skewed the investigation, falsified and sculpted reports and requests made to his
superiors, mislead the prosecutor, gave patently false testimony under oath to the grand jury, made
false verifications to this Court, all the while taking advantage of the opportunity he created to
pursue his clandestine sexual affair with Agent Barnhill.

Here's how Magistrate Judge Doherty summed up the basis for her findings. It's worth reading, because it's an excellent statement of the government's power over citizens:

Rather than finding Agent Phillips conduct and testimony supportive of a finding of the
existence of probable cause, this court finds Agent Phillips testimony, conduct and documentation
illustrate a deliberate patten of disregard for oaths taken, truth of the matter involved, wholly lacking
in intellectual honesty, and exhibiting a deliberate intent to mislead all involved, particularly the
prosecutors with whom he worked and who were relying upon his investigation and technical expertise in order to evaluate their case. Agent Phillips has displayed the very worst example of
abuse and misuse of the power and trust bestowed upon a governmental agent, and has brought great
shame upon the agency which had entrusted him with that power, responsibility, and authority.

The AUSA relied upon Phillips to gather, analyze, and present the evidence fully and fairly
to him and to the grand jury – Agent Phillips did not. Agent Phillips had been the technical and
regulatory expert of the case before his promotion, thus, the AUSA relied upon Phillips to fairly
explain and guide the way through the complex, technical data and regulations – Agent Phillips did
not. In short, as the primary witness before the grand jury, Phillips painted a frightening picture of
Hubert Vidrine, as a hazardous waste polluter of the magnitude “of Love Canal,” someone who
associated with a “known environmental terrorist,” and someone who was inflicting the risk of
cancer upon his fellow citizens in his quest for cheap alternative feedstock – all allegations wholly
ungrounded in fact or law. While any witness can be expected to make a few errors regarding details,
Phillips’ testimony was replete with misrepresentations, falsehoods, omissions, hyperbole, and
inflammatory statements. Furthermore, the errors and omissions were not random in nature; they
consistently served to strengthen the criminal case against Vidrine which Phillips was constructing.
This Court finds probable cause did not exist to indict Hubert Vidrine, nor to doggedly pursue him
for close to four years. Further, this Court finds Keith Phillips acted with malice in his actions, for
the reasons noted.

This Court finds Keith Phillips, for his own purposes, set out with intent and reckless and
callous disregard for anyone’s rights other than his own, and reckless disregard for the processes and
power which had been bestowed him, to effectively destroy another man’s life – conduct which
cannot go unaddressed, or unrecognized. This Court is acutely aware punitive damages are not
allowed in cases brought against the government, and, this Court has in no way awarded punitive
damages. However, given the egregious conduct displayed by an agent of the government and the
devastation wrought on otherwise law-abiding citizens, had punitive damages been allowable, this
Court would have awarded punitive damages in the hope of deterring such reckless and damaging
conduct and abuse of power in the future.

Not surprisingly, in some quarters on the right this malicious prosecution ruling is being spun as being about the EPA in particular rather than about federal law enforcement in general. That's a mistake — the power wielded malevolently here is not restricted to the EPA, nor is the misconduct.

In other quarters on the left, this case is being spun as a grotesque and rare exception, one that should not reduce commitment to environmental laws. As Walter Olson points out in his post at Cato, the New York Times carefully quotes environmental crimes prosecutor David Uhlmann to call this an "isolated situation."

Uhlmann is right — this is an isolated situation. But not for the reasons Uhlmann means.

This is an isolated situation because it is rare — freakishly rare, struck-twice-by-lightening rare — for federal law enforcement agents or federal prosecutors to be held accountable in any meaningful way for even serious misconduct against the Americans they accuse and pursue.

Even in the relatively rare cases where deferential courts find government misconduct, those findings rarely yield consequences more than dismissals of prosecutions or reversals of convictions. A recent USA Today study found that over 12 years courts found misconduct by federal prosecutors in 201 cases — yet only one of those instances of misconduct resulted in state bar action against the government miscreant. Other studies produce similar results — take, for instance, this study by the Northern California Innocence Project, which found that (1) prosecutorial misconduct was found in hundreds of surveyed cases, but only found to be material — that is, only yielded some sort of relief to the defendant — in 20% of those cases, and (2) of the 600 cases of prosecutorial misconduct found, only 1% resulted in California State Bar action.

Our courts are complicit. They rarely name the prosecutors in opinions finding misconduct. A few journalists and bloggers struggle to counter this by naming names — as they should. But for the most part, the vast majority of law enforcement is not detected or not reported, and what is reported or detected is not addressed. Law enforcement remains largely protected by the law, which immunizes its misconduct in all but the most extreme cases. (Today's example courtesy of Radley Balko — did an FBI agent take your Ferrari for a joyride like a bit character in Ferris Bueller's Day Off, and wreck it? Sorry bub — the government is immune. Tough luck!)

The fault lies not just in law enforcement or courts, but in ourselves — we have bought the law-enforcement-as-unquestionable-heroes concept uncritically, have re-embraced it after the noble sacrifices of law enforcement on 9/11, and have convinced ourselves that it is rational to mistrust government but trust law enforcement at the same time.

We need a society-wide change in the way we view law enforcement. We need to begin to look with skepticism at 40 years of insipid "law and order" rhetoric. Some conservatives need to stop their senseless habit of viewing the agent with the raid jacket and the gun as somehow more reliable or trustworthy than the regulator with the clipboard. Some liberals need to stop suspending their appropriate suspicion of law enforcement when cops are on the trail of something ideologically important to them, like environmental crime or sexual assault. We need, as a society, to reject the servile concept that questioning law enforcement is "setting criminals free" or "looney liberal" or the like.

If we don't, then the small measure of justice that Hubert Vidrine Jr. obtained will remain isolated and elusive. Government misconduct will continue.

Last 5 posts by Ken White

15 Comments

12 Comments

  1. TJIC  •  Oct 12, 2011 @9:14 am

    > The fault lies not just in law enforcement or courts, but in ourselves — we have bought the law-enforcement-as-unquestionable-heroes concept uncritically, have re-embraced it after the noble sacrifices of law enforcement on 9/11

    Careful where you wave that "we", Ken – it's loaded!

  2. David  •  Oct 12, 2011 @9:21 am

    misled

  3. Charles  •  Oct 12, 2011 @9:23 am

    And you didn't even mention the SCOTUS case from last term that let the New Orleans District Attorney's office of the hook for intentionally failing to turn over exculpatory evidence. It was apparently an entire office of lone wolves.

  4. Ken  •  Oct 12, 2011 @9:31 am

    David, did I misspell someplace?

  5. Stephen  •  Oct 12, 2011 @10:43 am

    You didn't, but the judge in her ruling did.

  6. Ken  •  Oct 12, 2011 @11:25 am

    Ah. She also had some apostrophe issues. Not throwing the first stone.

  7. Brian Dunbar  •  Oct 12, 2011 @12:20 pm

    I find myself turning more and more Libertarian.

    It's not because of things like this, where a bad apple found himself with some power and proceeded to ruin a guy.

    It's because guys like this are everywhere: he is the rule, not the exception. And the cops that beat the retarded guy to death in California. And the state of Texas that put a provably innocent man to death last year. And this and that and the other thing.

    One can ignore a snowflake. A whole bunch of them shut down the freeway.

  8. eddie  •  Oct 12, 2011 @3:25 pm

    That's us libertarians – beautiful unique snowflakes.

  9. VPJ  •  Oct 12, 2011 @6:14 pm

    Good that this guy pled guilty to perjury and obstruction. Also good that Mr. Vidrine gets some measure of satisfaction. But given that this has been going down for nearly 15 years now, I got a silly-ass question: Did this guy have a 15-year career as an EPA special agent?

    If so, one wonders how many other innocents he screwed over in that time.

  10. deadcenter  •  Oct 12, 2011 @6:45 pm

    "This is an isolated situation because it is rare — freakishly rare, struck-twice-by-lightening rare — for federal law enforcement agents or federal prosecutors at any level to be held accountable in any meaningful way for even serious misconduct against the Americans they accuse and pursue."

    Fixed that for you.

    hope my tags work, i'm unusually inept with them

  11. SPQR  •  Oct 12, 2011 @7:15 pm

    Yesterday, I think PBS Frontline did a story on the FBI screw up of the investigaton of the anthrax attacks. There what was probably the second or third most important FBI investigation of its history in my opinion was screwed up repeatedly for years. Think back to the fear a decade back, when people had died from contact with anthrax in the mail, mail deliveries were halted to theCapitol and panic would ensue in large corp mail rooms if an envelope with powder was found. A dozen more real anthrax letters, and the nation could have been catastrophically paralyzed. Only a score or two more deaths and the entire postal system could have been effectively destroyed. First wasting years of important time, and manpower, persecuting Stephen Hatfield and then persecuting Bruce Ivins.

    Hatfield was persecuted because he had connections to South Africa that could be used to tar him. Ivins was persecuted because he had some disturbing obsessions/fetishes that made him vulnerable until after a year and a half of harrassment by the FBI he committed suicide.

    At which time, the FBI loudly proclaimed that Ivins was proven to be the guy by DNA testing of the anthrax in a flask in his lab (like Hatfield, Ivins worked in an Army lab on biological weapons including anthrax – however, his lab did not include the equipment necessary to "weaponize" anthrax ie., make it into a fine airborne powder and no signs of anthrax were ever found at Ivins home).

    Then the National Academy of Sciences was asked to review the FBI sponsored lab work (something that does not happen often enough – the FBI's lab work in general is grossly overrated). The NAS report soft pedaled its conclusion but the conclusion is clearly that the DNA work was not conclusive. We don't really know if Ivins was the guy.

    We don't know. Thanks to FBI screw ups. Add to that the Richard Jewell investigation F/U. The FBI adding their own special polish to Randy Weaver – where they were caught fabricating evidence. The FBI wonder children at Waco making a further mess of the ATF's mess.

    And to top it all off, the FBI was even involved in the Fast & Furious / Gunwalker fiasco, fixing background checks so the ATF's felon "informants" would pass background checks when making strawman purchases at gun shops to build up the administration's propaganda effort for gun control.

  12. marco73  •  Oct 13, 2011 @6:06 am

    SPQR – you mentioned Richard Jewell. That case is one that really turned by opinion of Federal agents upside down. My father was in law enforcement, and I probably would have followed him into something law related if not for some other circumstances.
    We can't find a suspect, so let's take a guy who is just a security guard, so obviously not of our "class", and set him up as the scapegoat for one of the most publicized bombings of the 1990's.
    Leaks to a salivating press, falsified evidence, lies stacked upon lies.
    When the fabrications all collapsed, most of the agents involved suffered zero repercussions. Nice work if you don't care about your soul.

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