By Erin Sherbert
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By Leif Haven
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By Kate Conger
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At the same time, considering the thousands of hours Ryan's office has pumped into BALCO, the small courtroom returns five convictions raise questions about its worth. Judge Susan Illston grazed that topic last October during the sentencing of BALCO founder Victor Conte Jr., who received a term of four months after the U.S. Attorney's Office nixed 40 of 42 charges against him and two co-defendants. In the future, Illston said, prosecutors ought to weigh potential charges "at the beginning and not the end of the case."
Attorneys who have worked with Ryan believe he should heed the words. More than one portrayed him as "consumed" by the BALCO-inspired media craze, holding countless meetings with his prosecutors on the case. As the scandal lurches into its fourth year, one lawyer in his office asks, "Shouldn't he pay that much attention to every case?"
Illston's tut-tutting marked yet another small disgrace for Ryan's prosecutors in front of a federal judge. Perhaps the most embarrassing episode occurred last year before U.S. District Judge Charles Breyer during the trial of an alleged cocaine dealer.
Much of the prosecution's case relied on a one-time drug trafficker turned DEA informant, whom the FBI had fired ("Bait and Snitch," SF Weekly, Nov. 23, 2005). On cross-examination by a defense lawyer, a DEA agent first insisted he had no idea why the FBI released the snitch, then later admitted he knew.
Realizing the agent might have committed perjury, Breyer pointedly asked whether prosecutors wanted to drop the charges. He went so far as to summon Choi, Ryan's first assistant, from her office on the 11th floor of the federal building to his courtroom on the 19th. She opted to press on with the case.
It proved a ruinous choice. By leaving the agent on the stand after his apparent contradiction, prosecutors virtually forced him to invoke his rights against self-incrimination. Once he stepped down, Breyer threw out his testimony, crippling the case. After a feeble effort to continue, prosecutors finally dismissed the charges later that day.
The fiasco prompted Breyer to order a federal probe into possible misconduct by the snitch, the agent, and the DEA. He spared prosecutors, praising them for their ethics, noting that they provided key details on the informant to the defense. Yet it's fair to ask whether the two relatively inexperienced attorneys who bungled the case adequately prepped the agent for his testimony, or whether Choi should have spiked the tainted case when Breyer asked.
Current and former prosecutors assert the two prosecutors needed the kind of veteran oversight that has seeped out of the office the last three years. Meanwhile, defense lawyers portray Choi's mulish refusal to drop the case as symptomatic of Ryan's legal ethos.
"It's part of a win-at-all-costs mentality," says Ian Loveseth, the defense attorney in the case. "There's been a loss of rational perspective."
Critics fault that tunnel vision for a series of toe-stubbings by Ryan's prosecutors. In April, Breyer ordered a retrial in a death threat case after prosecutors neglected to disclose details to the defense about an expert's potential testimony. During a theft trial last year, Judge Jeffrey White excoriated prosecutors for failing to cough up information on the defendant to his lawyer; they soon dropped the case.
But those flare-ups were cool breezes compared to Judge William Alsup's eruption this summer over the steady refusal of prosecutors to release to defense lawyers the names of witnesses and informants in an ongoing murder case. Prosecutors maintain that divulging the identities invites retaliation on the sources from allies of the gang members facing homicide charges; defense attorneys argue they need the names to investigate the case.
During a pretrial hearing, Alsup, after months of futile prodding of prosecutors, blew up at them. He swatted away the retaliation rationale as "bogus" and charged that prosecutors sought only a "tactical advantage." They have appealed a sanction imposed by him that could exclude the unnamed sources from testifying.
"Prosecutors are going to fight tooth and nail to give as little as they can and not turn over anything until the very last minute," says Richard Mazer, who represents a defendant in the case. "They're going to stonewall as much as they can."
If that tactic represents a change in the Northern District, Macaulay, Ryan's spokesman, counters that federal prosecutors across the country employ the strategy. Without concealing their identities, he adds, the sources could end up dead.
Legal observers theorize that the tensions between Ryan's office and the federal bench would abate if he forged stronger ties with the judges. Instead, attorneys in the office claim, he eschews reaching out to judges, and his absence at an annual judicial conference last year caused a stir. "That's like saying 'fuck you' to the judges," one prosecutor says.
Former federal prosecutor Little, who talks to Ryan on occasion, doubts the U.S. Attorney will change his approach. Still, despite the heavy criticism lobbed at Ryan, Little places him on par with former U.S. Attorney Joseph Russoniello, and well ahead of Michael Yamaguchi. As for comparisons to another U.S. Attorney, Little says, "Bob Mueller was an exceptional federal prosecutor. To say Kevin Ryan is not Bob Mueller is not a bad thing."