matinae’s blog

This is Just Incredible!!!!

I had the great honor of representing a young woman before the grand jury on a matter in which her father and the family dairy farm were being investigated for environmental criminal activity. During these proceedings, the neighbor of the dairy farm under investigation filed suit against the family alleging that the discharge under criminal investigation caused the death of several of her horses. Several weeks ago,I found out that the USEPA was not, at this time, going to pursue criminal sanctions against the dairy farm or its owner. That is pretty incredible, in and of itself. However, this is the incredible part. Those of you who practice in the criminal area are familiar with Rule 6 of the Federal Rules of Criminal Procedure the grand jury secrecy provisions. On January 25, 2008, the plaintiff in the civil suit filed a motion for continuance. Attached to her motion, as Exhibit A, was an e-mail from the federal prosecutor discussing the status of the criminal investigation into the dairy farmer and the dairy farm and the decision to decline prosecution. The e-mail was forwarded to her on January 16, 2008, stating “Here is the info we talked about.” The e-mail string reveals that it is the legal analysis of the case being presented to the grand jury. In essence, the AUSA received an e-mail from the ENRD seeking information that would allow the ENRD to respond to a request from Congress on the impact of the Rapanos decision. The AUSA responds with a detailed description of the case and the legal analysis of the case. It is in my opinion, at the least, a lapse in judgment by the prosecutor. And, in fact, could be a breach of the grand jury secrecy provisions of Rule 6. At a minimum, it bears some investigation. More later. As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com. WDJiii
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