Federal judges have enormous power in a courtroom. Usually, they are very bright, very decisive, and pretty domineering. They also have lifetime tenure, subject to removal only on grounds of impeachment. Federal courts also use the single-assignment system (as opposed to what is known as a master calendar system) by which they will have a given case assigned to them from pre-trial all the way through to trial, meaning that a judge typically has lived with a given case through the process and knows it well.
Having litigated before such judges in quite a few settings (though not criminal), and having clerked for one back in the day, I can say with great assurance that, if the judge starts the trial by saying to you as a prosecutor, in effect, "what the hell are we doing here," you know your case is in pretty serious trouble. When the judge goes on for a half hour straight berating you, it is doubly so. This does not mean that a determined prosecutor can't push a case forward but it will be a real uphill fight.
The items that offended the judge in particular: both the prosecution's witnesses had dirty hands relating to the central issue in the case (both having themselves committed crimes); the government's own manual had stipulated for the past decade that a crime of this type could only be a crime if the defendant acted with a willful intent to violate the law (mens rea) and the prosecutor waltzes in with proposed jury instructions (i.e., jury instructions that he is asking the judge to adopt as the court's own and use in instructing the jury in this case) that say that such an intent is not needed for the jury to find the defendant guilty.
Therefore, a case that reeks and a total lack of integrity in the government's position. And the judge says, in effect, "what are you trying to pull in my court, Mr. Prosecutor." Not a happy position for the prosecutor here, though I think this one deserves to squirm a little for doing what he did.
I don't know much about the US law system, so I hope someone can clarify: what can happen if the prosecutors effectively say "our bad, we'd like to drop the case"? Can the process be stopped immediately and if so, are the prosecutors going to be affected in any way? Also, since the possibly unlawful recordings took place and the judge already knows about them, will it be raised a separate issue?
Prosecutors have great discretion on whether to bring a case in the first place and normally on whether to dismiss it at any point in the proceedings, including at trial. Under the U.S. legal system, prosecutors are supposed to (in theory, at least) be concerned with the idea of upholding justice first and foremost and only secondarily with gaining convictions. I think what probably offended the judge here most was that this prosecutor seemed bent on gaining a conviction at any cost, even if it was based on twisting the evidence and law solely to that end and regardless of whether it was right or not. In any case, at this point in this case, the prosecutor can simply dismiss the case and that would end it. If he does so, I doubt that any further repercussions would follow, since I don't think what he did here was so extreme as to warrant formal sanctions against him.
In extreme cases, prosecutors can be hit with charges of ethical misconduct and sometimes disbarred for abuse of their position. A recent case (where the prosecutor wound up resigning before being actually forced out) involved the prosecutor of the Duke lacrosse players who wound up admitting that he had conducted the prosecution for political reasons even in the absence of evidence for maintaining it (see the write-up here for details: http://www.nytimes.com/2007/06/15/us/15cnd-duke.html).
what can happen is nothing. prosecutors can drop a case whenever they want and they can't be sued for having brought it in the first place. they wouldn't even need, nor would they probably want, to say "our bad."
As for the recordings, the judge only cares about what the prosecutor brings to him. if there was no finding of fact about it then it just flys on by as one of the myriad aspects of the case left unproven.
Is there an avenue for the prosecutor to claim the judge is hostile to the government's side, and request a different judge? Or is his only choice to slog through the "uphill battle", and perhaps appeal the decision at the end?
I don't think modifying hardware you've purchased should be illegal, but it does seem odd to me that a judge can show that much emotion and still be considered a fair judge of an open case.
Having litigated before such judges in quite a few settings (though not criminal), and having clerked for one back in the day, I can say with great assurance that, if the judge starts the trial by saying to you as a prosecutor, in effect, "what the hell are we doing here," you know your case is in pretty serious trouble. When the judge goes on for a half hour straight berating you, it is doubly so. This does not mean that a determined prosecutor can't push a case forward but it will be a real uphill fight.
The items that offended the judge in particular: both the prosecution's witnesses had dirty hands relating to the central issue in the case (both having themselves committed crimes); the government's own manual had stipulated for the past decade that a crime of this type could only be a crime if the defendant acted with a willful intent to violate the law (mens rea) and the prosecutor waltzes in with proposed jury instructions (i.e., jury instructions that he is asking the judge to adopt as the court's own and use in instructing the jury in this case) that say that such an intent is not needed for the jury to find the defendant guilty.
Therefore, a case that reeks and a total lack of integrity in the government's position. And the judge says, in effect, "what are you trying to pull in my court, Mr. Prosecutor." Not a happy position for the prosecutor here, though I think this one deserves to squirm a little for doing what he did.