E-Mail This Article to a Friend Cabral’s sharp aim What will you do when the FBI comes calling? BY HARVEY SILVERGLATE
	More » On the Web "Whistle While You Work" A closer look at the Sarbanes-Oxley whistleblower statute and its aftermath so far. From the Corporate Counsel section of the National Law Journal. » Related Stories "Finneran’s Wake" US Attorney Michael Sullivan’s dubious prosecution of former House Speaker Thomas Finneran. "‘Animal’ Crackers" Sullivan’s double standards are revealed in the federal prosecution of alleged mafioso Vincent Ferrara. "Cell-block Beatdown" David S. Bernstein’s in-depth coverage of allegations of prisoner abuse at Suffolk County jails.

At first glance, it looked like a battle between the spider and the fly: the United States attorney, armed with the federal purse and an arsenal of notoriously vague criminal laws, versus the then-embattled Suffolk County sheriff, the first woman to hold that macho post. As time wore on, it began to look more evenly matched. But in the end, Sheriff Andrea Cabral, along with her lawyer, Walter Prince, pulled off an unlikely, well-deserved victory when US Attorney Michael Sullivan and his assistant prosecutor John T. McNeil closed down a two-year hunt for Cabral’s scalp, one that seemed to implicate her in a history of brutality at the Suffolk County House of Correction. Thanks to Cabral’s chutzpah, it turned out to be a David and Goliath story.

To hear the Boston Globe tell it, however, Sheriff Cabral and her staff somehow got away with obstructing a legitimate federal investigation. That point of view shouldn’t come as a surprise, given the local newspaper of record’s long history, reaching back several decades, of indulging the antics of federal prosecutors. But the Globe’s Cabral-Sullivan story, which was based on skewed reporting, shouldn’t be allowed to stand. It’s time to set the record straight and to make clear why we should be scared by its implications for each and every one of us.

JAILHOUSE BLUES

It’s no secret that for many years there’s been a pattern of prisoner abuse by guards in Suffolk County’s jails and correctional institutions. The situation got dangerously out of hand under the disastrous reign of Cabral’s predecessor, Richard J. Rouse, who served as Suffolk County sheriff from 1996 to 2002. A former state legislator, Rouse resigned amid a torrent of negative media coverage and the release of a commission report detailing rampant deficiencies in the House of Correction under his watch. Then-governor Jane Swift appointed Cabral to Rouse’s vacated position in December 2002, and slightly less than two years later Cabral won the election for Suffolk County sheriff after a bruising September 2004 primary. Cabral presented herself as a long-overdue reformer willing to assert the sheriff’s authority over the notoriously out-of-control guards and to end the charnel-house abuses.

At the time, Cabral — black and female — may have seemed an unlikely choice to assert control, notwithstanding her prior experience as a Suffolk County assistant district attorney, where she served as chief of district-court prosecutions for nearly four years, and as an attorney in the office of the state attorney general. It turned out that Cabral’s velvet glove hid an iron fist. Little did she know, however, that she’d have to use her strength not only against recalcitrant guards, but also against out-of-control FBI agents and federal prosecutors.

Cabral and her top staff decided to enforce rules requiring employees of county penal institutions to report, rather than to ignore or cover up, instances of prisoner abuse or suspicious injury brought to their attention. An early test of Cabral’s resolve came when her staff learned that a nurse, Sheila Porter, working for a company contracted to provide health services to the jail, was acting as an informant for the FBI, but had apparently failed to satisfactorily document and report an instance of suspected prisoner mistreatment to the departmental office in charge of investigating prisoner abuse, the Sheriff’s Investigative Division (SID). As a result, Nurse Porter was barred from entering the jail. (She could not be fired directly, since she worked for a contractor hired by the Sheriff’s Department, but barring her from access to the jail effectively ended her employment there.)

When they learned that the sheriff had ordered Porter barred from the jail, the FBI and the US Attorney’s Office, unbeknownst at first to Cabral and her staff, launched a criminal investigation of the sheriff and her higher-ups, in 2003. How could this happen? By a strange and circuitous route. In 2002, in the wake of a series of corporate scandals, Congress rushed to enact the now-infamous Sarbanes-Oxley Act (named for its leading congressional sponsors). The law, which many viewed as a well-intended if overzealous effort to reinforce corporate accountability, included a provision making it a felony, punishable by 10 years’ imprisonment plus a fine, for anyone who "knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offence." US Attorney Sullivan’s translation: Cabral fired Porter not because the nurse had failed to properly document and report possible evidence of prisoner abuse, as required by county and state regulations, but because the sheriff’s office had learned that Porter was acting as an FBI informant.

Given Cabral’s reputation as a reformer intent on ending prisoner abuse in the county’s jails, and the prosecutor’s later concession that Porter had indeed made a decision "not to document the information received from the inmate in the medical record" (although he somehow deemed that decision "appropriate" under the circumstances), it should have been immediately obvious to the feds that the sheriff was almost certainly more concerned with Porter’s failure to help the sheriff’s office root out abuse than with Porter’s talking to the FBI. At the very least, the ambiguity of the situation made a criminal prosecution a dead letter from the start. Yet the FBI and federal prosecutors are extremely sensitive about anything even remotely resembling a challenge to their authority. This sensitivity has been particularly acute since the FBI and the local federal prosecutor’s office found themselves, over the past couple of decades, enmeshed in an enormous scandal concerning the feds’ unlawful conspiracy with James "Whitey" Bulger and his fellow hoods. That unholy alliance drew skepticism and, later, outright dissent from elements of the state law-enforcement cadre who ceased trusting the feds in organized-crime investigations because of federal leaks of sensitive information to mobsters. The resulting tensions, and federal oversensitivities, have never fully abated. Endowed over the past quarter-century with a veritable arsenal of vague and broad laws (including, most recently, Sarbanes-Oxley), self-important federal prosecutors have been willing to harass average citizens and even state law-enforcement officers, including the sheriff of Suffolk County.

THE TALE OF NO

The Porter brouhaha resulted in a meeting, on June 16, 2003 — between Cabral, two of her staffers, and members of Sullivan’s office — ostensibly to discuss ways county and federal authorities might cooperate in remedying prisoner abuse at the jail. Instead, according to a seven-page letter written to McNeil by Cabral’s lawyer Walter Prince, Cabral and her staffers were informed bluntly by Assistant US Attorney Stephen G. Huggard that he had already designated the sheriff’s department as a target of a federal obstruction-of-justice investigation for barring Porter from the jail. Most people, when informed of their target status by a federal prosecutor, back down completely; in Cabral’s position, they would have immediately relented on Porter’s employment status and virtually allowed the feds to take over supervision of the jail. Or, if that proves unacceptable to the feds, they try to cut a deal for a more lenient charge or lesser sentence, combined with the targeted official’s resignation from office. Cabral, however, defied what has become the playbook here and across the country for the past quarter-century, and proceeded on the entirely proper assumption that she and her department had done nothing wrong. This obviously did not sit well with the folks occupying the spacious prosecutors’ suite at the federal courthouse, and they continued the investigation, looking for any shred of evidence, other than the word of self-interested witnesses, that might support their case against Cabral. (By this time, Porter had filed a civil lawsuit against the sheriff seeking money damages.)