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On November 16, 1987, a panel of the United States Court of Appeals for the Eleventh Circuit, per curiam, handed down a thirteen page, unpublished opinion in a case entitled United States v. Ofshe.' The decision was remarkable in several respects, but principally in that it expressly invited the indictment of a former Assistant United States Attorney for the crime of obstruction of justice based entirely upon conduct clearly undertaken in the interests of law enforcement and with the approval of the Department of Justice. The case in question came on the heels of an earlier decision of the same name2 that refused to dismiss drug charges against the defendant. Ofshe had alleged that he was denied sixth amendment rights to the loyal assistance of counsel because his lawyer had served as a covert government informer during the pendency of the indictment against Ofshe. The Court of Appeals held that Ofshe had not suffered "demonstrable . . . prejudice" nor was the government's conduct "sufficiently outrageous" to offend due process. Nonetheless, the Court included in its opinion a footnote to the effect that the prosecutor and the lawyer had engaged in "reprehensible" conduct that might warrant disciplinary action.3 The prosecutor in question, Scott F. Turow, filed a motion in the Court of Appeals to amend the opinion by deleting the footnote. He argued that his ethical responsibilities were not at issue in that case and that public censure, with neither prior notice nor opportunity to be heard, violated his rights to due process. The motion was supported by a memorandum filed by the United States stating that the conduct in

Presumed Guilty: The Court of Appeals versus Scott Turow