Monday, June 6, 2005
"The government’s brief is an effort to weave a rope of sand, and to imbue a trial with evidentiary substance and procedural fairness when it was sorely lacking in both. With regard to the evidence, the prosecutors dutifully characterize the defendant as plainly guilty, and describe their proof as "strong" or even "compelling." (G.Br. 24, 112.) This is standard rhetoric for those who write the red-covered briefs in criminal cases. But if this was a "strong" case, then there is no such thing as a weak one. Notwithstanding the government’s cavalier description, this case turned on a "threadbare phrase," United States v. Mulheren, 938 F.2d 364, 370 (2d Cir. 1991)—Quattrone’s one-line e-mail urging his colleagues to "follow [the] procedures" contained in a standard corporate document retention policy. As the Supreme Court reminded the government only recently, "[i]t is, of course, not wrongful for a manager to instruct his employees to comply with a valid document policy under ordinary circumstances." Arthur Andersen LLP v. United States, No. 04-368, 2005 WL 1262915, *5 (U.S. May 31, 2005)."
This will be a tough one for the government....do I dare say again....that's what happens when you take shortcuts (obstruction charges as opposed to investigating fully the underlying substantive conduct).
(esp) (with thanks to Atty. Mark F. Pomerantz for providing the blog with this brief)