Friday, July 7, 2006

Prosecutors Under the Gun

Assistant United States Attorneys have come in for criticism in two recent opinions regarding the veracity of their statements to courts.  In United States v. Stein, the prosecution of 16 former KPMG partners and employees, U.S. District Judge Lewis Kaplan criticized the government's assertions regarding pressure it put on KPMG to cut off attorney's fee payments for the defendants despite a long-standing firm policy to pay such expenses.  In addition to finding the application of the Department of Justice's Thompson Memo resulted in a constitutional violation, Judge Kaplan also noted that the prosecutors were "economical with the truth" in their filings and testimony.  While not calling them liars, the judge clearly implied that their statements were not fully truthful and misleading in several places.

U.S. Attorney Michael Garcia responded by sending a letter to the court (available below), dated only four days after the opinion, asking the court to withdraw the statement regarding being "economical with the truth," change the characterization of the testimony of prosecutors, and withdraw references to the prosecutors by name.  Garcia's letter states, "The Government's stance in connection with this matter was an Office position, and the Government's submissions were approved by layers of supervisors.  If the Court continues to find fault with those submissions, the fault should not be attributed to individual prosecutors."  That raises an interesting question about the responsibility of individual lawyers for statements made on behalf of the government.  The professional responsibility rules govern individual lawyers, not law firms or government offices, and while a submission on behalf of the United States is not that of an individual lawyer, there are people behind the statements.  Should judges avoid naming names when they observe misconduct?  Garcia's letter raises fair questions about Judge Kaplan's interpretation of the evidence, but that is more appropriately advanced in a motion for reconsideration.  The question of keeping a prosecutor's name out of a judicial opinion, if the person is found to have been "economical with the truth," is a much tougher one, I think, because if only "the Office" is responsible then perhaps no one really is held accountable.

In United States v. Clark (here), Ninth Circuit Judge Alex Kozinski wrote a concurring opinion asserting that the AUSA arguing the case tried to mislead the court about record support for a judicial finding relevant to a sentencing enhancement.  While the majority held that the lawyer's reference to a sentence fragment in the record was not intended to be misleading and could be interpreted as supporting the goverment's argument, Judge Kozinski found otherwise, stating:

I don’t believe that quoting portions of a sentence while leaving out key qualifiers is reasonable conduct for an attorney of this court. I don’t believe that making assertions in a brief regarding disputed factual points, without providing a citation to the record, amounts to reasonable attorney conduct.  I don’t believe that ignoring the context of statements in the record — the timing, circumstances and purpose — amounts to reasonable conduct. In short, I don’t believe that it is appropriate or reasonable for a lawyer to pluck a few words from the middle of a sentence and pretend that they say something very different from what they mean in context. This is true of every lawyer who appears before us, but it goes doubly for lawyers who represent the government in criminal cases.  See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993), ("Prosecutors are subject to constraints and responsibilities that don’t apply to other lawyers. While lawyers representing private parties may—indeed, must—do everything ethically permissible to advance their clients’ interests, lawyers representing the government in criminal cases serve truth and justice first.").

The cite to Kojayan is interesting because in that case, the slip opinion identified by name the AUSAs responsible for misstatements to the court, but the opinion in the bound volume had the names removed.  Similarly, while Judge Kozinski's concurrence in Clark finds that the AUSA's conduct was unreasonable, there is no mention of the person's name.  Is this another situation where "the Office" takes the responsibility but not the individual?  Clark involves a concurring opinion, so it is more appropriate to keep the lawyer's name out of the reported decision.  As lawyers subject to the same professional responsibility rules as other lawyers, I think a good argument can be made that there is a need for some individual accountability when a prosecutor misstates the record or is "economical with the truth."  If identifying the AUSA by name is not the best vehicle, then something else should be used to make it clear to the public that such conduct is a violation of the rules of the profession.  (ph)

Download kpmg_us_attorney_letter_june_30_2006.pdf


UPDATE:  The Wall Street Journal Law Blog reports (here) that Judge Kaplan denied the U.S. Attorney's request to modify the opinion, including refusing to remove the names of the AUSAs.  It will probably be a few more weeks before a decision is made on appealing the decision, assuming the government can appeal under the collateral order doctrine.  KPMG is not a party to the case, so it's hard to see how it has standing to seek review. (ph)

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» Economic with history? from Appellate Law
White Collar Crime Prof Blog has a post detailing the efforts of US Attorneys to withdraw opinions which characterize the representations of AUSAs as less than truthful.Granted, the “sins” of the AUSAs are not nearly as bad as those of [Read More]

Tracked on Jul 7, 2006 3:41:03 AM

» KPMG on TCS from Ideoblog
My TCS column on the KPMG decision has been posted. I expand on last week's discussion. Update: The government and Judge Kaplan have been tussling over the language in his opinion, as discussed in WSJ Law Blog and White Collar [Read More]

Tracked on Jul 7, 2006 9:19:18 AM


The best solution to the objection raised by the U.S. Attorney in Stein: add to the opinion the names of the responsible supervisors and do not remove anyone's name. Under the Rules of Professional Conduct, a subordinate attorney is personally responsible for an ethical violation he or she commits, even if a superior directed or approved it. The same concept applies here. As an ex-AUSA, I believe that keeping the names of the line prosecutors in the opinion is an appropriate reprimand for their conduct and should make other AUSAs think twice about being economical with the truth. The U.S. Attorney should understand better than most people that deterrence of misconduct is an appropriate goal of punishment.

Posted by: David Walk | Jul 7, 2006 5:07:37 AM

PH wrote: "Similarly, while Judge Kozinski's concurrence in Clark finds that the AUSA's conduct was unreasonable, there is no mention of the person's name."

Peter, if you look at the top of page 2 of the slip opinion, you can see whom Judge Kozinski was referencing. So, while Judge Kozinski didn't mention the prosecutor's name, it's right there for the world to see.

Incidentally, in a Ninth Circuit case from last year, one judge concurrs in the opinion to specifically name the prosecutor who acted unethical. He amended his concurring opinion, omitting the reference to the prosecutor, after receiving a letter from the U.S. Attorney requesting that he do so. I can't remember the case name, though I am going to look it up.

I've long thought that someone could write an excellent law review article examining the problems resulting from a refusal to identify unethical prosecutors. After all, it obviously bothers prosecutors to have their names attached to their unethical conduct. Couldn't we therefore make a strong argument that judges can deter prosecutorial misconduct by identifying unethical prosecutors in case opinions?

Posted by: Mike | Jul 7, 2006 11:49:33 AM

As a former State AG I can tell you that being "economical with the truth" only matters when the Defendant has some measure of power.

Otherwise I've seen high-powered attorneys lie like rugs, in my cases and others.

It's a dirty profession, generally and not for those who dare to have ideals of justice and whatnot.

Here's an interesting case about overzealous police prosecution; we'll see where it goes!


Posted by: Christopher King | Jul 8, 2006 10:57:44 PM

After reading horrible things about Kozinski in regards to the Tommy Thompson case, it's kind of encouraging to read that he is trying to hold the AUSA to standards by naming them when appropriate.

To a layman, it's very weird, when you think about it, that the history of everyone involved in every prosecution is not well known to all participants. For example, the cop's personnel record is not normally allowed into the record, but his credibility is paramount.


Posted by: Steve White | Dec 5, 2007 7:54:57 AM

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