March 5, 2011
ABA White Collar Crime Conference - At What Cost Winning
This panel was moderated by Michael Pasano, Carlton Fields. It started with a scene from the Verdict with Paul Newman - a scene that explores the question of the tension between justice and winning. The presentation used three movie clips from different movies to discuss the ethical conduct of lawyers.
One of the first topics explored was the prosecutor/defense attorney relationship. Nina Marino, Kaplan Marino, spoke about how she has never been a prosecutor. Mark Filip, Kirkland & Ellis, talked about the role of a lawyer in the court, but how you can be colleagues outside the courtroom. Judge Paul Borman noted that in criminal cases there is civility - he does not always see the same in civil cases. Andre Birotte, Jr., U.S. Attorney for the Central District of California, talked about the training that goes on in his office. There is no case worth cutting corners.
The panel looked at the celebrity defendant, leaks to the press, questioning the venire, the more aggressive use by prosecutors of filing pre-trial motions, and an assortment of other ethical issues. Some highlights included:
- Nina Marino said there is one thing you have - it's your integrity - and if you lose this you lose your ability to effectively represent your client.
- U.S. Attorney Melinda Haag, said that when the case involves a celebrity, she tries to treat it the same as any other case. She tries to put the celebrity status aside.
- Mark Filip noted that structure/procedure can make a difference in a case - for example, whether it is the local US Attorney handling the case or a special prosecutor - especially if this is the career case for the attorney and it is all they are handling.
- Judge Borman talked about how difficult it can be for the prosecutor to comment on evidence that did not come in but was mentioned by the defendant in perhaps opening statement. It is espcially difficult when it might cross into the realm of the defendant not testifying, which of course the prosecutor can make no comment about.
- The panel talked about how DOJ views defense counsel when they bring what the prosecution believes to be frivolous claims - claims of prosecutorial misconduct. This led to a discussion of bullying by the government. Michael Pasano gave the example of the prosecutor who threatens that if you don't take a plea the prosecutor he/she will indict the wife and others related to the target. U.S. Attorney Melinda Haag tried to get the audience to see another side to this action, using an example of a drug case where the mother, father, and grandmother are all involved. She said she was thinking about a small child in the negotiation and who would care for that child.
- In discussing leaks, U.S. Attorney Birotte spoke about the difficulties with leaks. He said they tell their agents that things need to be kept confidential. US Attorney Haag reminded the audience of First Amendment rights here.
- Nina Marino spoke about the importance of being able to question the jury venire. Judge Borman initiates the voir dire, but lets the parties do follow-up questions. Michael Pansano noted that many judges don't allow follow-up questions.
- U.S. Attorney Melinda Haag thought a more aggressive use of pre-trial motions by prosecutors was good. She said you don't want to pollute the trial with inadmissible evidence. But Judge Borman jumped in here and said - why don't you run it by the defense first- maybe they'll agree and a hearing will not be necessary on this.
The panel finally got to a discussion of Brady- a topic of enormous importance. Mark Filip said that as a prosecutor you need to try and find the truth with a cooperator. A healthy dose of cynicism with a cooperator is important. U.S. Attorney Andre Birotte said you need to try and corroborate the information given by cooperators. If you get information that is helpful to the defense you need to turn it over. He said he thinks the department takes this seriously. He said that some small number of defense attorneys are using prosecutorial misconduct as part of the playbook. On the other side, Nina Marino told of her experience in representing a cooperator - that a main witness being a substance abuser - was not being considered by the government to be Brady. She noted that the agents were deciding that something would not be helpful to the defense - things that she thought she could use if she were representing the defendant. Judge Borman noted that if in doubt of whether something is Brady - go to the judge and ask him or her. Don't take a chance of needing to retry the case. He has received items from prosecutors and it was clear that it was Brady.
I was troubled by the Brady discussion and am glad the ABA is doing a study to find out what is happening across the country. To me the problem here is clear - can the government really know what is useful to the defense. Prosecutors can't and shouldn't be making the determination of whether something is Brady or not. Hopefully there will be a change to the rules of criminal procedure to recognize the existing problems in discovery practices.
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