November 25, 2011
Lindsey Hearing And Probable Ruling This Tuesday
"I don't know if there was a stench that developed in this case, but there was a bad odor at times, and so the issue that I'm inviting both sides to address is...whether either through a finding of due process violations or in the exercise of my supervisory power...something akin to the whole being greater than the sum of its parts justifies throwing out this conviction, because a lot of the parts that led up to this conviction are extremely troublesome." U.S. District Court Judge Howard Matz during 6-27-11 post-trial hearing.
The briefs are in and the hearing is set for this Tuesday at 10:00AM in the Lindsey Manufacturing FCPA prosecution. At issue is the Lindsey-Lee Defendants' Motion to Dismiss the Indictment With Prejudice Due to Repeated and Intentional Government Misconduct. A potential bad sign for the Government, as if it needed another one, is the Court's November 16th Order requiring the U.S. Attorney's Office to file certain Government and Court exhibits in the record by November 18. The Court had already publicly criticized the Government for its use and handling of some or all of these exhibits. The Government filed the exhibits in question on November 17, and they are now available through PACER.
Judge Matz has previously characterized the Government's investigation and prosecution of the case as "extraordinarily sloppy at best." He was apparently so troubled by the Government's actions that he generated and kept a post note during trial in order to keep track of them.
November 24, 2011
Just wanted to take a moment to thank all the readers of the white collar crime prof blog for stopping by and reading this blog. Your readership is truly appreciated. Also wanted to especially thank co-bloggers Lawrence Goldman and Solomon Wisenberg for their wonderful entries. Happy Thanksgiving.
(esp)(blogging from Atlanta)
November 23, 2011
Some Further Thoughts On Judge Sullivan's Order
My colleague Ellen Podgor recently commented here on Judge Emmet Sullivan's 11-21-11 ORDER in In Re SPECIAL PROCEEDINGS, the ancillary proceedings initiated by Judge Sullivan to investigate the multiple Brady violations committed by DOJ prosecutors in U.S. v. Theodore Stevens. The ensuing investigation was conducted, on Judge Sullivan's behalf, by veteran DC lawyers Hank Schuelke and William Shields, who have now issued a report that is, I hope, only temporarily under seal.
It is obvious from reading his Order that Judge Sullivan is still outraged. That's a good thing. Until enough federal judges get hopping mad about systemic DOJ Brady violations, we will have no real legislative discovery reform at the federal level.
In addition to the points highlighted by Professor Podgor, Judge Sullivan's Order notes the following findings and conclusions by Schuelke and Shields:
1. "[T]he investigation and prosecution of Stevens were 'permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness.'"
2. "[A]t least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial."
3. Schuelke and Shields "found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed--at least to the Court and to the public--but for their exhaustive investigation."
4. Schuelke does not recommend criminal contempt proceedings, because "in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. [Section] 401 (3), the contemnor must disobey an order that is sufficiently 'clear and unequivocal at the time it is issued'... [but] no such Order existed in this case. Rather, the Court accepted the repeated representations of the subject prosecutors that they were familiar with their discovery obligations, were complying with those obligations, and were proceeding in good faith."
5. "Mr. Schuelke also notes that '[i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation.'"
6. "Mr. Schuelke 'offers no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. [Section] 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.'"
It is clear that most or all of this Report is going to be publicly released. It will be interesting to compare it to DOJ OPR's report, assuming that DOJ decides to release it. Two attorneys for two of the prosecutors under scrutiny have already announced that OPR's report clears their respective clients. DOJ has a long history of ignoring the critical comments of federal judges. The latest example of this took place in reference to the prosecution of former Blackwater employees. Despite Judge Ricardo Urbina's scathing factual findings regarding the conduct and credibility of the original set of prosecutors, they were treated to a laudatory/fawning DOJ press release upon reassignment. Urbina, like Sullivan, is one of the most respected federal judges in the country and his factual findings were not questioned or disputed on appeal.
Some final thoughts.
1. For every Emmet Sullivan (or Ricardo Urbina or Howard Matz) there are 10 federal judges who unquestioningly accept the Government's representations regarding Brady issues, irrespective of non-frivolous matters brought to their attention by the defense bar.
2. The defense attorney has an obligation to ferret out Brady issues through the filing of detailed, fact-specific Brady motions closely tied to the formal allegations in the case.
3. We must rapidly move toward open discovery in the federal criminal system, with appropriate safeguards in place to protect witnesses where necessary. The presumption, however, must always be in favor of open discovery. Many states have gone this route without any disastrous consequences. It is appalling that civil litigants have substantially more access to discovery at the federal level than do people who are literally fighting for their liberty.
4. In the meantime, federal prosecutors must be relieved of the burden of determining whether exculpatory information is material. DOJ already recommends this in the Ogden Memo, but it should go one step further and require it. The rule should be: IF IT HURTS MY CASE IN ANY WAY, TURN IT OVER! When a man judges himself, the verdict is always in his favor. When a federal prosecutor, in the heat of trial or pretrial battle, is deciding whether exculpatory evidence is material, the verdict will too often be that it is not. Let's end this invitation to injustice.
5. Of course, federal prosecutors do not think like criminal defense attorneys. That's okay. We don't want them to! But this is the very reason why they cannot ultimately be trusted to make the determination of what is or is not exculpatory. The competent defense attorney headed to trial or sentencing is constantly thinking about anything that will help the defense. Prosecutors are not trained or inclined to do this. Even when they are trying to fulllfil their Brady obligations, AND THE VAST MAJORITY OF FEDERAL PROSECUTORS ARE TRYING TO DO THIS, they cannot be trusted to spot the issues. This difference in outlook/inclination/thought processes really comes to the fore during the period leading up to sentencing hearings, when the prosecutor looks at the defense attorney like a deer in the headlights when reminded of his/her obligation to provide any and all mitigating evidence!
6. Please. Let's have no more: "We understand our Brady obligations and intend to abide by them." Congress should pass a statute requiring some form of detention for any prosecutor who utters this bromide.
November 23, 2011 in Contempt, Corruption, Current Affairs, Government Reports, Investigations, Judicial Opinions, Legal Ethics, Media, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (4) | TrackBack
In the News & Around the Blogosphere
DOJ Press Release, New Jersey Man Pleads Guilty in $670 Million Fraud Scheme
Editorial, LATimes, Defending the Brady Rule
Andrew Stern, Reuters, Former Obama fundraiser Rezko gets 10-year sentence
November 21, 2011
NACDL White Collar Criminal Defense College at Stetson
The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.
More Information and to registrar here
A. Brian Albritton, Phelps Dunbar, LLP
Henry W. Asbill (Hank), Jones Day
Joe Bodiford, BodifordLaw
Barry Boss, Cozen O'Connor
Ellen C. Brotman, Montgomery McCracken
Robert M. Cary, Williams & Connolly LLP
Vince J. Connelly, Mayer Brown
Lucian E. Dervan, Southern Illinois University School of Law
Donna Lee Elm, Federal Public Defender, Middle District of Florida
James E. Felman, Kynes, Markman & Felman, P.A.
Jack E. Fernandez, Zuckerman Spaeder, LLP
Todd Foster, Cohen & Foster, P.A.
David Gerger, Gerger and Clarke
Nina J. Ginsberg, DiMuroGinsberg, PC
Lawrence S. Goldman, Law Offices of Lawrence S. Goldman
John Wesley Hall, Jr., John Wesley Hall Little Rock Criminal Defense
A. Jeff Ifrah, Ifrah Law
Anthony A. Joseph, Maynard Cooper and Gale, PC
Frank Klim, Stetson University College of Law
John F. Lauro, Lauro Law Firm
Bruce Lyons, Lyons and Sanders Chartered
Terence F. MacCarthy, Distinguished Professorial Lecturer, Stetson
Edward A Mallett, Mallett and Saper, L.L.P.
Bruce Maloy, Maloy, Jenkins, & Parker
David Oscar Markus, Markus and Markus, PLLC
James McComas, Retired
Michael D. Monico, Monico, Pavich and Spevack
Jane W. Moscowitz, Moscowitz and Moscowitz, P.A.
William Nortman, Akerman
Kevin J. Napper, Carlton Fields
Cynthia Eva Orr, Goldstein, Goldstein and Hilley
Patricia A. Pileggi, Schiff Hardin, LLP
Barry J. Pollack, Miller & Chevalier
Mark P. Rankin, Shutts and Bowen, LLP
Shana-Tara Regon, NACDL
Michele A. Roberts, Skadden Arps Slate Meagher and Flom, LLP
Charles H. Rose III, Stetson University College of Law
Kerri L. Ruttenberg, Jones Day
Gail Shifman, Shifmangroup
Adam P. Schwartz, Carlton Fields
William N. Shepherd, Holland & Knight LLP
Neal R. Sonnett, Law Offices of Neal R. Sonnett, PA
Ed Suarez, The Law Offices of Ed Suarez, P.A.
Larry Thompson, Former Deputy Attorney General U.S. Department of Justice and Vice President of PepsiCo
Gary R. Trombley, Trombley & Hanes
Albert A. Vondra, PricewaterhouseCoopers, LLP
Morris “Sandy” Weinberg, Jr., Zuckerman Spaeder LLP
Peter H. White, Schulte Roth & Zabel LLP
Solomon L. Wisenberg, Barnes & Thornburg LLP
Brady is "Hot" - Order in Stevens
The DOJ previously admitted to its failure to produce exculpatory information and "moved to set aside the verdict and dismiss the indictment of Senator Stevens with prejudice." (see here) Judge Emmet G. Sullivan now issued an order that notes
"(1) the significance of the government's decision to dismiss the indictment and not to seek a retrial; (2) the government's admission that it committed Brady violations and made misrepresentations to the Court during the prosecution of Senator Stevens; (3) the prosecutorial misconduct that permeated the proceedings before this Court to a degree and extent that this Court had not seen in twenty-five years on the bench; and (4) the likelihood based on events during and after the trial, including the information revealed by the Department of Justice in support of its motion to vacate the verdict and dismiss the indictment, that the prosecution team may have committed additional constitutional and procedural violations during the Stevens prosecution that had yet to be discovered or addressed, the Court appointed Henry F. Schuelke, III to investigate and prosecute such criminal contempt proceedings as may be appropriate against the six Department of Justice attorneys responsible for the prosecution of Senator Stevens...."
The court noted how Mr. Schuelke had submitted in camera a 500-page "report detailing the findings of his investigation." The court is allowing DOJ and attorneys for Senator Stevens "the opportunity to review the report." These individuals will be allowed to make objections as to why this report should not be released. The sealed materials cover matters related to the cases of Boehm, Kott, Kohring, and Stevens. The court concludes it's order stating, "[W]hile the Court will give appropriate consideration to any legal argument to withhold Mr. Schuelke's Report from the public, the Court notes that the 'presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." (citation omitted).
In the News & Around the Blogosphere
Michael Rothfeld, WSJ, No Mr. Nice Guy—Just Ask Wall Street
Mike Salinero, Tampa Tribune, Jury convicts White of 7 corruption counts
FCPA Professor, ABA Ponders FCPA Reform
Tamer El-Ghobashy, WSJ, Prosecutors Lose Corruption Case
Sheri Qualters, NLJ,1st Circuit denies bail to former Massachusetts House speaker
Patricia Hurtado, Bloomberg, U.S. Prosecutors Seek Delay in SEC Case Against Rajat Gupta