Friday, May 4, 2012
Nobody messes with Judge Reggie Walton. Here is a great post from Mike Scarcella of BLT (Blog of Legal Times) on recent bench conferences in the Roger Clemens case. Defense attorney Mike Attanasio incited Walton's wrath this week when he ignored Walton's ruling and tried to go "beyond the scope of direct" during the cross-examination of Andy Pettitte.
According to Scarcella, Attansio was questioning Pettitte about a specific Clemens pitching performance that took place in 1999. Attansio wanted to delve into whether "Clemens was so depressed and beaten up then that he would start taking drugs to perform better." Prosecutor Steve Durham objected that this went beyond the scope of direct. Walton sustained the objection.
Attanasio then asked Pettitte whether he had ever seen Clemens "broken and beaten" after a game. This ticked Walton off: “I’m getting sick and tired of making rulings and counsel not listening to my rulings." Walton reminded Attanasio "that the defense does not have a right to build its case during the government’s pitch to jurors."
That's preposterous of course. Every good defense attorney tries to make his case during cross-examination, and Attanasio was allowed to ask other questions that technically went beyond the scope of direct. For example, Attanasio elicited Pettitte's key testimony that Clemens had never appeared to be pitching on steroids. I haven't read the transcripts yet, but it is unclear to me how far out of the strike zone the additional questioning strayed.
As any experienced litigator knows, courts are all over the map on the scope of cross-examination. Most federal judges allow a relatively expansive cross for reasons of judicial economy. Why make the defense call a witness to the stand in its own case, when you can save time by questioning the witness on cross? But a federal judge's ruling on whether to allow narrow or open-ended cross is virtually unassailable on appeal.
Attanasio did what most good defense attorneys would do in this situation. He ignored (sub silentio) a dubious ruling from Judge Walton and attempted to make the same point through a slightly altered question. That will work with many judges who aren't paying close attention, but it didn't phase Judge Walton.
Judge Walton has many fine qualities. He is intelligent, fair, and couragoeus. But he tends toward rigidity.
Thursday, May 3, 2012
Two weeks ago Judge Kimba Wood of the Southern District of New York dismissed the indictment in one of the sillier prosecutions brought in that court in recent years. See article here and opinion here - Download Opinion. Julian P. Heicklen, an 80 year-old retired professor, was charged with jury tampering (18 U.S.C. 1503) for distributing at the courthouse steps pamphlets of the Fully Informed Jury Association ("FIJA") that advocated jury nullification.
The pamphlet stated, in part: "You may choose to vote to acquit, even when the evidence proves that the defendant 'did it,' if your conscience so dictates." It also suggested that jurors may choose to be less than candid when asked questions during jury selection about their ability to follow the law as instructed by the judge. It is "your moral choice," the pamphlet stated, whether to "give answers that are likely to get you excused from serving, or say whatever it takes to be selected, so you can do your part to see that justice is served."
Jury nullification, as commonly understood, goes only one way. It allows jurors to ignore their oaths and acquit a defendant even if they are convinced that her guilt has been proven beyond a reasonable doubt. The potential effect of Heicklen's pamphleteering -- if it were to have any, which I question -- would be acquittals (or hung juries) in cases that otherwise would have resulted in jury verdicts of guilty.
The prosecutors in the Southern District were understandably upset. Heicklen was in a sense treading on their turf -- both the courthouse and the law. The prosecutors reacted aggressively, investigating by using an undercover agent and indicting based on an apparently unclear statute and in a bedrock area of First Amendment protection. In court, a prosecutor called Heicklen's advocacy "a significant and important threat to our judicial system."
Rather than the crucial decision to prosecute being made by independent, disinterested prosecutors, as it should always be, here it was made and carried out by the very prosecutors who were in a practical sense themselves the aggrieved parties or "victims." It was their cases -- their convictions -- that Heicklen arguably put in jeopardy by suggesting that jurors might still acquit even if they believed the defendant had been proven guilty beyond a reasonable doubt. The Southern District prosecutors were too conflicted and too involved to be allowed to make the decision whether to prosecute Heicklen (and they were too conflicted and too involved to make a reasoned, dispassionate and intelligent decision). The conflict here was not the potential or hypothetical conflict that prosecutors often argue should disqualify defense counsel, but an actual one. If the prosecutors felt Heicklen should have been prosecuted, they should have referred the ultimate decision to the Department of Justice in Washington. (While I do not know definitively that the Southern District prosecutors did not, if they had, I would have expected that the case would have been prosecuted by Central DOJ lawyers.)
There is an obvious imbalance in the criminal justice system. One litigant, the prosecutor, may charge the opposing litigant with perjury, the litigant's lawyer with obstruction and the litigant's advocate with jury tampering. The other litigant, the defendant (and his counsel), can only howl about agents who lie and prosecutors who secure convictions and jail sentences by concealing evidence. The power of one litigant to protect his case (or cases) by charging one seeking to undermine it (or them) is a drastic one that should be used with care and extreme caution. Here, prosecutorial discretion went awry.
Judge Wood's decision was calm, deliberate, and thorough, considering statutory construction, legislative history, judicial rulings and constitutional implications, and not, at least directly, criticizing the prosecution. Granting the defendant's pre-trial motion to dismiss under Fed. R. Crim. P. 12(b) on the grounds that the facts did not state an offense, she ruled that the statute was limited to advocacy relating to a specific case, not a general philosophy, as here. Although Judge Wood ultimately relied on a plain language analysis and did not explicitly rule on the First Amendment issue, she indicated that Heicklen's conduct was constitutionally protected free speech.
The case represents governmental overreaching in a sensitive free speech area. Perhaps if the decision whether to prosecute were made at Central DOJ, it would have been different, and the Office of the United States Attorney for the Southern District of New York, a highly respected and effective office, would have been spared an embarrassing defeat (and Mr. Heicklen spared a prosecution, although I suspect he rather enjoyed it).
The ultimate result may be that FIJA now has a license (in the form of a district court decision) to distribute literature suggesting nullification on the steps of federal courthouses, or nearby, throughout the nation. (Judge Wood did recognize that reasonable restrictions on such distribution under other laws may apply.)
Wednesday, May 2, 2012
Amanda Bronstad, NLJ, Guilty pleas to bribing overseas officials
Mike Scarcella, BLT Blog, In Gulf Spill Probe, DOJ Charges Former BP Engineer with Obstruction
Mathew Huisman, BLT Blog, After Three-Decade Run, D.C. Boutique Janis, Schuelke & Wechsler Dissolves
Jesse J. Holland, Google (AP), Ray of hope for imprisoned ex-Gov. Ryan's appeal
Sara Randazzo, Am Law Daily, Manhattan D.A. Launches Criminal Probe of Ex-Dewey Chair Davis; Firm Opens Internal Inquiry (registration required)
Karen Sloan, NLJ, Baltimore looks to Justice Department for its next dean
Mark Touhy, Paul Enzinna, & Lauren Cury, Corporate Counsel, An In-House Counsel Corporate Corruption Playbook
Sue Reisinger, Corporate Counsel, law.com, Will Wal-Mart Regret Not Disclosing Its Bribery Investigation Sooner?
AP, Washington Post, Ex-aide to John Edwards takes the witness stand against the former presidential candidate (hat tip to Ivan Dominguez)
Tuesday, May 1, 2012
In an ironic twist, the New York County (Manhattan) District Attorney's Office is investigating the recently-deposed chairman of Dewey LeBouef, the firm that still carries the name of Thomas Dewey, the near-president who rose to national prominence as a gangbusting nonpolitical Manhattan District Attorney.
The investigation, apparently based on facts brought to the District Attorney's attention by disgruntled partners as the firm teeters on the verge of extinction, concerns whether the former chairman, Steven H. Davis, committed financial improprieties. One area of investigation reportedly is whether Davis misled investors, presumably insurance companies and/or banks, about the firm's financial condition, see here, perhaps involving its commitments to highly-compensated partners, many lateral hires. American Lawyer last month announced that it was revising the figures it published based on the firm's report of its finances since those numbers differed from what the firm reported to the media. The firm defended its numbers, claiming that it used different methodologies at different times.
Certainly, different financial reports made at different times using different methodologies for different purposes may reasonably be different. And, even giving false figures to American Lawyer may not be criminal (I hesitate to state so definitively in this day of overcriminalization of law and overreaching by law enforcement). However, false statements to lenders or investors, who potentially will incur severe losses, because of the firm's inability to pay its debts, is a less certain matter.
The firm has mounted its own internal investigation -- by two of its partners. While I have no reason to believe that the investigation will be less than thorough and fair (and will likely save considerable money), the firm might have more prudently hired independent investigators invulnerable to accusations of conflict of interest, if only for public relations purposes. Of course, if the firm dissolves, any internal investigation may fall by the wayside.
Monday, April 30, 2012
In United States v. VandeBrake, (opinion- Download 111390P) the Eighth Circuit in a 2-1 opinion affirmed a 48-month sentence in an anti-trust case. The trial court had "varied upward from the advisory guidelines range based primarily upon VandeBrake's lack of remorse and the court's policy disagreement with United States Sentencing Guidelines Manual (U.S.S.G.) § 2R1.1." The trial court rejected, after giving notice to the parties, a binding plea agreement which called for a sentence of 19 months. Defendant-appellant argued that imposing "the longest sentence ever imposed in an antitrust case" was unwarranted here in comparison to the other case that received this same high sentence. The Appellate court affirmed the decision, but there's a concurring opinion and also a dissent.
The concurring opinion "disassociate[s itself] from the district court's comments about economic success and status, race, heritage, and religion." Chief Judge Riley writes - "I consider those comments inappropriate and not a proper reason for supporting any sentence."
The dissent by Circuit Judge Beam states in the opening paragraph - "even a multi-millionaire businessman has the right to be sentenced under the rule of law, especially rules recently put in place by the Supreme Court. Rich persons, poor persons and persons at all other economic strata should expect no less." The dissent states "the sentencing court's bald assumption that it has deferential discretion to substantially vary from all guidelines on policy grounds is reversible error." Judge Beam states:
"My research reveals that there were only a few hundred offenders sentenced for committing antitrust violations between FYs 1996 and 2011. The statistics also demonstrate that, over a period of 15 years, VandeBrake was the only antitrust offender sentenced above the guidelines range. Indeed, out of some 230 offenders The preliminary data for FY 2011 indicates that one antitrust offender was sentenced above the guidelines via an upward variance. Since VandeBrake was sentenced under § 2R1.1 since FY 1997, 83 were sentenced within the guidelines range and 146 were sentenced below the guidelines range. Similarly, since FY 1996, of the 288 offenders sentenced with an antitrust violation being the "primary offense," 95 were sentenced within the guidelines range and 192 were sentenced below the guidelines range." (Footnotes omitted)
Will DOJ join defense counsel on the same side in sending this case higher? They should. As noted here, Professor Berman looks at another white collar case with a high sentence. He states "I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes." As "ministers of justice" DOJ should support the defense if they are to continue their argument that sentences in white collar cases should remain within the guidelines.
Sunday, April 29, 2012
Here are ten basic observations regarding criminal discovery. They send a loud message that the proposed Senator Lisa Mukowski (Alaska) (along with Senators Inouye, Hutchinson, Begich and Akaka) "Fairness in Disclosure of Evidence Act" legislation is needed to codify the holding in Brady and add teeth to making certain that defendants receive a fair trial.
Ten Basic Premises:
- Most prosecutors play by the rules.
- One of the rules is you have to give up Brady material.
- Brady is going to be 50 years old in 2013.
- The ethics rules require prosecutors to give up exculpatory material.
- Some prosecutors have no clue what Brady material really is.
- In some cases prosecutors can’t tell if something is favorable to the defense because they don’t know what the defense will be presenting.
- Discovery in national security cases, terrorism, and cases where someone will get hurt needs to be treated differently.
- The chances of prosecutors being caught if they fail to give up Brady material is slim.
- If Brady material is not given or given late, most courts will find it to be harmless error.
- The chances of a prosecutor being disciplined for not giving up exculpatory material is slim.