Friday, May 24, 2013
Most witnesses with potential criminal exposure who are called to testify before Congressional hearings take the stand, with their lawyers behind them, and repeat the incantation "I respectfully decline to answer the question based on my Fifth Amendment privilege against self-incrimination," or some variation. Occasionally, a witness insists on testifying in spite of a danger that his answers might incriminate him or, if in conflict with other witnesses' statements or other evidence, might lead to a perjury or obstruction prosecution. One notable example is Roger Clemens, who chose to testify and, although ultimately acquitted, was indicted and lost millions of dollars in legal fees and endorsements.
Lois Lerner, an embattled Internal Revenue Service official called to testify before a Congressional hearing earlier this week, tried to have her cake and eat it too. She made a brief opening statement declaring her innocence ("I have not done anything wrong. I have not broken any laws. I have not violated any I.R.S. rules and regulations, and I have not provided false information to this or any other Congressional committee."). She then invoked her constitutional right not to testify. Committee Chair Daryl Issa (R-Calif.) and other Congressmen claimed that, by her opening declaration, she had waived her privilege and therefore was required to answer the Committee's questions.
Some lawyers have criticized Ms. Lerner's counsel, William Taylor III, one of the most highly-respected criminal defense lawyers in the nation, for allowing Ms. Lerner to make an opening statement, claiming that at the very least that she placed herself at risk of waiving her constitutional privilege against self-incrimination. See here. Although the area of waiver of privilege is indeed murky, with cases going in different directions, I believe Ms. Lerner did not waive her right to silence by her unspecific denials. As Miranda v. Arizona itself says, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." 384 U.S. 436, 473-4, fn. 44.
Nonetheless, courts sometimes bend over backwards to "punish" what appears to them as gamesmanship. Many years ago, a New York City Congressman, Mario Biaggi, in response to a "leak" disclosing he had invoked his privilege in the grand jury and refused to answer questions, declared publicly that he had cooperated fully and answered all the jury's questions -- a statement which was far from true -- and that he had instructed his attorneys to seek release of his testimony to prove it. His attorneys moved for disclosure of testimony, no doubt expecting the motion to be denied. (The United States Attorney also so moved.) The district court, however, as later affirmed by the Court of Appeals, held that Biaggi had waived the privilege and ordered the release of his entire transcript. In re Biaggi, 478 F.2d 489 (2d Cir. 1973).
Even though I believe that ultimately it will not be determined (or probably even litigated) that Ms. Lerner waived her privilege against self-incrimination, I wonder whether her brief declaration of innocence -- by itself unlikely to persuade anyone -- was worth the risk, however slight. My guess -- pure guess -- is that the decision to allow her to make her brief opening statement was a compromise made between a careful lawyer and a client, like many I have represented, who adamantly desired to testify. Of course, professional discretion would prevent Mr. Taylor from shifting any blame.
Friday, May 17, 2013
Tuesday, May 14, 2013
The Treasury Inspector General for Tax Administration Office of Audit report and its highlights tell the story of how "Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention." This Report issued on May 14, 2013 has been the source of significant media attention and President Obama has stated that the Reports findings are "intolerable and inexcusable." (see CNN here). The Report calls for several recommendations, including "develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities."
A couple of observations: 1) It is good to see that this Audit produced this evidence and that it was not overlooked; 2) It is also good to see that the Attorney General is not taking this finding lightly; and 3) Most imoprtantly the President is not going to tolerate this activity.
Politics do not belong in the agencies of our government. Whether it be the DOJ, SEC, or IRS - it is important that when politics gets infused in discretionary decisions, someone immediately puts a stop to this happening. Internal compliance programs are important in the corporate world, maybe we need more compliance programs and monitoring within the government world.
New York City Bar - Second Annual White Collar Crime Institute - here
ABA Securities Fraud 2013, Oct. 24-25, New Orleans - here
Georgia's Institute of Continuing Legal Education (ICLE) - International Business Crimes: Foreign Corrupt Practgices Act (FCPA), Criminal Antitrust and Export Controls, June 6 - Download Program Brochure
AALS Midyear Conference on Criminal Justice, June 9-12, San Diego - here (There's a panel on Culpability and White Collar Crime)
22nd Annual National Seminar on Federal Sentencing Guidelines, May 22-24, 2013 - Orlando, Florida - here
DOJ Press Release, Parker Drilling Company Resolves FCPA Investigation and Agrees to Pay $11.76 Million Penalty; Corporate Crime Reporter, Parker Drilling Gets FCPA Prosecution Deferred, to Pay $11.76 Million
Phil Willon, LATimes, Charges filed in San Bernardino airport corruption probe
Adam Kaufmann & Arthur Middlemiss Join Lewis Baach PLLC - see here
Prosecutors who have committed Brady violations, even those which have been later demonstrated to have resulted in wrongful convictions and lengthy terms of imprisonment for persons later proven innocent, are rarely prosecuted. Courts tend to find Brady violations inconsequential, prosecutor's offices generally defend or at the least refuse to acknowledge them, disciplinary committees overlook them, and defense lawyers, out of timidity and self-interest, rarely press for sanctions. One notable exception to this general disregard by institutions and the bar is DOJ's commendable effort, at the moment thwarted by a questionable administrative law decision, to sanction prosecutors in the Senator Ted Stevens trial (see here and here).
The State of Texas, whose criminal justice system is often disparaged by commentators and defense lawyers, recently took a giant step in holding prosecutors sanctionable for egregious Brady violations. A Texas judge, acting as a court of inquiry, under Texas law, after a hearing ordered the arrest of a current Texas state court judge, Ken Anderson, for contempt and withholding evidence from the court and defense attorneys when Anderson was a District Attorney prosecuting Michael Morton, who was recently demonstrated to be actually innocent for the murder of his wife for which he served 25 years of a life sentence. See here.
The inquiry judge, District Judge Louis Sturns, found probable cause to believe that Anderson had concealed two crucial pieces of evidence: a statement by Morton's three-year old son that Morton was not home at the time of the crime and a police report which revealed that an unknown suspicious man had been seen on several occasions stalking the Morton house.
For denying to the trial judge that there was exculpatory evidence and for failing to provide a full copy of a police report demanded by the judge, Anderson was charged with tampering with evidence, tampering with a government document, and contempt. The most serious charge, evidence tampering, carries a maximum prison term of ten years, far short of the 25 years Morton served.
Criminal prosecution of prosecutors for Brady violations has been to my knowledge totally or almost totally nonexistent. Thirty-five years ago I drafted a proposed New York State statute criminalizing intentional and knowing Brady violations. As expected, the proposal went nowhere. The statute, as I wrote it, had such strict scienter requirements that the crime was virtually unprovable. It was written more to stress to prosecutors the seriousness of such misconduct than to lead to actual prosecutions. The Anderson prosecution, if it occurs, may fill that function.