Wednesday, August 27, 2014
Article About Former Penn State President Raises Issues Concerning Independent Investigative Reports and Role of Corporate Counsel
The New York Times Magazine several weeks ago published a lengthy, largely sympathetic article about Graham Spanier, the former Penn State president (Sokolove, "The Shadow of the Valley"), see here, who is awaiting trial on charges of perjury and other crimes in connection with the Pennsylvania grand jury investigation of his alleged complicity or nonfeasance concerning the actions of now-convicted (and affirmed on appeal) former assistant football coach Jerry Sandusky.
The article rather gently criticized the Freeh report, commissioned by the university, as I too did (see here), and asserts that it "probably led to [Spanier's] indictment." Commissioning an independent investigative report -- generally either by a former prosecutor or judge, or a large law firm -- is the de rigueur response of institutions or corporations accused of wrongdoing. An independent investigative report, especially by a respected authority, has the weight of apparent impartiality and fairness and thus the appearance of accuracy. However, the investigative report -- frequently done with no input from the accused or presumed wrongdoers (since, fearful of prosecution, they choose not to be interviewed) -- is often based on an incomplete investigation. Further, since the investigator is expected to reach conclusions and not leave unanswered questions, but unlike a prosecutor may not be required to have those conclusions tested by an adversary in an open forum, such investigations, like the Freeh investigation, are often based on probability, and sometimes even speculation, more than hard evidence. Lastly, the "independent" report, like the report concerning Gov. Christopher Christie's alleged involvement in Bridgegate, may be less than independent.
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The article also discusses an interesting pretrial motion in Spanier's case concerning a question that had puzzled me since the Penn State indictments were announced over two years ago -- what was Penn State's counsel doing in the grand jury? Sub judice for six months is a motion for dismissal of the indictment and other relief related to the role of the Penn State general counsel ("GC") who appeared in the grand jury with Spanier, and also earlier with two other officials who were indicted, Tim Curley, the former athletic director, and Gary Schultz, a vice president.
According to the submitted motions (see here , here and here ), largely supported by transcripts and affidavits, the GC appeared before the grand jury with Spanier (and also separately with Curley and Schultz) and Spanier referred to her as his counsel (as also did Curley and Schultz). According to what has been stated, neither she, who had previously told the supervising judge -- in the presence of the prosecutor but not Spanier -- that she represented only Penn State, nor the prosecutor corrected Spanier. Nor did the judge who advised Spanier of his right to confer with counsel advise Spanier that the GC was actually not representing him or had a potential conflict.
Later, after Spanier's grand jury testimony, according to the defense motion, the GC -- represented by Penn State outside counsel -- was called to testify before the grand jury. Curley and Schultz -- both of whom had by then been charged -- objected in writing to the GC's revealing what they asserted were her privileged attorney-client communications with them. Spanier apparently was not notified of the GC's grand jury appearance and therefore submitted no objection.
Prior to the GC's testimony, Penn State's outside counsel asked the court essentially to rule on those objections and determine whether the GC was deemed to have had an attorney-client relationship with the individuals, as they claimed, before Penn State decided whether to waive its privilege (if any) as to the confidentiality of the conversations. Upon the prosecutor's representation "that he would put the matter of her representation on hold" and not "address . . . conversations she had with Schultz and Curley about [their] testimony," the judge chose not to rule at that time on the issue of representation, which he noted "perhaps" also concerned Spanier, and allowed her to testify, as limited by the prosecutor's carve-out.
Nonetheless, despite the specific carve-out to conversations with Schultz and Curley analogous to those she had with Spanier and the judge's mention that the issue might also apply to Spanier, the prosecutor questioned the GC about her conversations with Spanier in preparation for his testimony. Her testimony was reportedly harmful to Spanier (see here). At no time did the GC raise the issue of whether her communications with Spanier were privileged.
Whether the motion will lead to dismissal, suppression of Spanier's testimony or preclusion or limitation of the GC's testimony, or none of the above, will be determined, presumably soon, by the judge. Whatever the court's ruling(s), I have little hesitation in saying that is not how things should be done by corporate or institutional counsel. At the least, even if the GC were, as she no doubt believed, representing the university and not the individuals, in my opinion, the GC (and also the prosecutor and the judge) had an obligation to make clear to Spanier (and Schultz and Curley) that the GC was not their counsel. Additionally, the GC had, in my view, an obligation to make clear to Spanier that the confidentiality of his communications with her could be waived by the university if it (and not he) later chose to do so. Further, the GC, once she was called to testify before the grand jury, had in my opinion an obligation to notify Spanier that she might be questioned as to her conversations with him in order to give him the opportunity to argue that they were privileged. And, lastly, the GC had, I believe, an obligation to ask for a judicial ruling when the prosecutor went beyond at least the spirit of the limit set by the judge and sought from her testimony about her communications with Spanier.
Monday, June 2, 2014
Second Circuit Reverses Convictions Due to Prosecutorial Misconduct and Exclusion of Good-Faith Evidence
The Second Circuit Court of Appeals, which issues complete reversals in only about five percent of the criminal cases it hears, last week in an opinion by Judge Jed S. Rakoff (sitting by designation) reversed the trial conviction of two individuals and a corporation for environmental crimes involving asbestos removal, and ordered a new trial. United States v. Certified Environmental Services, Inc., et al. (see here). The reversal was based on the denial of a fair trial due cumulatively to the exclusion of evidence of good faith to demonstrate the defendants' lack of intent (an issue not discussed here) and prosecutorial misconduct in improper "bolstering" during the opening and closing arguments. The Court denied that part of the defendants' appeal based on Brady v. Maryland.
The decision does not concern any novel legal grounds. Perhaps most significant in the white-collar area is its detailed discussion of the proper and improper use by prosecutors of the cooperation agreements their witnesses commonly enter into with the government. Since many, probably most, white-collar cases involve cooperating government witnesses, prosecutorial introduction of and comments on cooperation agreements frequently occur in white-collar trials. Here, the prosecutor improperly bolstered the witnesses' testimony on numerous occasions, both in the opening and closing arguments, by referring directly and indirectly to the self-serving language that prosecutors routinely place in the cooperation agreements they draft to the effect that the witnesses are obligated to tell the truth. Prosecutors and defense attorneys would do well to review the opinion to determine when and how the government may disclose and use the truth-telling requirement language of cooperation agreements during testimony and in argument.
The opinion also excuses, but does not condone, the improper failure of the government to turn over handwritten notes by a testifying agent which were discovered in the later examination of another agent and belatedly revealed to the defense. The notes should have been revealed earlier, says the Court, not only since they included evidence favorable to the defense, but also pursuant to Fed. R. Crim. Pro. 16(a)(1)(B)(ii), a discovery rule, and 18 U.S.C. 3500, the Jencks Act. However, since the notes were, however belatedly, turned over and the defense had an opportunity to review them, examine the later-testifying agent about their content, and recall the earlier witness if it chose, and since their timely disclosure would not have changed the verdict, in any case there was no Brady violation. The opinion thus demonstrates that late provision of Brady (or Rule 16 or Jencks) by the government during trial will virtually never be grounds for reversal, at least not in the Second Circuit.
Wednesday, May 21, 2014
Two New York State legislators have proposed the creation of a state commission on prosecutorial misconduct to review and investigate complaints of prosecutorial misconduct and to discipline prosecutors who have been found to have acted improperly. See here.
The proposed commission would, it is said, be the first in the nation of its kind. It will be modeled upon New York's Commission on Judicial Conduct, which investigates allegations of misconduct by judges and, if misconduct is found, may discipline a judge by public admonition, censure or removal from the bench.
Virtually every state (but not the federal government) has a commission on judicial conduct and these commissions, it is generally agreed, have had a positive effect in limiting judicial misconduct, removing unfit judges who had committed serious misconduct and increasing public confidence in and awareness of the workings of the court system. (I note that I am a past chair of New York's Commission.) There is, I believe, no good reason that there should not be an analogous agency to review instances of alleged prosecutorial misconduct, sanction offending prosecutors, and remove the most serious offenders from their positions. Indeed, there are stronger reasons for a commission concerning prosecutorial misconduct than for one concerning judicial misconduct. Much of the most serious prosecutorial misconduct, such as concealing exculpatory material and suborning perjury, occurs in the investigative and preparatory stages of a case and is hidden from the view of judges, defense attorneys, and the public and thus not detectable and reviewable by a court. Almost all judicial misconduct, on the other hand, occurs on the bench in public view, is recorded and observed by lawyers and the public, and is readily reviewable by appellate courts.
With rare exception, see here, prosecutorial misconduct has gone unpunished by prosecutorial offices, bar disciplinary committees and judicial authorities. Although grievance committees have authority over the improprieties of prosecutors as much as other lawyers, they have historically shown little interest in sanctioning prosecutorial misconduct. See, e.g., Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685 (2006); Yaroshefsky, Wrongful Convictions: It is Time to Take Prosecution Discipline Seriously, 8 D.C. L. Rev. 275 (2004). Similarly, judges, even when they reverse a conviction due to egregious prosecutorial misconduct, almost always conceal the prosecutor's identity and rarely refer the prosecutor for professional discipline. And, prosecutorial offices themselves often defend on appeal and thus ratify even serious misconduct of line prosecutors, and fail to sanction even those prosecutors whose serious misconduct they concede. See, Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined By Their Offices or the Bar: Three Case Studies That Prove That Assumption Wrong, 80 Fordham L. Rev. 537 (2011).
Further, potentially criminal misconduct by judges may be investigated and prosecuted by the District Attorney, an agency wholly independent from the judiciary. However, except in the extremely rare instances where a special prosecutor is appointed, potentially criminal misconduct by prosecutors generally may only be investigated or prosecuted by the very same prosecutorial office that committed that misconduct, which in almost all instances will be hesitant to prosecute one of its own and embarrass the office.
Additionally, there is a stark imbalance in the adversarial criminal justice system where one adversary -- the prosecutor -- may criminally charge the other adversary -- the defense attorney -- when he tampered with evidence or suborned perjury, but where the defense attorney who believes the prosecutor committed such criminal acts may only make a shout in the wilderness by a futile complaint to an overprotective disciplinary agency with no criminal prosecution power. A commission on prosecutorial conduct will not wholly right this imbalance, but will tilt it in the right direction.
Wednesday, September 11, 2013
A so-far publicly unidentified attorney in the lobbying group at Dickstein Shapiro reportedly sent emails to members of the House Committee on Government Reform asking them not to question Jonathan Silver, a government employee and prospective witness and Dickstein client. Specifically, the attorney requested, "If possible, please do not direct questions to Jonathan Silver. He's a client of my firm," adding a smiley face emoticon symbol. See here, here and here. The emails were sharply criticized by committee chair Darrell Issa (R-Calif.), who, displaying a copy but charitably blacking out the sender's name, demanded an explanation from Silver's counsel why "we shouldn't refer this to the American Bar Association." (The ABA, of course, does not hear ethics complaints against individual lawyers.) The committee's ranking Democrat, Elijah Cummings, joined in expressing his dismay, saying the requests seemed "clearly out of bounds."
Although the attorney (I suspect someone known to the Congresspersons, perhaps a former House staffer) appears to have demonstrated extraordinarily bad judgment, I question whether her conduct was unethical. Lobbyists are allowed to privately ask Representatives to vote on matters of crucial importance, far more important often than whether a government employee will be asked questions by a committee. I do not find an ex parte attempt to influence questioning at a hearing worse than a similar attempt to influence a vote. Such conduct would ordinarily be unethical, however, if directed toward a judge or prosecutor or if it violated a rule governing House committee conduct.
When I last appeared with a client before a House committee hearing, the chair threatened him with contempt for having, quite appropriately, asserted his Fifth Amendment right to refuse to answer questions. That threat, more shockingly to me, was repeated in private by Congressional staff lawyers, including the then chief counsel for the House of Representatives. I, therefore, am somewhat amused by the self-righteousness of the Congressmen here.
Monday, June 24, 2013
In what should be a surprise to no one, the Wall Street Journal editorial page today launched an attack on James Comey, President Obama's nominee to be the next FBI Director. The primary offenses? Comey's objection to the Bush Administration's illegal warrantless wiretapping and Comey's appointment of Patrick Fitzgerald as Special Counsel to investigate the Valerie Plame leak. The editorial is here. More commentary on this in the next few days.
Coming soon: Professor Podgor's analysis of the Second Circuit's opinion afffirming Raj Rajaratnam's conviction for insider trading violations.
Wednesday, June 5, 2013
FBI Special Agent Reginald Reyes' affidavit supporting DOJ's search warrant application for Fox News Reporter James Rosen's Google email account was ordered unsealed in November 2011. But it wasn't actually unsealed by the DC U.S. District Court's staff until late May of 2013. In other words, the affidavit was only unsealed several days after AG Holder testified that, "[w]ith regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy." Once the affidavit and search warrant application were unsealed, it became clear that Holder's testimony was inacurrate, as he had personally authorized the search warrant application. See here for yesterday's post on this issue.
DC Chief Judge Royce Lamberth is not happy about his staff's failure to unseal the affidavit and related documents. Here is Chief Judge Royce Lamberth's 5-23-2013 Order expressing his unhappiness.
Tuesday, June 4, 2013
“Well, I would say this. With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.” Attorney General Eric Holder testifying under oath before the House Judiciary Committee on May 15, 2013.
"For the reasons set forth below, I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to SUBJECT ACCOUNT, are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. [Section] 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator to which the materials relate." FBI Special Agent Reginald B. Reyes' May 28, 2010, Affidavit in Support of Search Warrant Application for Fox News Chief Washington Correspondent James Rosen's Google email account. The warrant was authorized by Attorney General Holder.
Note than in addition to identifying "the Reporter" as a probable aider, abettor and/or criminal co-conspirator, the affidavit explains that the Department of Justice is not bound by the Privacy Protection Act, otherwise prohibiting warrants for First Amendment work product, precisely because "the Reporter" was "suspected of committing the crime [18 U.S.C. Section 793(d)] under investigation."
There is no doubt that AG Holder gave false testimony to House Members under oath. He is an idiot if he did so intentionally, and he isn't an idiot. What should Holder have done to fix this mess? Corrected the record, of course. In the immortal words of Richard Nixon, "that would have been the easy thing to do."
Holder should have said: "Dear Representatives Goodlatte and Sensenbrenner. I screwed up. My testimony to you is now inoperative. I forgot that I authorized this affidavit, which clearly identifies a 'Reporter' as somebody under investigation for a crime. I did not intentionally try to deceive you. My statement was careless and overbroad. Please accept my apologies."
But the Attorney General apparently cannot not bring himself to do anything as straightforward as that. Instead he spends days sending out spinmeisters, most recently, and regrettably, Deputy Assistant AG Peter Kadzik, as reported here by Sari Horwitz in today's Washington Post.
How sad. Can you imagine anything like this happending under Attorney General Griffin Bell? Bell, a genuine protector of our civil liberties, most likely would have nixed the supboena in the first place. But if Bell had authorized it, he never would have shied away from the ensuing controversy or hidden behind his DOJ underlings.
Mr. Holder has received his fair share of undeserved, demagogic criticism from the kooky right. He deserves what he's getting now.
Here is a copy of the Reyes Affidavit.
Thursday, April 11, 2013
An administrative judge for the Merit Systems Protection Board has overturned the DOJ internal decision finding reckless misconduct for violating Brady obligations by two prosecutors of Senator Ted Stevens, Joseph Bottini and James Goeke, and ordering their suspensions. See here.
The administrative judge ruled that DOJ had violated its own disciplinary procedures which require a rank-and-file DOJ attorney in the Professional Misconduct Review Unit to review OPR findings and determine whether misconduct had occurred. The career attorney who reviewed the OPR findings, Terrence Berg (now a federal district judge in Michigan), decided in favor of the prosecutors, but his ruling was reviewed and reversed by his superiors, who found that misconduct had occurred and suspensions were appropriate. Review and reversal by the superiors, said the administrative judge, was improper procedurally, and the rank-and file attorney's decision was non-reviewable and final.
I lack sufficient familiarity with administrative law to opine whether this decision is wrong (although Prof. Bennett L. Gershman has made a strong case that it is). See here. I recognize that prosecutors, like those they prosecute, are entitled to due process. However, procedural infirmities aside, the actions of the prosecutors were clear enough and serious enough to warrant on the merits a finding of misconduct and a suspension. See here.
I find it ironic that DOJ's finding of misconduct was (according to the administrative judge) based on DOJ's own procedural misconduct. More seriously, however, I find extremely troubling the notion that a DOJ prosecutor's misconduct should be finally determined by a fellow career DOJ prosecutor. Defense lawyers, for instance, are not entitled to have their alleged misconduct weighed by a fellow defense lawyer.
A prosecutor's alleged misconduct ideally should be determined by the appropriate state bar disciplinary committee, not a fellow prosecutor (or fellow prosecutors). Of course, bar disciplinary committees, as several commentators have pointed out, have been extraordinarily hesitant to discipline prosecutors, especially with respect to Brady violations.
DOJ has the right to appeal to the three-judge Merit Systems Protection Board. It will be interesting to see if it does.
Tuesday, February 26, 2013
In Caldwell v. Cablevision, 2013 N.Y. Slip Op. 00783, the New York Court of Appeals two weeks ago unanimously affirmed a trip-and-fall civil defendant's verdict in which an emergency room physician subpoenaed by the defense as a fact witness was paid $10,000 for one hour of testimony to verify an entry he made in the "history" section of the hospital records. That note read that the plaintiff had "tripped over [her] dog while walking in the rain," seemingly contradicting the plaintiff's claim that she tripped because of an unfilled trench dug by the defendant.
The court was "troubled" by what was clearly an exorbitant fee paid to a witness for minimal testimony. The relevant statute provided that a witness was entitled to a fee of $15 per day and $.23 per mile travel, but the court wrote it was not improper to pay a witness "reasonable" compensation beyond those amounts for attending, testifying and preparing. The court noted that a witness, however, could not be paid based on the outcome of the litigation.
The court, disturbed by what it called a "disproportionate fee for a short amount of time" and realizing that an excessive payment tended to influence witnesses to testify favorably for the party that paid them, also stated "[a] line must be drawn." However, it not only failed to draw that line, but did not set forth any criteria for when a payment to a witness becomes a bribe. It did hold that the trial court should have tailored a specific jury instruction for the situation, but found the failure to do so was harmless error.
Initially, I thought the court's opinion might provide some limited protection to a New York criminal defense lawyer to offer a witness in a state case a substantial payment to overcome the typical witness reluctance to testify against the prosecution. After a moment's reflection, however, I concluded that such protection was illusory. A criminal defense lawyer who pays a fact witness $10,000 for an hour of testimony is likely to face indictment for bribery. What is acceptable in civil cases is often not acceptable in criminal cases, especially if one's adversary has the power to prosecute. Further, what is acceptable conduct by a prosecutor in criminal cases is often not acceptable if done by a defense lawyer.
Prosecutors routinely induce testimony from witnesses by offering "something of value" greater than money -- a witness' freedom from incarceration, something a defense lawyer obviously cannot offer. While one federal appellate court shook the foundations of federal prosecution offices by holding that the government could not induce testimony by offering such leniency to a witness, United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), that case was swiftly and soundly overruled en banc, 165 F.3d 1302 (10th Cir. 1999).
In white collar and other cases, the defense often is hampered by its inability to induce a witness to testify by offering something of value for fear that the defendant or her attorney will be prosecuted for bribing a witness. While the defendant has a Sixth Amendment right to subpoena and call fact witnesses (and to pay witness fees and the "reasonable value of lost time"), that right is considerably limited by the witness' Fifth Amendment right to assert his privilege against self-incrimination and decline to testify. Further, defense attorneys lack a mechanism (such as a grand jury) to test what an unamenable witness will state under oath.
One instance where witnesses are often necessary for a viable defense in white-collar cases is where the defendant claims she acted with a lack of criminal intent, often evidenced by a direction or assurance by superiors of the propriety of her conduct or her openness and expressions to her co-workers. Witnesses who might substantiate the defendant's good faith who were somewhat involved in, or just near, the questioned activity, generally at the direction of prudent counsel will often refuse to testify for fear they will be prosecuted. This foreclosure of potentially favorable testimony is sometimes reinforced by prosecution sabre-rattling, often disingenuous, that the witness himself is a potential defendant. Such a declaration almost always will frighten the witness from testifying and deter a judge from granting the witness immunity over prosecutorial objection. But see here.
Allowing white-collar defendants to "buy" (honest) testimony from a reluctant witness -- that is, to pay the witness to give up his constitutional right not to testify -- conceivably theoretically acceptable under the Caldwell case -- might somewhat level the playing field in which the prosecutor to a considerable extent controls who will testify for either side. However, until a court or legislature "draws a line" that clearly allows it, such a payment is fraught with danger to the defendant and the defense lawyer.
Thursday, January 24, 2013
It is hard to argue against the idea of criminal forfeiture; fairness demands that one convicted of a crime give up his ill-gotten gains. A recent article in the New York Times seemed to give its full unstinting approval to federal asset forfeiture (see here).
However, asset forfeiture, aside from its several unfair procedural aspects, has its downsides. It has to an extent diverted prosecutorial resources from investigation and prosecution of more serious cases to "sitting duck" targets involved in lucrative but arguably harmless violations of law, such as offshore gambling enterprises.
And, primarily because of pre-trial restraints, it has, with the 5-4 imprimatur of the Supreme Court in Caplin & Drysdale v. United States, 491 U.S. 617 (1989), and United States v. Monsanto, 491 U.S. 600 (1989), turned the presumption of innocence on its head and allowed pre-trial restraint of funds to leave many defendants without sufficient funds to hire experienced, able (and often expensive) counsel of choice. While court-appointed counsel assigned to represent those now-indigent defendants are generally competent or better than competent, they often lack the experience, resources, aggressiveness and time to provide a first-rate defense. Thus, asset forfeiture often tilts the board in the prosecutor's favor.
Prosecutors are obviously aware that broad pretrial restraint of assets may skew the results of a litigation by preventing the defendant from hiring top-notch counsel. While I do not believe that prosecutors often seek pre-trial restraint for that reason, eliminating experienced and able counsel is an obvious byproduct of many such restraints.
Even in New York State, where the Legislature has, alone among the 50 states, specifically provided for expenditures of seized funds to pay reasonable legal fees, some prosecutors, notably the New York County District Attorney, have taken a strong position, "play[ing] hardball" in the words of a senior forfeiture prosecutor, against release of seized funds for legal fees to private counsel. In New York County, a defendant seeking release of restrained funds for private counsel must initially fill out a sworn 40-page detailed financial questionnaire to demonstrate her lack of access to funds for legal fees. On the other hand, a defendant in New York County who seeks assigned counsel paid for by public funds needs only to say he cannot afford counsel, and such a statement is rarely questioned.
The District Attorney in New York and many places elsewhere receives a portion of forfeited funds; thus, he has an extra incentive to fight the release of funds for private counsel, as well as to prosecute those with substantial assets. An objective observer might question whether the crucial decision whether to prosecute should be made by one with a financial interest in the proceeds of the prosecution. Compare Tumey v. Ohio, 273 U.S. 510 (1927) (conviction at trial by magistrate/mayor where municipality retains part of fine proceeds violates due process).
Tuesday, August 28, 2012
In an editorial published July 16, 2012 entitled "Trial Judge To Appeals Court: Review Me" (see here), the New York Times, in the wake of Judge John Kane's opinion discussed here last week (see here), rightly criticized standard plea waivers in federal court, especially those that preclude appeals based on attorney ineffectiveness or prosecutorial misconduct. The editorial, however, in alleging that in order to induce pleas "[p]rosecutors regularly overcharge defendants with a more serious crime than what actually occurred" was largely off-the-mark, as Paul J. Fishman, the respected United States Attorney for the District of New Jersey, claimed in a letter to the Times published on July 26, 2012 (see here).
Federal prosecutors do not, in my view, "regularly" overcharge defendants "with a more serious crime than what actually occurred," at least in white-collar cases (although they often pile on unnecessary if legally justifiable multiple charges). As Mr. Fishman noted, DOJ has directed prosecutors to charge only provable crimes, and in my experience that directive is generally followed. In many districts, notably with respect to white collar cases the Southern District of New York, guilty pleas are to the indicted charges or top count, and rarely only to less serious counts. Since defendants are unlikely to plead guilty to unprovable charges, that practice indicates that the charging decisions are consistent with the law and the facts.
Indeed, there is little incentive for prosecutors to overcharge in order to induce pleas since defense lawyers are aware that the Sentencing Guidelines suggest that the sentencing judge should in any case consider all relevant conduct committed by the defendant, no matter to what crime the defendant has pleaded, and prevailing statutes (and often a conviction of multiple charges) virtually always provide the courts more than ample sentencing leeway. Unlike many state statutory schemes, most federal statutes in the white collar area -- mail and wire fraud, for instance -- are generic and not scaled by degrees according to the amounts of money involved, such as state statutes concerning grand larceny in different degrees. The Sentencing Guidelines levels, but not the statutory crimes, are determined primarily by the dollar loss figure.
This is not to say that most defendants do not face considerable institutional pressure to plead guilty (and, if possible, "cooperate" with the prosecution). Defendants, depending on from which direction one looks, are either "punished" for going to trial or "rewarded" for pleading guilty by the Guidelines provisions for a near-automatic two or three level decrease for pleading (acceptance of responsibility, U.S.S.G. 3E1.1) and a near-automatic two level increase for a convicted defendant who has testified in her defense (obstruction of justice, U.S.S.G. 3C1.1). Additionally, a defendant who pleads guilty usually receives a more generous interpretation of the Guidelines by the prosecutor, probation officer and the court, and a lessened fervor from the prosecution and more lenient attitude by the judge. And, of course, the sweet carrot of a U.S.S.G. 5K1.1 letter for those who cooperate with the government is often, perhaps too often, the difference between a severe sentence and a lenient one.
Tuesday, August 7, 2012
And there it is. Right on page 24 of the Second Circuit's opinion in U.S. V. Mahaffy, posted here yesterday. "None of this [the government's various rationales for withholding exculpatory and/or impeaching SEC transcripts] excuses the government's misconduct. The transcripts contained substantial Brady material, much of which was easily identified as such." In fact, an SEC attorney, cross-designated as a Special AUSA in the first squawk-box trial, identified some of the material as potential Brady to his trial team superiors before the first trial commenced.
Here are some interesting dates. Jury selection in the squawk-box retrial began on March 30, 2009. The government rested on April 14, 2009, as did the defense. The jury returned its verdict on April 22. Ted Stevens had been found guilty in Washington DC in October 2008 and, as Judge Sullivan has noted, "[d]uring the course of the five-week jury trial and for several months following the trial there were serious allegations and confirmed instances of prosecutorial misconduct that called into question the integrity of the criminal proceedings against Senator Stevens." Attorney General Holder moved to set aside the Ted Stevens verdict and dismiss the indictment with prejudice due to gross Brady-related misconduct on April 1, 2009. Judge Sullivan granted the government's motion on April 7, 2009. According to the Mahaffy opinion, the second set of squawk-box prosecutors deliberately chose not to revisit any of the disclosure decisions made by the first trial team. New York prosecutors must not read the DC papers.They did not start to sift through the SEC transcripts until after the second trial concluded.
Thursday, July 12, 2012
Last month, in a thorough 64-page opinion, Southern District of New York Judge William Pauley ordered a new trial for three of four defendants convicted in what he described as "the largest tax fraud prosecution in U.S. history" because a juror, Catherine M. Conrad, had lied her way into being accepted as a juror. United States v. Daugerdas, et al., 09 Cr. 581.
There appears to be little question Ms. Conrad, a suspended lawyer, connived to make herself in her own word "marketable" so that she could have "an interesting trial experience" as a juror. In voir dire, she lied about her education, claiming the highest level she had reached was a B.A. when in fact she had a law degree. She concealed not only her membership in and suspension from the bar but her own criminal convictions -- for shoplifting, DWI, contempt and aggravated harassment -- as well as her husband's extensive criminal history, which included a seven-year prison stay. She made, according to the court, a "calculated, criminal decision to get on the jury."
At a post-trial hearing at which she was granted use immunity, Conrad stated that if the truth were known, "defense counsel would be wild to have me on the jury." In fact, however, Conrad turned out to be extremely biased against the defendants. In a congratulatory letter she sent to the prosecutors after the trial, she said she was "privileged to observe la creme de la creme -- KUDOS to you and your team." In that letter, she mentioned that she had fought against but ultimately had "thrown[n] in the towel" on a not guilty verdict on one of the counts concerning defendant David Parse. At the hearing, she testified that "most attorneys" are "career criminals." Two of the four convicted defendants were practicing lawyers; Parse was a non-practicing lawyer.
Judge Pauley, clearly upset by the need to retry a case which took three months, strongly urged the government to prosecute Conrad. Perhaps concerned that the government might feel that prosecuting her would be inconsistent with its opposition to a new trial, he added, "The prospect of preserving a tainted jury verdict should not temper the Government's resolve to call Conrad to account for her egregious conduct." Any prosecution of Conrad, however, obviously would have Kastigar obstacles because of her immunity.
The judge, following the Supreme Court's decision in McDonough Power v. Greenwood, 464 U.S. 548 (1984), found that in order to obtain a new trial, the moving party must "first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause" (emphasis added). Apparently, even in a criminal case, the mere existence of a juror who deliberately lied her way onto the jury may not be sufficient to require a new trial. See United States v. Martha Stewart, 433 F.3d 273 (2d Cir. 2006). The McDonough test appears to be "If the juror hypothetically had answered truthfully, would her truthful answers have led to a challenge for cause?" Thus, unknown facts that might have affected her fitness to serve as a juror which would not in any case have been revealed by accurate responses to voir dire questioning presumably should not be considered.
In a lengthy analysis, mingling those hypothetical answers to questions asked during jury selection with, somewhat questionably, facts learned and impressions formed at the post-verdict hearing -- including Conrad's discovered dishonesty, bias and her animus to lawyers -- the court found that the McDonough criteria had been amply met. Accordingly, it ordered a new trial for all the convicted defendants -- except Parse, who the court ruled had "waived" his claim for a new trial since his attorneys knew or "with a modicum of diligence would have known" that Conrad's statements in jury selection were false and misleading and failed to disclose that knowledge to the court.
Judge Pauley felt that Parse's lawyers, the firm of Brune and Richard, knew or at least suspected (or alternatively should have known) that Conrad was an imposter certainly by the start of jury deliberations, but made a decision not to reveal their belief or suspicion to the court. The court was apparently affected by what seems to be a carefully-crafted, literally true but arguably misleading, statement in the lawyers' new trial motion that they were "prompted" by disclosure of Conrad's post-verdict letter to investigate and conduct records searches "in the wake of Conrad's . . . post-verdict letter." The court found that the motion contained "significant factual misstatements" and that its "clear implication" was to give the false impression that Parse's lawyers had no idea of Conrad's true identity until well after the verdict. In fact, as demonstrated in a later letter from the firm, in the firm's e-mails during trial, which were ordered by the court to be produced, and in testimony by the lawyers at a hearing, the firm apparently had concerns about and suspicion of Conrad's deception, initially at voir dire and later, after further record search revelations, during the judge's charge to the jury. A most graphic example was one lawyer's e-mail during the charge, "Jesus, I do think it's her."
The court believed that the attorneys' submission was designed to foreclose any government claim that their pre-verdict knowledge doomed their post-verdict motion on the grounds that they failed to act with "due diligence." The court found unconvincing the attorneys' claim that notwithstanding the similarities between the juror and the suspended lawyer discovered by electronic research -- name, home town, father's occupation, approximate age -- and the juror's use of previously unmentioned legal terms (such as respondeat superior) in jury notes she authored, the attorneys did not believe until after her letter to the government was disclosed that juror Conrad and suspended lawyer Conrad were the same person.
The court thus found that Parse's attorneys had "actionable intelligence" that Conrad was an imposter and that they had been required, but failed, to undertake "swift action" to bring the matter to the court's attention. The court apparently felt that the attorneys had attempted to "sandbag" it by remaining silent about the defect and only raising the issue when and if the trial did not conclude favorably, in effect providing them and their client with an "insurance policy against an unfavorable verdict." By his attorneys' conduct, the court ruled, Parse waived any error.
It may well be that during the trial the attorneys chose not to report their suspicions because they felt that Conrad, who appeared from web research to be potentially anti-government, would be a favorable juror for the defense, and they did not want to lose her. It may also be that, whatever the objective evidence that the juror and the suspended lawyer were one and the same might look like with hindsight, they actually thought that the juror and the suspended lawyer were different people since, as they claimed, they could not believe that the juror -- a lawyer -- would blatantly lie. Under either alternative, the court found, they had an obligation to share their knowledge with the court.
Some may argue that an attorney, in her duty of zealous representation of a client, may remain silent if she learns during jury selection that a juror misrepresented herself. Judge Pauley's contrary view is clear: "An attorney's duty to inform the court about suggested juror misconduct trumps all other professional obligations, including those owed a client." I agree. See New York Rules of Professional Conduct 3.3(b).
Some may also question whether Parse, the client, should suffer from his lawyer's purported misconduct or lack of diligence (of which he had no apparent knowledge). While generally a client is bound by a lawyer's strategic decision, and cannot cry foul if it backfires, Parse did suffer the same denial of a fair jury as the other defendants. Nonetheless, the court held that his attorneys' failure to report waived any objection by Parse, but granted new trials to the other three convicted defendants (whose lawyers apparently had no knowledge of Conrad's deception).
There are several ironies in this case: Parse, about whom, according to Conrad's letter to the prosecutors, the jurors "had qualms," is the only one whose conviction stands. Further, his attorneys were the ones responsible for investigating and presenting the motions which succeeded in a new trial for the others (who joined the motion), but not for him. And, lastly, if Conrad had told the truth at voir dire and revealed her suspension from the bar and her and her husband's criminal record, she undoubtedly would have been successfully challenged -- whether by cause or peremptory -- on the motion of the prosecution she so strongly favored, and not be the defense she despised.
Tuesday, May 29, 2012
I have not read the 672-page Department of Justice report finding that federal prosecutors Joseph W. Bottini and James A. Goelke acted recklessly -- but not intentionally -- in withholding exculpatory information from Sen. Ted Stevens at his trial for corruption. Nor have I read the 525-page Scheulke/Shields report commissioned by Judge Emmet Sullivan that concluded to the contrary that their misconduct was intentional. I therefore am hesitant to say that the DOJ finding was wrong.
I have little hesitancy, however, in criticizing the lenient punishment meted out by DOJ. Bottini was suspended without pay for 40 days, Goelke for 15. Even if, as the DOJ report contends, they did not act intentionally but did act with "reckless disregard" of their constitutional obligations to provide exculpatory evidence, the slap on the wrist of a loss of net income from $5,000 to $12,000 respectively (along with a compensating two to seven weeks of extra vacation) appears inappropriate.
The determined "reckless" conduct was, among other things, the failure to disclose evidence concerning Stevens' willingness to pay for the renovations in question, and a contractor's expectation that the cost of the renovations would be added to Stevens' bill, evidence central to the case. Its disclosure might well have prevented Stevens' conviction, loss of reputation and Senate seat, and (but for his death in a plane crash) probable imprisonment.
If a truck driver causes serious personal injury by reckless driving, is there any doubt he would be fired? The injury to Senator Stevens was serious; the punishment was far too gentle.
* * *
In a way, the finding of reckless misconduct reflects worse on DOJ than a finding of intentional misconduct. According to the DOJ report, these were not rogue prosecutors deliberately concealing evidence. Rather, they were seasoned and respectable prosecutors who recklessly ignored a most basic constitutional obligation, not to conceal exculpatory evidence. The finding leads to serious questions about DOJ's training and professionalism and leads me to wonder (again) how many serious Brady violations by other seasoned and respectable prosecutors go undetected.
Friday, May 25, 2012
The Statement of Williams Connolly LLP, through Rob Cary, Brendan Sullivan, and Simon Latcovich, truly speaks for itself. We will have more to come on the DOJ's actions.
Thursday, May 24, 2012
The Department of Justice yesterday announced the indictment of four Georgia residents for tax fraud. The press release (see here) stated, as is required by the ABA Fair Trial and Free Press Standards, ". . . the defendants are presumed innocent until proven guilty beyond a reasonable doubt." Nonetheless, the headline read "Georgia Tax Cheats Indicted for Conspiring to Defraud the United States," certainly not affording these defendants the presumption of innocence to which the DOJ release paid lip service.
The indictment was announced by the new Assistant Attorney General of the Tax Division, Kathryn Keneally, until recently my able and respected colleague in the New York City criminal defense bar. My assumption is that AAG Keneally neither wrote nor reviewed the headline.
Tuesday, February 21, 2012
[All of the facts in this post come from the 11th Circuit opinion in United States v. Ignasiak, publicly available on the 11th Circuit's website (here) or from PACER.]
Arthur Jordan used a counterfeit badge and posed as an on-duty U.S. Marshal in order to carry firearms onto commercial airplanes while on personal travel. He did this nine times. According to the United States Court of Appeals for the 11th Circuit, Jordan's "criminal conduct" resulted in "multiple violations" of 18 U.S.C. Sections 912 and 1001 and 49 U.S.C. Section 46505, and "could have been charged as felonies."
But Jordan wasn't even charged with a misdemeanor. He got pretrial diversion from the South Dakota U.S. Attorney's Office, paid $2,000.00, and agreed never to carry firearms on an airplane again, except while on official business.
Jordan is not your everyday citizen. He is none other than Dr. Arthur Jordan, who goes around the country testifying as an expert for the U.S. Government in Health Care Fraud/Controlled Substances Act prosecutions against pain management physicians. He charges $300 per hour and, during his November 2008 testimony in U.S. v. Ignasiak, claimed to have earned around $30,000.00 as a government expert up to that point in time. Dr. Jordan was the key government expert against Robert Ignasiak in the latter's criminal jury trial, testifying for almost three days. (Roy Black was lead defense counsel during the trial.)
But there's much more to the story. Given its reversal, and its finding that the evidence was sufficient, the 11th Circuit declined to address the other issues raised by Ignasiak on appeal--except for one.
You see, none of the Ignasiak defense attorneys knew during the trial about Dr. Jordan's "criminal conduct" or his South Dakota pretrial diversion agreement. Several months after the Ignasiak guilty verdicts, the government filed the Government's In Camera Notice to the Court ("Notice"). The Notice, and an accompanying affidavit, were filed under seal. This post-trial Notice revealed Dr. Jordan's conduct and his South Dakota pretrial diversion deal to Judge Lacey Collier and Robert Ignasiak's defense team for the first time. The government requested that the Notice be kept under seal, in order to protect Dr. Jordan's privacy interests.
In the Notice, the government also argued that its prior failure to disclose the Arthur Jordan impeachment material did not violate Brady/Giglio, because the Ignasiak prosecutor had not personally known about Dr. Jordan's conduct, or the South Dakota pretrial diversion agreement, during the Ignasiak trial.
Judge Collier summarily granted the government's request to seal the Notice, despite defense opposition. The defense filed a New Trial Motion based on the alleged Brady/Giglio violations. Much of that litigation was conducted under seal. A few documents are publicly available, but they are heavily redacted. The defense lost its New Trial Motion as well.
The 11th Circuit did not decide whether the government's failure to discover and disclose Dr. Jordan's conduct, before or during trial, violated Brady/Giglio. But it did order the government's Notice unsealed and, through its opinion, disclosed Dr. Jordan's "criminal conduct" and pretrial diversion deal to the bench and bar. This was an admirable public service.
The 11th Circuit was clearly displeased by DOJ's effort to shield Dr. Jordan. As the Court succinctly put it:
"Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan’s history, it is actually the government that most persuasively highlights the value in unsealing the Notice. Indeed, should the Notice remain sealed, the significant likelihood is that in the next CSA prosecution in which Dr. Jordan testifies as an expert, both the prosecuting AUSA and the defense counsel will again be unaware of the highly relevant impeachment evidence contained in the Notice. And in that case, as in this one, should the truth ever come to light, the government could again point to its own ignorance and claim immunity from Brady error. Stated this way, we would have expected the government to condemn, rather than condone, such a problematic outcome."
In light of the 11th Circuit's opinion, several questions present themselves.
1. Who Protected Jordan? In other words, why did he get what looks on its face like a very favorable pretrial diversion deal from the South Dakota U.S. Attorney's Office? Who approved the deal and who within DOJ was informed about it? How long did the diversionary period last? Was it unusually short and, if so, why?
2. Who Revealed or Failed to Reveal Jordan's Conduct and Pretrial Diversion Deal? The Ignasiak prosecution team, from the Northern District of Florida, purportedly did not know about Dr. Jordan's "criminal conduct" or his South Dakota pretrial diversion agreement until after trial. Why not? The South Dakota U.S. Attorney's Office is part of the DOJ and the U.S. Attorney network, and Dr. Jordan is fairly well known as a government expert in pain clinic cases. It is difficult to imagine that South Dakota prosecutors were not aware of Dr. Jordan's ongoing role as a government expert. Assuming that they were aware, why didn't this raise any red flags, and who, if anyone, made the decision to quarantine this obvious Brady/Giglio material? If this is a cover-up, how high did it go? Was Jordan's pretrial diversion completed before Ignasiak's trial? Was it still in force when Jordan traveled, as he surely must have, to Pensacola for trial prep? Wouldn't Jordan need permission from pretrial services in order to travel to Pensacola, and wouldn't he have to tell pretrial service the purpose of his trip? Did the South Dakota U.S. Attorney's Office know of the trip and its purpose? If so, why didn't it notify N.D. Florida?
3. Why Did N.D. Florida Try to Seal and Suppress Dr. Jordan's "Criminal Conduct" and Pretrial Diversion Deal? As the 11th Circuit correctly noted, the government's effort to seal its own Notice had the effect of shielding Dr. Jordan's misconduct from other federal prosecutorial offices. Even assuming, as the government argued in Ignasiak, that an AUSA in one federal district has no obligation to obtain Brady/Giglio from a fellow AUSA in another federal district, what possible justification is there for the active effort to suppress Brady/Giglio material that occurred post-trial in Ignasiak?
4. What Subsequent Prosecutions Have Been Sullied by the Ignasiak Brady/Giglio Suppression? Did the Florida AUSAs ask Dr. Jordan about any upcoming trials Jordan may have had on tap with other U.S. Attorney Offices? If so, did the N.D. Florida make an attempt to tell the other offices about Dr. Jordan? It unquestionably had an ethical duty to do so. What has been done since the Ignasiak opinion to look into this issue?
5. Does the DOJ Really Believe that Brady/Giglio Material Known Only to a Federal Prosecutor in South Dakota is not Brady/Giglio Material in any Other Federal District? What duty does DOJ impose upon its federal prosecutors to tell prosecutors in other federal districts about Brady/Giglio problems with testifying agents and expert witnesses? If there is no policy in this area, why not?
6. How Could This Happen? More to the point, how could this happen post-Stevens? The government filed its Notice in Ignasiak six months after DOJ moved to dismiss the Stevens Indictment with prejudice and six months after Judge Emmet Sullivan ordered his own investigation of Brady/Giglio violations. Apparently AG Holder's message fell on some deaf ears. And I guess the N.D. Florida never thought to re-examine its position, after the DOJ issued, to much fanfare, the Ogden Memo in early 2010. Even now, after the 11th Circuit's pointed comments, the government has not voluntarily moved to unseal the Notice, or the motions and responses from the New Trial Motion, in the Ignasiak case. Why not?
It is extremely difficult for me to believe that either AG Eric Holder or Assistant AG Lanny Breuer knew about the Arthur Jordan issue prior to last month's Ignasiak opinion. And therein lies the problem. Even an Attorney General and Criminal Division Chief publicly committed to rooting out Brady/Giglio abuses could not prevent the Arthur Jordan debacle.
What is the real lesson here? That prosecutors can't be trusted to make their own judgments about what is or is not exculpatory and material under Brady/Giglio. Disclosure must be the norm.
DOJ has done everything in its power to prevent meaningful statutory reform of Fed.R.Crim.App.16 and federal criminal discovery procedures. DOJ says that it can be trusted to prevent Brady/Giglio violations from occurring. The Ted Stevens prosecution is Exhibit 1 in the argument against DOJ. Now we have Exhibit 2. His name is Dr. Arthur Jordan.
Thursday, February 9, 2012
Here is Judge Emmet Sullivan's Memorandum Opinion ordering unredacted release of Hank Schuelke's Report on prosecutorial misconduct in the Ted Stevens prosecution. Any comments or objections to the report by the attorneys involved are due by March 8 and will be published along with the Report.
Sunday, January 22, 2012
Attorney Jack Fernandez (Zuckerman Spaeder LLP) has an interesting Essay for the the ABA's White Collar Book entitled, An Essay Concerning the Indictment of Lawyers for Their Legal Advice. It is here - Download 3533275_1 DOCX (3) (3)
Wednesday, November 30, 2011
Judge Emmet Sullivan's Order in relation to the Stevens case summarizing some of the findings of the special report by Hank Schuelke and William Shields was reported last week by my editor Ellen Podgor here and discussed in depth by my co-editor Solomon Wisenberg here. I add some thoughts on Brady violations in general.
First, as Mr. Wisenberg points out, few Brady violations are intentional. Although there are some rogue prosecutors who deliberately conceal what they know is information which would be beneficial to the defendant, the vast majority of Brady violators are well-meaning prosecutors who in their focus on their proof do not realize that certain information would be helpful to the defense.
Second, Brady is counterintuitive. Requiring a participant in any contest to provide information to his adversary which will decrease his chance of winning goes against the grain. Expecting a prosecutor who believes that such information is merely a means of enabling a guilty person to get off (since the material in question presumably has not changed the prosecutor's mind that the defendant is guilty beyond a reasonable doubt) to provide it to his opponent is even more problematical.
Third, Brady violations are not uncommon, although few are revealed. Since Brady violations are done in secret and the concealed evidence is unlikely ever to reach the light of day, most are undetectable. As Judge Sullivan's Order notes, many of the Brady violations in the Stevens case would never have been revealed but for the exhaustive investigation by the court's appointed investigators. And, this case, it should be remembered, involved a U.S. Senator represented by Brendan Sullivan, a superb, highly-respected and aggressive lawyer, and an outstanding law firm with considerable resources, not an overwhelmed court-appointed attorney with limited time and resources.
Fourth, as Mr. Wisenberg notes, prosecutors are rarely punished for Brady violations. Most judges either ignore the violations or gently chide the prosecutors. DOJ internal reviews of alleged prosecutorial misconduct are viewed by defense lawyers and many judges as whitewashes. Disciplinary committees historically have treated errant prosecutors gently in the few cases of prosecutorial misconduct of which they become aware, and prosecutions of prosecutors for obstruction of justice and the like for withholding evidence are virtually nonexistent.
Fifth, the legal standards for Brady disclosure are confused. Most prosecutors and judges think of Brady material as "exculpatory" material, that is, something that might have a significant impact on the determination of guilt, a standard that, to most prosecutors, eliminates all but a very few items of evidence. In fact, what should be disclosed is evidence "favorable" to the accused, a much broader category than "exculpatory." Additionally, many prosecutors believe that the standard used by reviewing courts to determine whether non-disclosure of Brady evidence requires reversal -- whether it is "material" -- is the proper standard to be used by a trial prosecutor in the initial disclose-or-not determination. "Materiality" in this context is essentially a "harmless error" standard of review used to decide whether the withheld evidence mandates reversal, not the standard to determine whether to disclose in the first instance. Just as a prosecutor's argument in summation may be improper, even if unlikely to result in reversal, concealment from the defense of favorable evidence is improper, even if not so serious that it later will be found "material" by an appellate court.
In sum, under current conditions, Brady just doesn't work. More explicit guidelines, as recently published by DOJ, will help, as would standing court orders making a violation contemptuous (as has seemingly not happened in Stevens) and stronger punishments for violations by judges, prosecutorial agencies, and disciplinary committees (and perhaps also a statute criminalizing deliberate and knowing Brady violations). But, in the end, the only real solution to Brady violations may just be, as Mr. Wisenberg suggests, open discovery in criminal cases.