Monday, May 28, 2018
Guest Blogger - Josh Greenberg
Biggest-Ever Health Care Fraud Case Jeopardized By Prosecutors’ Failure To Implement A Taint Team After Seizing Documents From Defendant’s Personal Attorney, In Contrast To The Practices Advocated By Their Counterparts (And The President!) In The Analogous Case Of The Search Of The Office Of Michael Cohen
In the summer of 2016, Philip Esformes was indicted in the U.S. District Court for the Southern District of Florida for what the government describes as the biggest health care fraud case in U.S. history. The indictment alleges that Mr. Esformes ran a network of skilled nursing facilities and assisted living facilities that defrauded Medicare and Medicaid of $1 billion. Remarkably, after Mr. Esformes was indicted, the government did not create a taint team to review privileged documents seized from the office of one of his attorneys. The prosecution is in jeopardy as a result.
On the same day the indictment was filed, the prosecution team applied for a warrant to search an assisted living facility named in the indictment. Several cooperating witnesses had informed the prosecution team that Mr. Esformes’s personal attorney maintained his law office at that facility and did legal work for Mr. Esformes on matters relating to the allegations in the indictment. The application for the warrant did not disclose these facts. Moreover, the U.S. Attorney’s Manual imposes strict conditions on applications for warrants to search the offices of an attorney who, as with Mr. Esformes’s personal attorney, is a subject of an investigation. Before applying for such a warrant, federal prosecutors must both obtain “the express approval of the United States Attorney or pertinent Assistant Attorney General” and “consult with the Criminal Division.” The prosecutors in Mr. Esformes’s case, who are based in D.C., evidently did neither.
A magistrate judge issued the warrant without being told that the facility to be searched included an attorney’s office. One day after the indictment was filed, agents executed the warrant and seized over 170,000 pages of documents – including many privileged documents, a number of which addressed matters relating to the allegations in the indictment. By this point, even though Mr. Esformes’s Sixth Amendment right to counsel had attached, no taint attorney was assigned to the search. Instead, one of the agents was tasked with taking the lead in identifying and segregating potentially privileged documents. But the agent was not given the information needed to do so, such as the names of the attorneys and law firms defending Mr. Esformes. Of the documents the agents seized, only ten were put in a box marked “Taint.” The rest were put in 69 boxes – one of which was labeled “Carlton Fields,” the name of the law firm then defending Mr. Esformes – and given to the prosecutors. In addition, agents who executed the warrant remained or later became part of the prosecution team.
During the search, Marissel Descalzo, one of the attorneys from Carlton Fields, informed agents at the scene orally – and the lead prosecutor via email – that Mr. Esformes’s personal attorney represented Mr. Esformes, that the agents were seizing privileged materials, and that Mr. Esformes objected to these seizures. Whereas the lead prosecutor assured Ms. Descalzo that a taint team was in place, the same prosecutor began reviewing privileged documents in the 69 boxes on the next business day. The documents the lead prosecutor reviewed included notes and spreadsheets prepared at Ms. Descalzo’s request by a legal assistant for Mr. Esformes’s personal attorney. Later, despite learning that the notes and spreadsheets were privileged, the lead prosecutor, another prosecutor, and case agents from several different agencies questioned the legal assistant about those documents and learned the defense strategies reflected therein. The prosecutors decided not to notify either Mr. Esformes or the court of their review of the privileged documents or their interrogation of the legal assistant.
In April 2017, Mr. Esformes’s defense team – Roy Black, Howard Srebnick, and Jackie Perczek of Black Srebnick Kornspan & Stumpf and Ms. Descalzo, now of Tache, Bronis, Christianson and Descalzo – moved to dismiss the indictment or disqualify the prosecution team. A lengthy evidentiary hearing ended earlier this year and the motions are fully briefed.
The prosecution team’s approach in Mr. Esformes’s case stands in sharp contrast to the positions taken by the U.S. Attorney’s Office for the Southern District of New York (the “USAO-SDNY”) and by President Donald Trump in the case of Michael Cohen, the President’s personal attorney. Following the search of Mr. Cohen’s office, before any law enforcement official reviewed a single seized document, the USAO-SDNY sought the court’s permission to implement a “rigorous” taint team protocol, as is “common practice in th[at] District,” after Mr. Cohen sought a temporary restraining order. (This protocol is also the norm in other districts, including the Southern District of Florida.) Under the protocol, attorneys walled off from the prosecution team identify potentially privileged documents and “confer with counsel for the privilege holder” before sharing such documents with the prosecution team. To the extent that the privilege holder’s counsel objects, the taint team seeks a judicial determination as to privilege by submitting the documents under seal so that each side can present its arguments. A narrow exception allows ex parte review in “extraordinary cases” if “absolutely necessary,” such as where explaining the government’s position “would jeopardize a covert aspect of [an] investigation.” (Even under that exception, the privilege holder still receives judicial review. Mr. Esformes received no protection whatsoever.)
President Trump objected to a taint team, insisting that attorneys from the same office prosecuting Mr. Cohen cannot be trusted to decide which documents are potentially privileged and cannot fairly make such decisions. President Trump sought far greater protections, contending that his attorneys should decide which documents relating to him are withheld on the basis of privilege from the prosecution team. Ultimately, the court ruled that the USAO-SDNYs position was correct as a matter of law, but that it would appoint a former judge as a special master to avoid even an arguable appearance of bias given the politically charged nature of the case.
In Mr. Cohen’s case, recognizing the importance of protecting the attorney-client privilege even before an indictment, the USAO-SDNY sought to follow accepted taint team procedures rather than risk disqualification or dismissal in a potential future prosecution. The prosecution team in Mr. Esformes’s case, however, did not take such prophylactic measures when searching his personal attorney’s office after Mr. Esformes was indicted. Even if due to mere negligence, such exposure to privileged information – the very harm that a proper taint team prevents – cannot be undone. It is difficult to see how Mr. Esformes could have a fair trial against a prosecution team that learned his defense strategies long in advance. Courts have disqualified prosecutors who even inadvertently encountered far less significant privileged information. Insofar as the prosecutors recklessly or deliberately reviewed privileged materials that reveal his trial strategy, Mr. Esformes may also have a strong argument that his case should be dismissed. In the Eleventh Circuit, dismissing an indictment is appropriate where a Sixth Amendment violation caused “demonstrable prejudice.” United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir. 1987). That standard may be met when a post-indictment failure to establish a taint team results in prosecutors, and perhaps their supervisors as well, obtaining particularly sensitive privileged information without any judicial review.
Saturday, May 12, 2018
Here is Jonathan Turley's latest column for The Hill discussing the emerging "legal strategy" of Team Trump. It is clear that the hiring of Rudy Giuliani and Emmet Flood was part of a concerted effort to smear Team Mueller while preparing the public for Trump's invocation of Executive Privilege and/or his Fifth Amendment Privilege against self-incrimination. The new strategy buys time and kills two birds with one stone--both avoiding a Trump interview and allowing a sustained and withering attack to weaken Mueller. Like so much of the Trump approach, it uses the Clinton Playbook, the one employed by President Clinton at the urging of Dick Morris. Deny, delay, attack, weaken. Of course, Trump and his surrogates have been going after Mueller for awhile, but drafting Giuliani, a presumed legal heavyweight, was supposed to add stature, heft, and gravitas to the project. The problem was in the execution. It turns out Rudy Giuliani should change his name to Rusty Giuliani. He is rusty on the facts of his client's case, rusty on the law, and rusty on the ethical duties of an attorney. Virtually every one of his appearances has been marked by inaccuracies (factual and legal) and buffoonery. Rudy seems to be running on fumes and celebrity status. Here are just a few samples of his deft touch:
Mueller, the FBI, and the DOJ respect him, even though they are running a "garbage investigation" using "storm trooper tactics." (Do you think they still respect you?)
Presidential immunity from indictments and subpoenas was written right into the Constitution by the Framers. (This must be the long lost Alexander Hamilton Invisible Ink draft.)
There is definitely no campaign finance violation, because Trump reimbursed Cohen from personal funds. (The purpose of the payment, among other factors, must also be examined.)
Clinton was only questioned by Team Starr for 2.5 hours. (It was 4 hours. Not a huge point perhaps, but Rudy still had it wrong a week later. Does he have a researcher?)
Judge Ellis criticized the search of Michael Cohen's office. (Ellis did not mention the search at all.)
The President knew about the payments to Stormy Daniels. The President didn't know. I was talking about myself. I'm still learning the facts. Maybe I shouldn't be discussing privileged conversations I had with my client.
I make payments for my clients all the time without them knowing about it. (This presumably caused Greenberg Traurig to sever its relationship with Giuliani at the end of the week, with the law firm publicly denying that it engages in such conduct.)
The most disheartening thing about Rudy's performance has been his apparent refusal to sit down, learn the case, and refresh himself on the law.
Whatever the Grand Plan was supposed to be in wheeling Giuliani out, there is no Grand Plan involved in his performance to date.
Sunday, May 6, 2018
The leak and publication of 49 questions for President Trump, orally given to President Trump's lawyers by Robert Mueller's team and then transcribed by Jay Sekulow, has unquestionably damaged Team Mueller's reputation. Why? Many of the questions are incredibly broad, incredibly stupid, and/or incredibly intrusive forays into core functions of the Executive Branch. But whose questions were they? The original New York Times story indicated that the questions were revealed orally in a meeting between Team Trump and Team Muller and then transcribed by Team Trump. Next we were informed by other media sources that Sekulow was the scrivener and that the 49 questions may be more in the nature of a Team Trump moot court briefing book, based upon a smaller set of inquires/topics broached by Team Mueller. For example, the AP reported that a "person familiar with the matter, who insisted on anonymity to discuss ongoing negotiations, said Trump’s lawyers extrapolated a list of expected questions based on conversations with Mueller’s team. The questions contained in a document posted online by the Times on Monday night reflected questions that defense lawyers anticipated rather than verbatim queries that Mueller’s team provided, the person said." The subsequent clarifications have been all but forgotten on the Internet and cable news shows and it is still widely assumed that the 49 questions are a verbatim rendition of those directly relayed by Team Mueller to Team Trump.
But the difference between the two versions is significant. If these are the literal questions from Mueller's team, they reflect (in addition to the flaws noted above) a dangerously elastic view of criminal obstruction of justice. If they are mere briefing book questions, intended to prepare the President for every possible question Team Mueller may ask, they should be of much less concern to Team Trump and to observers attempting to fairly critique the Mueller operation. Finally, if these are briefing book questions that were deliberately leaked and packaged to the media by Team Trump as if they were Team Mueller's literal proposed interview questions for President Trump, this says something disturbing about the Trump legal operation.
Tuesday, April 24, 2018
The redacted version of the Comey Memos have now been released and do not on their face come close to establishing criminal obstruction of justice by Donald Trump. What they do show is a new President with no concept of how to appropriately interact with his condescending, schoolmarmish FBI Director.
There are conceivably four potential endeavors to obstruct justice referenced in the memos.
1. According to Comey's notes, the President asks Comey if he can see his way to "letting this go, to letting Flynn go," because, "Flynn is a good guy and has been through a lot." It was an inappropriate request, but it was not an order. Had it been an order, it would have been even more inappropriate, but still not a crime. The President has the constitutional authority to order an investigation closed.
2. The President also asks Comey to "lift the cloud" hanging over him by publicly confirming that the President is not under investigation. Comey had already volunteered to Trump at least twice that Trump was not under investigation. Comey declined the President's request to publicly "lift the cloud" and lectured him on the appropriate channels through which to make such a request. There was nothing wrong with the President's request and there would have been nothing wrong with Comey acceding to it.
3. After asking Comey to "lift the cloud" for the umpteenth time, Trump tells Comey, "I have been very loyal to you, very loyal, we had that thing you know." Comey believes this was a reference by Trump to their January 27, 2017 conversation in which Comey expressed his preference to remain on the job as FBI Director and Trump asked for and received a pledge of "honest loyalty" from Comey. In other words, Comey believes that Trump wanted Comey to "lift the cloud" hanging over Trump in return for Comey keeping his job. Assuming that Trump actually said this, it was not a crime. Trump has the constitutional authority to order an investigation closed. He has the authority to fire any non-civil service appointee for refusing to carry out such an order. Trump could have told Comey, "lift the cloud or I will fire you." Ergo, he can certainly suggest that Comey owed it to him to "lift the cloud."
4. Trump repeatedly told Comey that the Russian hooker story was false, because Trump did not stay overnight in Russia during the 2013 Miss Universe Pageant. Apparently Trump did stay overnight. Is this a false statement to a law enforcement officer by someone endeavoring to obstruct justice? The Government would have to prove that Trump actually made this statement knowing it was false and knowing that he was under criminal investigation. But Trump had been already been told by Comey, multiple times, that he was not under investigation. Thus, even assuming that Trump made the statement in question and intentionally lied (as opposed to misremembering), a prosecutor would have to show that Trump was endeavoring to obstruct a criminal investigation, despite having been told that there was no investigation.
If Comey's notes are accurate, the President was a boorish novice with no comprehension of long-accepted norms regarding acceptable interaction between the President and his FBI Director. That doesn't make Trump a criminal.
Thursday, December 14, 2017
With apologies to the memory of Robert Altman.
- FBI Deputy Director Andrew McCabe wouldn't know a conflict of interest if it jumped up and bit him in the butt. He had no business supervising the Clinton Email investigation or the Clinton Foundation investigation in any capacity whatsoever. Supervising those investigations after his wife's political campaign accepted a $600K plus donation from close Clinton ally Terry McAuliffe was a gross and obvious conflict of interest. Yet he persisted.
- McCabe did not recuse himself until after publication of a Wall Street Journal article detailing the McAuliffe donation. By that time, both investigations were closed. FBI Special Agents involved in the Clinton Foundation investigation were reportedly kept from pursuing certain avenues of investigation with McCabe's knowledge and/or participation.
- The Clinton email investigation and the Clinton Foundation investigation were both mishandled. Anybody even remotely familiar with how federal investigations work will tell you as much. You don't give limited use immunity to gain access to a witness's computer when you can get the same information through a search warrant. This is particularly true when the immunity grant impacts a related investigation--which it almost certainly did in this instance. You don't let a small army of the subject's cronies attend her formal law enforcement interview. You don't allow a witness in the investigation to attend the subject's interview under the guise that said witness is also the subject's attorney.
- The FBI's Peter Strzok should never have been assigned to the Russian/Trump Collusion investigation by Comey and McCabe in August 2016. By this time, the Clinton Email investigation was being harshly criticized by GOP front-runner Trump and other Republican hopefuls. You don't assign the FBI agent whose work is being attacked to investigate the very person who is leading the attack. Accordingly, Mueller should have removed Strzok as one of his first official acts. We now know that Strzok had a vitriolic hatred of all things Trump, which he freely exhibited during the course of the Russian/Trump Collusion investigation. It's not about Strzok's political views. Agents and prosecutors cannot be hired, passed over, or fired based on their political affiliation. It's about Strzok's ability to operate in an unbiased manner during the course of an investigation. To his credit, Mueller immediately fired Strzok upon learning ab0ut Strzok's incriminating texts. It now appears that McCabe almost certainly knew of Strzok's intemperate hatred of Trump before, or shortly after, Strzok was assigned to the Russian/Trump Collusion investigation. What a wonderful little stink bomb he left for Mueller.
- DAG Rod Rosenstein should order the DOJ to release the full contents of Bob Mueller's Conflicts Waiver, except for portions that must remain confidential to protect attorney-client confidences. The public has a right to know of any friendships that could potentially impact Mueller's work.
- Bob Mueller is an honorable man. He is also tone deaf and politically naïve. Mueller should have recognized that he and his team would be attacked by Trump World and put under a microscope. He should have taken greater care to assure himself that the team he assembled would not be subject to credible accusations of political bias. Special Counsels are hired in the first place to avoid conflicts of interest and the appearance of conflicts.
- Bob Mueller should not resign or be fired, because he has done nothing that would warrant resignation or firing. The calls for Mueller to quit or be sacked are coming for the most part from partisan ideological hacks. These are some of the same people falsely stating that Rosenstein is a liberal Democrat and a Mueller protégé. Rosenstein (my old friend and former colleague) is a mainstream conservative Republican and long-time play-it-by-the book professional. I guess that's not good enough for some people, who apparently want him to have a pin-up of Roy Moore in his bedroom.
- Bob Mueller should not demand the resignation of any staff members, based on our current state of knowledge. True, he should not have hired Andrew Weissman, who has more baggage than a Carnival Cruise ship, or Jeannie Rhee in the first place, due to the appearance of potential bias. But there is no evidence that they have let any biases affect their work.
- We don't need a Special Counsel to investigate Mueller or his people. A Special Counsel is for criminal investigations. Any credible claims of impropriety directed to Mueller or his team can and should be handled by DOJ's Office of Inspector General ("OIG").
- It is not enough to say that OIG is investigating the handling of the Clinton email investigation. We need to know more. Will OIG also look at the interplay between the Clinton Email Investigation and the Clinton Foundation investigation? Is OIG using its subpoena power? If not, why not?
Monday, November 13, 2017
Andrew McCarthy at National Review Online compares the aggressiveness of Special Counsel Bob Mueller's Russia collusion investigation to the disgraceful kid gloves DOJ-FBI treatment of Mrs. Clinton and her email server. He is right on all counts, but this is not Mueller's problem. Mueller is doing exactly what one would expect of a Special Counsel. History teaches us that a Special or Independent Counsel will get rolled if he does not establish, unequivocally and from the start, that he will not be trifled with, obstructed, or lied to. I'm not aware of anything that Mueller has done to date that is outside ethical boundaries. The real outrage, as I have said many times before, is that a Special Counsel was not appointed to investigate Mrs. Clinton. The governing federal regulation plainly called for it. Let's review.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
In Mrs. Clinton's case, the President's former Secretary of State, and the leading Democratic Party candidate for President, was credibly accused of mishandling classified documents on a private unauthorized email server and the President himself had communicated with her through that server. Even worse, during the investigation, the President improperly interfered by publicly declaring, on two separate occasions, that Mrs. Clinton did not intentionally engage in wrongdoing and did not harm national security. It is easy to imagine the furor that would have ensued if a Republican President had engaged in such conduct. The pressure to appoint a Special Counsel would have been relentless. It is easy to imagine, because that is exactly what happened with respect to President Trump.
So conservatives are understandably (and rightfully) outraged at the double standard, but, as with so much else, President Trump has primarily himself to blame. When you fire the FBI Director who is investigating members of your administration for unlawful collusion with Russia, and immediately brag to the Russian Ambassador that you fired him in order to get the Russia collusion investigation behind you, you are going to get a Special Counsel. It is yet another example of how President Trump, a political genius with a profound ignorance of basic American civics and governing norms, has stumbled into problem after problem. Kudos to Ty Cobb for limiting the damage for now.
None of this is Mueller's fault. He is doing the job we expect a competent Special Counsel to do.
Wednesday, November 8, 2017
Senator Lindsey Graham called over the weekend for a new Special Counsel to investigate the Fusion GPS/Steele Dossier affair and the Uranium One transaction. He has a point about Uranium One, but Fusion GPS is squarely within the scope of Special Counsel Bob Mueller's authority as set out in the Order appointing him. That Order explicitly authorizes Mueller to "conduct the investigation confirmed" by Saint Jim Comey in his March 20, 2017 testimony before the House Permanent Select Committee on Intelligence. The Comey-DOJ investigation was already considering the Steele Dossier as part of its work. Mueller is further authorized to investigate links and coordination between the Russian government and individuals associated with Donald Trump's campaign as well as "matters that arose" from said investigation. Clearly, the Steele Dossier was a matter that arose as part of the overall Russian collusion investigation and may have helped to instigate or prolong it. Finally, as part of the federal regulation governing Special Counsels, Mueller is authorized to investigate any effort to obstruct his investigation, which is a continuation of the original Comey-DOJ investigation. Assuming that the Steele Dossier contains deliberate falsehoods, and was given to the FBI by someone with knowledge of those falsehoods as part of a deliberate effort to obstruct the original DOJ investigation (by unfairly pointing the finger at Trump), this would also be within Mueller's bailiwick. Indeed, I assume that Mueller is already looking at the Steele Dossier as part of an obstruction of justice investigation. He would be derelict in his duty if he were not.
Any new Special Counsel for the Steele Dossier would simply be overlapping with Mueller and would need to hire a staff and get up to speed. I see no need for this, unless something about the Steele Dossier presents a conflict of interest for Mueller. Some commentators shave suggested that the FBI paid Steele for some of his work, or thought about doing so. If any of those agents are still on the investigative team, could it create a conflict? Perhaps, but that could be resolved by removing such agents from the investigation or from the Steele Dossier part of the investigation. And keep in mind that any Special Counsel will almost certainly have to rely on FBI Special Agents to conduct at least some of his/her work. If you think a desire to protect the Bureau automatically creates a conflict then even a new Special Counsel would face the potential for conflict.
Monday, October 30, 2017
The first thing to ask, if CNN's Friday night report is accurate, is who leaked? Because if the leak came from the government or court staff it is almost certainly an illegal violation of a sealed court order and/or grand jury proceedings. And if it came from the defense attorney of the party to be charged, who told him or her? The whole point of sealing something is so that the public doesn't know about it. All a courthouse staffer, moonlighting as media lookout, could have legitimately told the press is that "we saw so and so going into the court's chambers" or something along those lines.
Second, why would charges be sealed in the first place? Perhaps because the prosecution is afraid that someone will flee. That is the only legitimate reason I can think of to place an indictment under seal. If it was placed under seal to give government agents the opportunity for an early morning arrest it wouldn't surprise me one bit, given Andrew Weissman's dismal track record for hardball, heavy-handed tactics. (It will be interesting to find out someday just exactly what the government told a federal magistrate in order to get that no-knock warrant to search Paul Manafort's residence.)
Is it possible that the sealing was done in order to protect a defendant from having to spend the weekend (or at least one night) in DC jail? Unlikely. For defendants who do not turn themselves in by mid-morning in DC, the possibility of a night in jail is real. But if the prosecutors really cared about that, why not bring the charges on a weekday morning and allow the defendant to turn himself in the next day? This is done all the time.
Is it possible that the pending indictment report, true or false, is a deliberate ruse to see who will attempt to flee? In other words, does the government actually want someone to try to flee? After all, flight can be used as evidence of guilt in court. Unlikely, but anything is possible with Weissman in the number two slot.
We should find something out today. Here is Politico's excellent background piece by Darren Samuelsohn.
If there are any charges, expect them to be ancillary in nature. Look for false reporting violations or false statements to government agents. More to come.
The Indictment is out and we will try to get it up as soon as possible. It is obvious that the prosecutors did the right thing in allowing Paul Manafort and Rick Gates to turn themselves in and that, in all likelihood, one of the defense attorneys leaked the news to CNN. Grand jury secrecy rules do not apply to witnesses or to those who receive their information from witnesses.
Friday, December 2, 2016
Readers of this Blog are no doubt familiar with United States v. Reddy Annappareddy, the District of Maryland case in which a guilty verdict was overturned (and new trial granted) with the grudging, belated concurrence of government prosecutors, because the government presented false testimony to the jury. The indictment was then dismissed with prejudice, over government objection, due to the government's destruction of potentially relevant evidence and the trial court's finding of prosecutorial misconduct. All of this was the result of the tireless and brilliant work of Annappareddy's post-trial attorneys, Josh Greenberg and Mark Schamel of Womble Carlyle. See my prior posts here, here, here, here, and here. Since my last post, the government moved to withdraw its appeal, the Fourth Circuit granted the motion, and the mandate has issued.
Now, Josh Greenberg, who played a key role in devising and implementing the post-trial strategy, has decided to open his own shop, focusing on white collar criminal defense, civil litigation, and appeals. Congratulations to Josh. We wish him the best.
Wednesday, October 12, 2016
At Counsel’s Table: A Conversation with Henry W. (“Hank”) Asbill of Jones Day
Hank Asbill is a partner at Jones Day and widely recognized as one of the country’s best white collar criminal defense attorneys. In 2015, he was awarded the prestigious White Collar Defense Lawyer of the Year Award by the National Association of Criminal Defense Lawyers. Mr. Asbill’s most recent accomplishments include representing Virginia’s former governor Robert McDonnell in his battle against federal corruption charges. In Governor McDonnell’s case, Mr. Asbill and his team were able to devise and execute a winning strategy that ultimately resulted in the dismissal of all charges after the Supreme Court reversed Governor McDonnell’s convictions in an 8-0 opinion.
In this interview, we catch up with Mr. Asbill to talk about his career path, advice for young lawyers, and his thoughts on the McDonnell case.
Q: You have worked as a defense attorney for close to 40 years. What inspired you to work in criminal defense? And what other fields of law have you considered?
I am a child of the 60’s and have always questioned authority. Someone has to keep the government honest. And, I have always been interested in constitutional law. I also watched a lot of Perry Mason as a kid.
I never considered any other field of law. I knew I wanted to be a criminal defense lawyer before law school, and that never changed.
Q: Do you feel that the practice of law has changed in the forty years since you began practicing? If so, how?
It has changed substantially, and in terms of criminal defense, I feel it has been primarily for the worse.
The biggest change has been the decline of jury trials, which keep the system honest. There are far fewer jury trials today because of the enactment of sentencing guidelines in both federal and state systems, as well as the draconian push for mandatory minimums and lengthy sentences for all crimes. These changes have spawned many more pleas because the sentencing risk of losing at trial is so great.
I think the two biggest policy failures in the criminal justice system in my career have been the enactment of the sentencing guidelines and the “war on drugs.”
The alleged war has unfairly targeted the most vulnerable people in society, including minorities and the poor.
As for the Guidelines, I never thought that there was a serious sentencing disparity among judges that would justify the Guidelines in the first place. The Guidelines were promoted by the DOJ to give prosecutors much more control – to make sure that the only way out of a harsh sentence is a 5K1 motion by the government based on the defendant’s assistance in prosecuting others.
This 5K1 regime incentivizes lying by co-defendants and targets. The government does not give 5K1 credit for cooperation when it does not result in prosecution of others. On only one occasion have I had a client who gave honest answers that prevented the government from going down the wrong road and charging innocent people who still received 5K1 credit.
Q: Can you tell us a bit about your career path and how you got to where you are now?
I started as law clerk on the D.C. Court of Appeals. After that I practiced with a large firm, doing civil securities and antitrust litigation, before going to D.C.’s Public Defender Service for four years. I then started a small trial firm with a PDS colleague. We later added a civil trial lawyer, and grew the firm until we were at 9 or 10 people. I worked there for 23 years until I transitioned to Big Law. At that time we had to decide whether to renew a 15-year lease. The management of a small firm was becoming cumbersome, and the desires of the founding partners were diverging.
I was taking on more complicated cases and needed specific subject matter expertise, and more staff to help on projects.
I ultimately ended up choosing Jones Day for many reasons: its culture is unique; it is extraordinarily well-managed; the lawyers genuinely like and respect each other; the Firm has tremendous subject matter expertise; it has a terrific appellate group with many former Supreme Court or Circuit Court clerks who want to work on trial matters; and, there are many talented young lawyers here who have the temperament, talent, passion, and zeal to become great trial lawyers whom I’ve greatly enjoyed working with and mentoring. Lastly, we are given great latitude in terms of pro bono work, both with respect to the type of cases and the amount of pro bono work we can do.
Q: In contrast to many other prominent white collar criminal defense attorneys, you have never worked as a prosecutor. Do you think this background offers any advantages, or drawbacks, in your practice?
I believe being a defense lawyer for my entire career has been a major advantage. I often represent individuals and companies that want to fight, and that’s what I’ve specialized in my entire career.
There is a myth that you need to work as a prosecutor to be able to know how they think. I have interacted with enough prosecutors and have been friends and partners with enough former prosecutors over the years, that I know how they think. Besides, I have never wanted to put people in jail.
Some former prosecutors are able to successfully transition to the defense side. Some are not, and end up exclusively doing internal investigations and turning the results over to the government. That is not the work I prefer to do.
Also, I believe criminal defense attorneys are generally much better cross-examiners than prosecutors, because defendants rarely testify, and often do not put on a direct defense case. In contrast, prosecutors will generally be more experienced in direct examinations. Although both skills are very important, for criminal defense attorneys, the ability to do a good cross-examination is the more important of the two.
The main disadvantage of having never been a prosecutor is that you do not have the network of former AUSAs to access for business development. The prosecutors’ network is often much more active and cohesive than the defenders’ network.
Q: Do you have any advice for younger attorneys who want to get into white collar criminal defense?
First get trial experience, whether with a public defender’s office or prosecutor’s office. That’s the easiest way to develop the essential skills. But it’s not the only way. I’ve got a young partner here whom I’ve mentored for a dozen years who has worked only in law firms. But, she connected with the trial lawyers in those firms and learned a lot by working with them as second chair and being advised by them on her own smaller cases. She has become an extraordinarily talented trial lawyer in her own right.
As for being a public defender, it’s important to try to work at an office that reasonably restricts the intake of new cases. If you look at, for example, the Public Defender Service in D.C., it is a low volume office that accepts mostly difficult cases and it has lots of resources for experts and investigators. You need to be able to expend the time necessary to thoroughly research and prepare a case and, that attention to factual detail and the nuances of the statutes, rules and procedures are very important in the more complex cases.
You can learn by doing but you can also learn by watching. Go see the best trial lawyers in action whenever you have the chance. You can also learn by doing some appellate work because it helps you figure out how to avoid mistakes at trial.
Q: To follow up on that, how can a younger attorney develop the trial experience needed to be an effective criminal defense attorney in today’s environment?
If you want to get trial experience, you need to look for it. Federal courts these days have very few trials. You need to be willing to take on pro bono or court-appointed cases, or smaller cases for lesser fees – often in state court. You need to take trial practice courses and attend CLE programs on trial skills. And, read biographies of great trial lawyers.
In a large firm, you need to figure out who is going to trial, and ask to be on those trial teams. You need to know more about the facts than anyone else working on the case. You need to prove yourself in depositions, or motions hearings, where you are examining witnesses and arguing your positions. You need to lobby and advocate for a chance to do that. The people who really want to be trial lawyers will go out of their way to look for opportunities that large firms do not gratuitously provide.
Q: Let’s talk about the McDonnell case. The trial in that case lasted almost six weeks. Do you have any special tips for handling very long trials that go on for months or longer?
Its not unusual for me to try cases that are several months long. I tried one case for 22 months. That was the longest federal criminal trial in history. It took us four months just to pick the jury.
Lengthy trials are certainly mentally and physically demanding and can take a toll on other aspects of your life. You are always focused on the trial, which means you ignore other things in your life – your practice, your friends, and your family. But minimizing outside distractions is important. If your family and client’s budget will permit, stay in a hotel very near the courthouse even if the trial is local.
Make sure you get some exercise, at least a modest amount everyday. Eat well. Try to get at least four or five hours of uninterrupted sleep. I have never gotten more than that amount a night since I was a teenager, but I have been fortunate to be able to thrive on it. I also try to catch up a bit on sleep on the weekends.
You need to be someone who thrives on stress, as opposed to being someone who is enervated by stress. Sometimes you have to play hurt. Your back may be killing you; you have a cold or a headache. You do your best to power through these minor injuries.
Q: What advice do you have for being a source of strength for clients, particularly during long trials?
I like to analogize it to a boxing match. I have never seen one where one guy lands all the blows. When a compelling witness for the government testifies on direct for three days, you can do nothing but sit and listen and grimace. But you will have your chance to fight back when it comes time for cross. There are peaks and valleys in long trials. You need to keep your eye on the end-game. Advise your client before the trial starts that there will be good and bad days. The issue is who is standing at the end. Convince your client that you have a plan to get through this, to be victorious at the conclusion.
You need to be able to adjust during the course of a trial. You need to have a plan that is comprehensive enough and flexible enough to be adaptable to new evidence or new developments.
If the client knows you are working hard, that you are totally prepared, that you have good defense themes and legal theories, it is much easier to distinguish between battles and the war. If I can’t win every battle, I can still win the war. If the client thinks you know what you are doing, and you are it doing well, they will share your confidence and, at a minimum, believe that you have done everything for them you possibly could have.
I always believe I can and will win no matter what the odds are, no matter what unexpected problems may arise. That inspires my clients. The client made a decision to not plead, and understands there’s risk involved. Clients will accept outcomes if they see sustained effort by competent people. At the end of the day, I don’t control what the judge or jury does, and I don’t create the facts. Clients recognize that there can be mistakes, screw-ups, missed opportunities in trial. It’s a dynamic arena. But if you work hard enough, think hard enough, fully accept the responsibility of defending someone’s freedom, reputation and fortune – you can overcome those problems.
Q: In working on the McDonnell case, your strategy involved preserving and seeking Supreme Court review on the official acts issue from the very beginning. Can you tell us what were some of the alternative plans you had for the case?
Before the trial started, we filed a motion to dismiss based on the official acts issue. We also tried to get the judge to give us the legal instructions the prosecutors gave the grand jury, because we thought they misunderstood the law. Both motions were denied. So, I did not go into trial assuming that we would be getting the final instructions we wanted.
We had other defenses besides the correct definition of “official act,” including reasonable doubt, good faith and good character.
I was optimistic. I went into closing arguments thinking we were going to win no matter how bad the instructions were because our client had no criminal intent. I tried to argue as closely as I could to the instructions I wanted. I had a plan, but it was multifaceted.
I knew if we ended up losing the case at trial, we had a fantastic appellate issue that likely would be cert-worthy. I thought if we did get to Supreme Court, we would win, 9-0. If Justice Scalia had been on the bench, the Court might have even invalidated the bribery statutes on vagueness grounds. Several jurors even told the press after the trial that they believed my client’s trial testimony. The jury convicted the Governor because they were directed to do so by the flawed instructions.
Q: Did the location of the McDonnell trial in Richmond, Virginia figure into your preparation for trial at all, and if so, how?
To prepare for any trial, you need to know that court. You need to understand who the players are. You need to know their personalities, likes, dislikes. The trial in this case was held in the Richmond Division of the United States District Court for the Eastern District of Virginia. It is a small court, with only four judges and two magistrates. It is a tight community of prosecutors and judges who work together all the time.
The Richmond Division is also notorious for being fast and formal. You don’t have conference calls with the judge to resolve discovery disputes. You need to file a motion, in the right format, at the right time, with the right page limits. Before the trial started, we belatedly received about 5 million pages of discovery documents. That was sometime in late March. And we had to go to trial at the beginning of August. That was as far out on the calendar as the judge was going to let it go. He wanted to get it over with before his clerks rotated out on Labor Day.
You have to be ready going into that jurisdiction, knowing that you will be on a very fast track. Substantial advance preparation is key. You need the resources to deal with that pace of litigation. You’re filing motions all the time and arguing constantly. You typically won’t get all of the discovery you need until close to the trial date. You need to be prepared for all of that. You need to consult with local lawyers who regularly practice there and make sure you know what problems might arise and how best to avoid or solve them.
In any major case, you need to know the personalities of the players: what annoys them, what makes them happy. The clerks, judges, opposing counsel. The local quirks. For example, in Richmond, if you run out of defense witnesses early on a particular day, maybe because the prosecution didn’t spend long cross-examining your witnesses, your case is over, even if you have more witnesses lined up for tomorrow. You can beg the judge to adjourn early that day, but you don’t want to count on getting that slack.
Also, the Richmond division, like the rest of EDVA, does not allow electronics in the courthouse without the judge’s permission. If you don’t have electronics, it is hard to communicate with people in your firm or witnesses. In Alexandria, you need to line up to use the few available payphones. These are the types of restrictions you need to know about and plan for before a trial. You have to be prepared to inconvenience witnesses by making them show up early. You need to have law clerks or paralegals who are keeping the witnesses happy and on the reservation while waiting.
Q: Governor McDonnell was himself a former prosecutor, and an accomplished attorney. Did this background make any difference for you in terms of your representation?
The Governor’s background created both opportunities and challenges. He was a politician, a lawyer, and the CEO of a state with 100 billion dollar biennial budget and 100,000 employees.
I’ve represented many lawyers and business executives. One common thread is that they are particularly difficult to train as witnesses. Many do not think that anyone on the jury is their peer. They have a hard time trusting the jury. Based on decades of experience, I generally trust jurors, as long as I get a reasonable voir dire. You have to convince your client that this group is a jury of your peers. Even if individually they may not be your peers, collectively they are as smart as you are. You have to convince your client to trust in the system, and the magic number of 12 jurors who must be unanimous. You have to convince your client to believe in a system which has historically proven reliable, even if not unerring.
Lawyer clients, in particular, often second guess you on legal issues and trial strategy. They can’t help themselves. They act like lawyers even though they are the client. They want to expand and explain, question and challenge. CEO’s don't like being told what to do. Politicians want to manipulate the press. You have to convince these clients that you, not they, deserve to be in control.
Q: People have praised you for your cross-examination of the FBI agents in the Governor McDonnell case. Do you have any general philosophy or approach for cross-examining law enforcement agents?
My first rule is that you cannot be the least bit intimidated or afraid to take on an agent on cross-examination, even though they are usually the most well-trained and experienced witnesses in the case.
Secondly, my experience has been that law enforcement witnesses often act like expert witnesses, even if not qualified as such. They are primed to give opinions at the slightest opportunity. You have to approach them as you would approach an expert witness. This means learning how they think, how they work, how they operate, how they do their job. What rules and practices govern their conduct and influence their thinking. What their biases, motivations are. What their weaknesses and strengths are. Then you exploit these things on cross-examination.
You must remain in control of these witnesses, while giving them enough rope to make mistakes.
I like cross-examining experts and law enforcement agents. I know how agents think, talk and how they collaborate. And what corners they may cut. Whether or not they think the ends justify the means. Then I devise a strategy for cross-examining them that is effective in making the point I want to make.
Q: You have obviously achieved an incredible outcome in the McDonnell case. With that said, we know that no case is ever perfect. Do you believe that there was anything in the case you would have done differently?
To begin with, it was a team effort. It takes a village to win these types of cases. As for doing things differently, I don’t mean to be flip, but I would have preferred to try the case in October or April rather than August. A better month of the year with better weather in Richmond. Fewer potential jurors with substantial business expertise out on vacation.
We probably should not have had so many defense lawyers in the courtroom on a daily basis. It can look odd to a jury. We could have been better at tasking folks in the courtroom to be specifically responsible for keeping track of all the various courtroom dynamics. We could have done a better job of not annoying the judge.
But, you need to try to find ways to give young lawyers on the team opportunities to do something substantive in court.
There was also a benefit to having a large team in trial. If a juror does not like me, maybe she will like the personality of another lawyer on the team. Same with witnesses. Some lawyers draw the judge’s fire more than others.
In hindsight, I would have also tried hard to move the case out of Richmond. The problem was that I did not get the kind of voir dire I expected on pre-trial publicity. Going into the trial, I knew the demographics of the Richmond jury pool. I knew the political polling. I knew what the press coverage was going to be like after the investigation was made public. Knowing all that, I was still convinced that if I got reasonable voir dire, I could get a good jury.
Things did not work out that way. The voir dire was severely restricted. For example: both sides agreed that the Court should ask the following question: “based on your exposure to the media, have you formed any opinions about guilt or innocence of either defendant?” The Court would not ask that question. Instead, the judge asked the entire jury pool of 143 to stand up if they had heard about the case and to keep standing if they could not be fair. Naturally, all sat down. I was not amused.
In terms of other issues, there are things I wished would have come out differently, but not that I would have done differently. For example, I would have liked the two defendants to be severed, but the judge did not allow it. We filed many other motions. The judge ruled against us on nearly all, except 17(c) subpoenas and pro hac vices. I did not expect to win many other motions, but there are strategic reasons for filing them anyway. For example, you get to learn more about the government’s case because they have to respond. You also build up chits, so you can tactfully say: “how about ruling for me once in a while, judge?”
Another issue from the case that I still think about is the problem of dealing with leaks during the grand jury phase. To give some background, during the investigation of Governor McDonnell, many leaks appeared in the press that were attributed to law enforcement sources. However, we were not able to slow the flow of leaks, or figure out a good way to stop them.
Trying to run down grand jury leaks can be a real diversion of resources and time when you are on the fast track to trial. While most prosecutors are ethical and would not leak grand jury info, there are many sources other than prosecutors who can leak information about a grand jury investigation.
The only way to find out is through litigating the issue. Then you would be fighting Williams & Connelly or Cahill Gordon on these First Amendment side issues if you tried to subpoena reporters, while you are also fighting the prosecution on the main front. You may stop the leak and punish the person responsible, but you can’t repair the damage done in terms of influencing public opinion.
One other thing that bothered me during the trial, and which I still don’t have a good answer for, is the problem in a high profile case, of dealing with the constant negative press, before, during and after the trial. Various major publications were obviously out to do Governor McDonnell in, and there was a constant torrent of false narratives being spread in the major news outlets as well as the blogging sphere. The problem only got worse when we were in trial. Reporters were all over the courthouse. There would be twenty or thirty reporters in my hotel whom I couldn’t recognize. Every time I sat with a colleague for breakfast or dinner, I had to worry about whether there were reporters listening to our conversations.
I was never able to figure out an effective way, consistent with the free press-fair trial restrictions, to deal with the negative publicity in the McDonnell case. The best solution I could come up with was to file motions articulating something that I’d like the press to pick up on, and hope that they print it, and if a reporter called me and said he was going to print something which I knew was false and defamatory, I threatened to sue.
Of course, the client is always free to speak to the press because he has First Amendment rights. In Governor McDonnell’s case, the day after the indictment was returned, he, with his wife and his children beside him, gave a short press conference in the lobby of a law firm in Richmond. The magistrate judge at the subsequent bond hearing was upset by this. He quoted me the local free press-fair trial rule, and noted that my client is also a lawyer. Of course, the magistrate was wrong about the rule’s application, because it clearly only applied to attorneys representing a client, and my client was not representing himself. Later at the arraignment, the district court judge said to both sides: “the game playing with the press is over.” From that point forward we were never quoted in the press again until the trial was over.
In sum, I felt that the negative and false press coverage during the trial really hurt us, and I’d like to think if I did the trial again, I’d figure out a better, ethical way of controlling or balancing that narrative.
Q: A final question: sometimes our most memorable cases may not be the most high-profile cases. Do you have any little-talked about cases that are especially memorable to you?
I’ve always liked all of my clients over the years, and found something to admire in each one of them, no matter what types of crimes they were charged with. One especially memorable one was a young man, who was a juvenile at the time I represented him in the Public Defender Service. I won his trial, and he was very grateful.
Later on when he was an adult, he got himself in trouble on major federal offenses I did not know about, and he ended up with a life sentence on cocaine trafficking and firearms related charges. Four or five years ago, while still in prison, he wrote to me and asked for Jones Day’s help with a habeas petition. We ended up getting his life sentence substantially reduced. He is now out of prison, married, working several jobs and doing extremely well.
When he wrote that letter to me asking for help with his habeas petition, he included the pleadings that he had filed pro se up to that point to resurrect some of his legal issues and get his foot in the door. He had turned into quite the jailhouse lawyer. What struck me most, though, were the footnotes at the bottom of the first page of all his motions, expressing gratitude to me personally as his mentor for teaching him everything about the law.
[This interview has been lightly edited for brevity and clarity.]
(EG & ZZ)
Thursday, September 29, 2016
In white collar cases, prosecutors often stress the signs or "indicia" of fraud inherent in a given defendant's conduct. In the FBI/DOJ investigation of Secretary Clinton we have several signs of incompetence and/or highly irregular conduct on the part of those in charge. The one that stands out most clearly to anyone who practices white collar criminal defense was the decision to allow Cheryl Mills to attend Secretary Clinton's FBI interview. Competent prosecutors do not allow a key witness to participate as an attorney in an FBI interview of the main subject. It just isn't done. It isn't a close question. It is Baby Prosecution 101. Director Comey's attempt to justify this decision during yesterday's House Judiciary Committee Oversight Hearing was disingenuous and disgraceful. According to Comey, the FBI has no power to control which attorney the subject of an investigation chooses to represent her during an interview. This is literally true, but irrelevant and misleading. Prosecutors, not FBI agents, run investigations. Any competent prosecutor faced with the prospect of Ms. Mills's attendance at Secretary Clinton's interview would have informed Clinton's attorneys that this was obviously unacceptable and that, if Clinton insisted on Mills's attendance, the interview would be conducted under the auspices of the federal grand jury. At the grand jury, Secretary Clinton would not have enjoyed the right to her attorney's presence in the grand jury room during questioning. In the event Clinton brought Ms. Mills along to stand outside the grand jury room for purposes of consultation, competent prosecutors would have gone to the federal judge supervising the grand jury and attempted to disqualify Ms. Mills. In all likelihood, such an attempt would have been successful. But of course, it never would have gotten that far, because Secretary Clinton will do anything to avoid a grand jury appearance. So, Director Comey's response was a classic dodge, one of several that he perpetrated during yesterday's hearing. As noted above, the decision to allow Ms. Mills to attend Secretary Clinton's FBI interview was only the clearest example to date of irregular procedures sanctioned by the prosecutors in charge of the Clinton email investigation. More to come on that in a subsequent post.
Wednesday, September 7, 2016
Finally, as promised, here is the U.S. v. Reddy Annappareddy 9-1-16 Motion to Dismiss Hearing Transcript. At the conclusion of that hearing Judge George Levi Russell dismissed the Indictment with prejudice. Judge Russell's rationale for his ruling can be found at pages 49-62 of the transcript. This was a health care fraud case and a core government theory was that Mr. Annappareddy received Medicaid reimbursement for pills that were never given to patients. The government sought to prove its theory by showing that Mr. Annappareddy's pharmacies billed for more pills than they received. The most significant evidence that the prosecutors offered in support of this allegation was a calculation of the purported “loss” from the alleged fraud. The following factors were key to the Court's finding that the government committed due process violations that shocked the conscience and rendered it impossible to put Mr. Annappareddy back on an even footing with the government: 1) the government violated Brady by failing to disclose loss calculations from its initial auditing team that were significantly smaller (in total and with respect to two key pharmacies) than the calculations of a subsequent government auditor who testified at trial; 2) the government violated Brady by failing to disclose the risk of double-counting errors in the loss calculations; 3) the government presented false testimony regarding the loss calculations due to double counting errors; 4) the government presented false testimony by a government agent, based on her examination of the wrong set of phone records, that Mr. Annappareddy had NOT made any calls to a key individual in response to a material email from that individual, when in fact Annappareddy had several phone contacts with the individual within minutes of the material email; and 5) the government destroyed potentially key exculpatory evidence without a court order or the defense's permission. The Court also sent a not so subtle warning to the government: "In the event that my record is not clear or exercise of my discretion too broad, this Court will conduct an extensive time-consuming and costly hearing as to these matters and the other grounds supporting the motion to dismiss and other motions which have already been filed. To that end, the balance of all other motions in this case are denied as moot." Translation: If you appeal this ruling and I am reversed, we will delve in detail into the other grounds of error raised by the defense. And it will not be a pleasant process. Hat Tip to David Debold of Gibson Dunn for sending along the transcript.
Thursday, May 26, 2016
The Supreme Court this week in Foster v. Chatman (14-8349, decided May 23,2016) reversed a Georgia murder conviction because the prosecutors violated the requirement of Batson v. Kentucky, 476 U.S. 79 (1986) that lawyers not use race-based peremptory challenges to remove jurors. The Court, in an exquisitely detailed factual analysis by Chief Justice Roberts, dissected the prosecutors' purported reasons for challenging two prospective African-American jurors and found them disingenuous.
In a Slate article, my friend and colleague, the prolific and invaluable Prof. Bennett Gershman ("How Prosecutors Get Rid of Black Jurors," May 26,2016) writes that, notwithstanding Batson and now Foster, prosecutors will continue to "remove black persons from jury service with impunity simply by concocting purportedly race-neutral reasons." He points out that the Foster reversal occurred only because of the random discovery of the prosecutors' file containing telltale notations and comments about their intentions to strike black jurors.
I agree with Prof. Gershman. Prosecutors will continue to use race as a basis, sometimes the predominant or even only basis, in their determinations which jurors to challenge. And, so will defense lawyers. Given the limited knowledge lawyers have about the predelictions and potential biases of jurors, especially in jurisdictions which prohibit or severely limit lawyer questioning of jurors. a juror's's race is perceived by trial lawyers, reasonably I believe (although not to my knowledge based on any scientific proof), as an indication of how he will vote in the jury room, just as how he will vote in the voting booth.
As Prof. Gershman states with respect to prosecutors (generally applicable also to defense lawyers), "Prosecutors have long believed that striking black jurors improves their chances of convicting a black defendant. Prosecutors assume that black people are more likely than white people to have negative feelings about government, to have had bad experiences with the police, are more likely to have been targeted for arrests and forcible stops than white people, are more likely to have been imprisoned for minor drug crimes, and are more likely to believe that crimes against black victims are prosecuted less aggressively than crimes against whites." Thus, generally, prosecutors (and defense lawyers) believe that, all other things being equal, black jurors are more likely to acquit black defendants than other jurors. (I am not aware of any empirical studies of how race affects jury decisions. Empirical studies of jury verdicts are, it seems, far fewer than analyses of voting decisions.)
Accordingly, prosecutors and defense lawyers, both seeking to win (and believing that jury composition is a major factor as to whether they will), and therefore desiring jurors likely to favor their clients, consider race in their jury selection decisions and, when challenged (as are prosecutors more often than defense lawyers) employ less than candid justifications for their choices. And, since judges are hesitant to call lawyers, especially prosecutors, liars, the lawyers' justifications, if at all plausible, are almost always accepted. Compliance with Batson's dictates therefore is essentially, as Prof. Gershman states, "a charade," commonly violated by prosecutors (and also by defense lawyers).
To be sure, there are some differences between race-based challenges by prosecutors and by defense lawyers. Prosecutors' race-based challenges more often are exercised in order to deprive a defendant from a cross-section of the community and a jury including some of his peers; defense lawyers' race-based challenges are more often designed to reach those goals. Prosecutors' race-based challenges more often deprive black citizens of the right to serve on juries; defense lawyers' challenges enhance that (but diminish the right of whites and others to serve). Additionally, to discriminate - which is what challenging a juror based on race is - is presumably more invidious if done by an agent of the state than a private citizen. But race-based challenges by either side are common, and violate the constitutional principles of Batson.
Batson, therefore, simply does not work. Both sides commonly violate its principles to achieve their own goals. It may be considered a noble experiment with a lofty goal that has failed, or perhaps an example of a short-sighted Supreme Court just not realizing how things are done down in the pits. What can or should be done? I am sure many trial lawyers, both criminal and civil, prosecutor or defense counsel, would prefer it be eliminated. Prof. Gershman mentions a proposal to limit peremptory challenges to situations where attorneys give a "credible reason" for their exercise, what I call a challenge for "semi-cause." Another proposal he mentions is to track carefully all prosecutorial challenges similar to the way police stops are tracked. An obvious way is to eliminate all peremptory challenges, as Justice Marshall had suggested in Batson. And, of course, professional sanctions against lawyers who violate Batson might help enforce its dictates. (However, the history of lack of sanctions against prosecutors for other areas of prosecutorial misconduct suggests increased sanctions would have little effect). Lastly, more lengthy voir dire of jury panels, especially if by lawyers and not judges, would provide the litigants with a greater basis to exercise challenges than racial generalizations.
As Prof. Gershman says, "[Batson] diminishes the integrity of the criminal justice system." The decision in Foster is unlikely to solve that problem.
Wednesday, May 4, 2016
As every veteran litigator knows, who the trial judge is not only a major determinant in the ultimate result of a case, but a major factor in how unpleasant and difficult the lawyer's life will be. There are judges, I suspect fewer than in the past, who are so biased to defendants and hostile to their lawyers, more often to defense lawyers than prosecutors, that the case is a nightmare for the lawyers (and obviously their clients). Reversals of judges for intemperate and biased conduct toward lawyers, or even the generally meaningless criticisms in cases that are not reversed, are rare. Defense lawyers, therefore, rejoice when one of those decisions is issued by an appellate court.
Last week, the Ninth Circuit in an unpublished opinion, United States v. Onyeabor, 13-50431 (April 27, 2016), reversed a conviction by a jury before Central District of California Judge Manuel Real primarily because the judge's remarks "devastated the defense, projected an appearance of hostility to the defense, and went far beyond the court's supervisory role" so that they "revealed such a high degree of antagonism as to make fair judgment impossible." This is not the first time the court has admonished Judge Real, who in 2006 was the subject of a Congressional investigation which considered but did not vote impeachment.
Almost every state has a judicial conduct commission which on occasion removes unfit judges. These commissions generally consist of a combination of judges, lawyers, and laypeople. There is no direct federal analog, although there is a somewhat clumsy apparatus whereby the judiciary itself may impose sanctions and recommend that Congress consider impeachment. Sanctions on federal judges for abusing lawyers and litigants are, to my knowledge, virtually non-existent. Although a federal judge apparently may be removed for beating a spouse (as Alabama District Judge Mark Fuller likely would have, had he not resigned) , he or she will likely not be sanctioned at all for beating up lawyers and defendants.
Saturday, April 9, 2016
The New York Times reported on Tuesday, April 5 that Donald Trump, contrary to his asserted practice of refusing to settle civil cases against him, had settled a civil fraud suit brought by disgruntled purchasers of Trump SoHo (New York) condos setting forth fraud allegations that also were being investigated by the District Attorney of New York County ("Donald Trump Settled a Real Estate Lawsuit, and a Criminal Case Was Dismissed"). The suit alleged that Trump and two of his children had misrepresented the status of purchaser interest in the condos to make it appear that they were a good investment.
What made this case most interesting to me is language, no doubt inserted by Trump's lawyers, that required as a condition of settlement that the plaintiffs "who may have previously cooperated" with the District Attorney notify him that they no longer wished to "participate in any investigation or criminal prosecution" related to the subject of the lawsuit. The settlement papers did allow the plaintiffs to respond to a subpoena or court order (as they would be required by law), but required that if they did they notify the defendants.
These somewhat unusual and to an extent daring conditions were no doubt designed to impair the District Attorney's investigation and enhance the ability of the defendants to track and combat it, while skirting the New York State penal statutes relating to bribery of and tampering with a witness. The New York statute relating to bribery of a witness proscribes conferring, offering or agreeing to confer a benefit on a witness or prospective witness upon an agreement that the witness "will absent himself or otherwise avoid or seek to avoid appearing or testifying at [an] action or proceeding" (or an agreement to influence his testimony). Penal Law 215.11 (see also Penal Law 215.30, Tampering with a Witness). Denying a prosecutor the ability to speak with prospective victims outside a grand jury makes the prosecutor's job of gathering and understanding evidence difficult in any case. Here, where it is likely, primarily because of a 120-day maximum residency limit on condo purchasers, that many were foreigners or non-New York residents and thus not easily served with process, the non-cooperation clause may have impaired the investigation more than it would have in most cases.
A clause requiring a purchaser to declare a lack of desire to participate, of course, is not the same as an absolute requirement that the purchaser not participate. And, absent legal process compelling one's attendance, one has no legal duty to cooperate with a prosecutor. It is questionable that if, after one expressed a desire not to participate, his later decision to assist the prosecutor voluntarily would violate the contract (but many purchasers would not want to take a chance). The condition of the contract thus, in my view, did not violate the New York statutes, especially since the New York Court of Appeals has strictly construed their language. People v. Harper, 75 N.Y.2d 373 (1990)(paying victim to "drop" the case not violative of statute).
I have no idea whether the settlement payment to the plaintiffs would have been less without the condition they notify the District Attorney of their desire not to cooperate. And, although the non-cooperation of the alleged victims no doubt made the District Attorney's path to charges more difficult, the facts, as reported, do not seem to make out a sustainable criminal prosecution. Allegedly, the purchasers relied on deceptive statements, as quoted in newspaper articles, by Mr. Trump's daughter Ivanka and son Donald Jr. that purportedly overstated the number of apartments sold and by Mr. Trump that purportedly overstated the number of those who had applied for or expressed interest in the condos, each implying that the condos, whose sales had actually been slow, were highly sought. A threshold question for the prosecutors undoubtedly was whether the statements, if made and if inaccurate, had gone beyond acceptable (or at least non-criminal) puffing into unacceptable (and criminal) misrepresentations.
Lawyers settling civil cases where there are ongoing or potential parallel criminal investigations are concerned whether payments to alleged victims may be construed by aggressive prosecutors as bribes, and often shy away from inserting restrictions on the victims cooperating with prosecutors. On the other hand, those lawyers (and their clients) want some protection against a criminal prosecution based on the same allegations as the civil suit. Here, Trump's lawyers boldly inserted a clause that likely hampered the prosecutors' case and did so within the law. Nonetheless, lawyers seeking to emulate the Trump lawyers should be extremely cautious and be aware of the specific legal (and ethical) limits in their jurisdictions. For instance, I personally would be extremely hesitant to condition a settlement of a civil case on an alleged victim's notifying a federal prosecutor he does not want to participate in a parallel federal investigation. The federal statutes concerning obstruction of justice and witness tampering are broader and more liberally construed than the corresponding New York statutes.
Monday, March 7, 2016
Texas Disciplinary Rule of Professional Conduct 3.09(d) requires a prosecutor to:
make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
Rule 3.04(a) requires, among other things, that "a lawyer shall not obstruct another party's access to evidence."
In a highly significant ethics opinion, signed and delivered on December 17, 2015, the Texas Board of Disciplinary Appeals ("BODA") ruled that Rule 3.09(d) does not contain the Brady v. Maryland materiality element, or any de minimus exception to the prosecutor's duty to disclose exculpatory information in a timely manner. BODA also held that Rule 3.09(d) applies in the context of guilty pleas as well as trials. In other words, the prosecutor cannot negotiate a guilty plea without beforehand disclosing exculpatory information to the defense.
The case decided by BODA is Schultz v. Commission for Lawyer Discipline. William Schultz was the Assistant District Attorney in Denton County. He prosecuted Silvano Uriostegui for assaulting Maria Uriostegui, his estranged wife. Maria testified at a protective order hearing that Silvano was her attacker. Schultz never disclosed to the defense that Maria could only identify Silvano by his smell, boot impression, and stature "as seen in the shadow," as it was dark at the time and Maria could not see her attacker's face. Schultz learned this information from Maria one month prior to the trial date. Silvano entered a guilty plea. At the sentencing hearing, Maria testified "that she did not see her attacker's face and that she did not know whether her attacker was Silvano. Maria also testified that she had told the prosecutor earlier that she did not see who attacked her." (With respect to the protective order hearing, Maria "explained that she had testified...that Silvano was her attacker because she had assumed it was him from his smell and boot.")
The testimony at the sentencing hearing was the first time defense counsel Victor Amador learned of the exculpatory information, despite having filed broad pre-trial requests for exculpatory evidence. Amador moved for a mistrial which was granted by the trial court. Amador next filed an application for writ of habeas corpus. The trial court granted habeas relief, allowing Silvano to withdraw his guilty plea. The court also ruled that double jeopardy had attached.
Amador filed a grievance against Schultz with the State Bar, which was the basis of the disciplinary proceeding. Schultz contended that the information in question was neither exculpatory or material. The Commission for Lawyer Discipline disagreed, as did BODA. BODA based its holding primarily on the plain language of Rule 3.09(d) and on commentary to the Rule and to the ABA Model Rule on which Rule 3.09(d) is based. BODA also held that Schultz's failure to disclose the exculpatory information constituted obstruction of another party's access to evidence under Rule 3.04(a). Schultz received a six month fully probated suspension.
The only Texas attorney disciplinary authority higher than BODA is The Supreme Court of Texas. Schultz did not appeal BODA's decision to The Supreme Court of Texas. Thus BODA's decision in Schultz is now the governing ethical interpretation of Rule 3.09(d) in Texas. Ergo, under the McDade Act, it now appears that both state and federal prosecutors litigating in Texas are under an ethical duty to timely disclose to the defense all evidence or information "that tends to negate the guilt of the accused or mitigates the offense," irrespective of its materiality. The disclosure must be made prior to any guilty plea.
The defense bar owes a great debt of gratitude to defense attorney Victor Amador, the Committee for Lawyer Discipline of the State Bar, and BODA. It should also be noted that many other jurisdictions have rules containing similar or identical wording to 3.09(d). There is much more work to be done. Hat Tip to Cynthia Orr of Goldstein, Goldstein & Hilley for bringing this opinion to our attention.
Monday, November 2, 2015
Last Friday attorney Steven H. Levin posted a guest blog disagreeing with my view in a blog earlier that day that Dennis Hastert should not have been prosecuted. Hastert was charged with, and pleaded guilty to, structuring withdrawals from financial institutions of his own apparently legitimately derived funds, purportedly to conceal payoffs to an alleged extortionist whom he had purportedly sexually victimized over 30 years ago. Hastert, Mr. Levin said, "had to be prosecuted" because his prosecution had "potential deterrent effect" on "would-be structurers" and "would-be extortionists."
Even if the Hastert prosecution were to have a deterrent effect on such "would-be" criminals, I still believe, for the reasons I expressed, that this case was an appropriate one for the exercise of prosecutorial discretion. I do recognize that deterrence is a commonly recognized goal of prosecution and sentencing, and accept that prosecutions do have a deterrent effect on some "would-be" white-collar criminals (but far less an effect on those who might commit crimes involving violence and narcotics). Nonetheless, I question whether this prosecution will cause a positive deterrent effect on those who are considering the commission of either structuring or extortion.
I do accept that the publicity attendant to the prosecution will to an extent increase public awareness of the existence of a crime called structuring whose broad expanse covers acts committed by otherwise law-abiding citizens to maintain their privacy and avoid disclosure of things they prefer be confidential, and therefore may have some deterrent effect on those persons. However, deterring people from committing essentially harmless acts even though criminalized by an overbroad statute does not appear to me to be much of a societal benefit. And, to the extent that the attendant publicity will educate money launderers of criminal proceeds and deter them from violating the structuring statute, of which sophisticated criminals are overwhelmingly aware in any case, the positive effect is also questionable since its potential effects will be further concealment and consequent limitations on governmental discovery of criminality.
Additionally, I doubt that many would-be extortionists would be deterred from acts of extortion by this prosecution, in which, it so far appears, the purported extortion victim has been prosecuted and the purported extortion perpetrator remains free and also has probably received millions of dollars in payments (and also perhaps achieved some measure of retribution by the exposure, so far limited, of Hassert's alleged misdeeds) . To the extent it has any effect on rational would-be extortionists who weigh the benefit/risk ratio, this prosecution encourages rather than deters them.
Thursday, October 29, 2015
Former Speaker of the House Dennis Hastert yesterday pleaded guilty to money laundering in a Chicago federal court. Hastert admitted that he structured banking transactions by taking out amounts under $10,000 to avoid reporting requirements in order to conceal the reason he was using the money, which according to the plea agreement was "to compensate and keep confidential his prior misconduct." Although the facts were not revealed in court (but may later be in sentencing proceedings), sources reported that he was paying "hush money" to a former student he allegedly molested over 30 years ago when he taught high school and coached wrestling.
It thus appears that Hastert was an extortion victim, coerced into paying a former student millions of dollars to avoid public disclosure of his misdeeds and the destruction of his reputation. (I assume that the applicable Illinois statute of limitations had passed.)
I question whether Hastert should have been prosecuted. The money laundering statutes, although clearly an intrusion into privacy, serve a generally laudable purpose in making it difficult for criminals to accumulate and spend ill-gotten gains. Here, however, Hastert (although he may have done serious wrongs many years ago) was not a criminal, but a victim.
Congress has given the government broad power to prosecute violators of the money laundering laws well beyond those who derive funds from crime. I do not know what drove the decision to prosecute Hastert. Perhaps it was outrage over his long-ago sexual misconduct; perhaps it was to put forth a case which would derive considerable publicity, something to which prosecutors are not averse; perhaps it was just a rigid application of the law. Although Hastert's banking conduct does clearly fall within the statutory bounds, and there may be arguably legitimate reason to prosecute him, on balance I believe prosecutorial discretion should have been exercised and a case not brought. I wonder whether it would have been brought against an ordinary Joe Smith.
Tuesday, June 9, 2015
Three years ago, I wrote a lengthy blog piece about U.S. v. Daguerdas, a case in which a SDNY judge ordered a new trial for three of four defendants because of juror misconduct. ("Lying Juror Requires New Trial in Tax Fraud Case," July 12, 2012). The judge denied a new trial for the fourth defendant, Parse, because his lawyers, said the judge, knew or should have known of the juror's misconduct and chose not to report it to the court, and thus Parse waived the misconduct. On appeal to the Second Circuit, U.S. v. Parse (13-1388, June 8, 2015)), the Court, with Judge Amalya Kearse writing the majority opinion, reversed Parse's conviction and remanded for a new trial as to him also.
The Court spent a considerable time reviewing the record to conclude that the district court's factual findings (by Judge William Pauley) that prior to the verdict the lawyers knew about the misconduct or failed to exercise due diligence to determine whether it had occurred was "clearly erroneous" and "unsupported by the record." This ruling, with which Judge Chester Straub, while concurring in the reversal, disagreed, I am sure gave some measure of relief to the trial lawyers, from the firm of Brune and Richard, whom Judge Pauley had chastised. Those lawyers appeared to have been faced with the difficult dilemma of whether and when a lawyer is obliged to report suspected misconduct by a trial participant that is likely to be favorable to her client and to have chosen not to report something that would have diminished his (and their) chance of winning. (It is also possible that during the heat and travail of trial the lawyers never focused on the reporting issue.)
This ethical/practical dilemma arises, for instance, when an attorney suspects or believes - but lacks actual knowledge - about trial misconduct, whether minor misconduct such as a juror engaging a defendant in casual conversation outside a courtroom despite a court admonition, or major misconduct such as a witness or defendant perjuring himself. Reporting the misconduct would likely result in removing a potentially favorable juror in the first example and in striking favorable testimony and severely limiting the defense in the second, in both cases lessening the client's (and attorney's) chance of a favorable outcome.
The Court declined to adopt a general rule, as requested by the defendant and amicus New York Council of Defense Lawyers, that lawyers (including prosecutors presumably) need not bring juror misconduct to the attention of the court unless counsel actually knew that such misconduct had occurred. Nonetheless, I suspect lawyers will cite the case for that specific proposition and the broader proposition that lawyers need not report any trial misconduct unless they have actual knowledge.
Interestingly, the extensive, case-specific factual analysis about the extent of the attorneys' knowledge of the juror's misconduct was unnecessary to the Court's decision, as both the two-judge majority and concurring opinions demonstrated. Even assuming the district court was correct in its negative evaluation of the attorneys' conduct, the Court found the denial to Parse of his basic Sixth Amendment right to an impartial jury by the improper presence of the lying juror was so significant that it could not be, as the district court had found, "waived" by the lawyers' conduct, and warranted reversal.
Friday, May 29, 2015
Former Speaker of the House Dennis Hastert has been indicted for structuring and lying to the FBI, two crimes that many reasonable people, including me, are not certain should be crimes. Structuring involves, as alleged here, limiting deposits and other financial arrangements so as not to trigger a bank report to the IRS. Lying to the FBI includes a denial of wrongful activity, a natural human response by those confronted (although a mere "exculpatory no" without more is no longer generally prosecuted).
The indictment states that Hastert had paid off a fellow Yorkville, Illinois resident he had known most of that person's life $1.7 million, and promised a total of 3.5 million, "in order to compensate for and conceal...misconduct" committed "years earlier" against that person. The indictment mentions that Hastert was a teacher and wrestling coach at a local high school from 1965-1981.
Reading between the lines of this deliberately vague and unspecific indictment, my guess is that the alleged underlying misdeeds are sexual in nature. I also wonder whether the considerable payment mentioned in the indictment "to compensate for and conceal misconduct " resulted from extortion and, if so, whether as a matter of prosecutorial discretion and perhaps even as a matter of law Hastert should be prosecuted for such relatively minor crimes, and whether Hastert is really being punished for wrongs done decades ago (and probably beyond a statute of limitations). These thoughts, let me be clear, are based on speculation and surmise, with only preliminary knowledge of the facts.