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)