Transcripts For CSPAN2 Book Discussion On Licensed To Lie 20140803

Booktv continues down the former federal prosecutor Sidney Powell. He talks about prosecutorial misconduct and what can be done about it. This is about 90 minutes. Good afternoon. Welcome to the Cato Institute. My name is tim weich. Today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today Sidney Powell is just written a new book entitled licensed to lie exposing corruption in the department of justice. And the book recounts several cases in which ambitious prosecutors used illegal and unethical tactics to win their cases. Before we get to our panel of experts i want to take a minute or two to lay something of a foundation for the discussion thats going to follow but before he do that let me ask those of you who came with cell phones if you would just take a moment now to quickly doublecheck and make sure that they are turned off as a courtesy to our speakers. It includes our panelists. [laughter] okay, thank you. The first that i think needs to be understood is that there is then incredible growth in the federal criminal system over the past 30 years. In 1980 there were about 1500 federal prosecutors. Today there are close to 8000. Second, there is also been an explosion in the number of federal crimes that are on the books. We know that there are about 4000 federal statutes on the books right now but when you take into account all of the federal regulations that are churned out by the regulatory agencies, we are talking about tens of thousands of regulations that can be enforced directly or mill system. I thought there was a telling moment at the Supreme Court just a few years ago. A representative from the department of justice was up before the justices and he was explaining the scope of just one of these federal statutes and as he was explaining the scope he was interrupted by one of the justices. I i think Lewis Justice Stephen Breyer and Stephen Breyer said just a second. I think there are about 200 million americans in the workplace and according to your definition of the Honest Services criminal statutes, about 150 million americans fall on the wrong side of that line. This was a point where the attorney from the Solicitor Generals Office hamdan hague. He didnt really deny the point. Consider that for just a moment. In the eyes of the federal government we have 150 million americans that they consider to be criminals. Thats just one of these federal criminal statutes. As i said there are thousands more. The spider web of regulations is now so vast that its really hard for an ordinary citizen to go about their lives without breaking some rule or regulati regulation. You know this is just not the same america that we grew up with. A lot of us in this room i think can remember in expression when we were growing up that said Something Like lets not make a federal case out of it. That expression is really losing its force given the growth of our federal criminal code. Now we also have to worry about situations where people have actually not violated any one of these rules and regulations but have nevertheless been targeted by an unethical federal prosecutor. The lives of these people are turned upside down. Their businesses fail. Their families are shattered and their life savings ends up going to attorneys and law firms who are trying to defend them. As a matter of fact their own attorneys often advised him to plead guilty even when they have met with their client and are convinced that there are innocent. A lot of people say how can that be . Why would that happen . These attorneys will argue that the alternative is even worse. Its too risky. We were talking about complete bankruptcy if you dont plead guilty early in the process. Because the case will drag on. More money going to the attorneys and even a longer jail sentence if the jury chooses to believe the prosecutor rather than their version of events. So these are some of the problems that our panelists will be addressing along with some specific cases. Our format is going to be straightforward. Our guest author is going to go first since become a thesis of her book. I will then introduce our guest commentators and after their remarks we will then open it up and take your questions for about 15 minutes before we adjourned for lunch upstairs. Sidney powell served in the department of justice for 10 years under u. S. Attorneys that were appointed by both political parties. During her career in the department she taught courses on criminal trials and appeals to other prosecutors at the attorney generals advocacy institute. She has been the lead counsel on more than 500 appeals in the federal court and for the past 20 years she has been in private practice representing clients ranging from federal judges to international corporations. She has been repeatedly raided by her peers as one of the best lawyers in america so she is well qualified to discuss prosecutorial ethics. Would you please welcome the author of licensed to lie, Sidney Powell. [applause] thank you all very much. Thank you tim and i want to thank the Cato Institute for hosting this event. It is very much appreciated. Thank you judge kaczynski for joining us and also ron weich. This is a very auspicious occasion. I think im going to start with the forward to the book. It is written by one of our panelists, judge kaczynski was kind enough to write that for me. The issues discussed in the book are fundamental to the fairness of our legal system. The main premise underlying the book is that prosecutors have an ethical and legal and constitutional obligation to disclose evidence that is favorable to the defense. There are legal reasons for it and the Supreme Court held in brady versus maryland that its a constitutional obligation fundamental to due process. As a practical matter prosecutors have all the cards. They are usually or their representatives, agents and the Police Officers or whoever are the first people on the scene if there is an immediate crime where they are the ones who have conducted an investigation into allegations to begin with or put together all the pieces to charge a crime. They have control of the evidence. They have control of the forensics. They have control of the expert witnesses and in the cases discussed in the book they have even more control than that. One of my challenges today will be to talk to you about the book without spoiling any of it for you because i do want you all to read it. Its written like a legal thriller. I wanted people to be able to read it who are not attorneys and for attorneys also do find it interesting and be held by it so you can continue reading all of it. But its all true. It contains real transcript excerpts. One person recently asked me if i had embellished. He said he was giving me 10 leeway to embellish for the sake of making it interesting. I said i hate to tell you i actually toned it down. Its not embellished. So with that in mind there are a number of things from the book that i will share with you. Robert h. Jackson was one of her great support Supreme Court justices and as attorney general he gave a speech on april 11940 that has been enshrined in legal history. He talked about the special role of a federal prosecutor and how important it was for that prosecutor to seek justice and not convictions. He explained that at its best a prosecutor is one of the most magnificent forces in our society but at his worst he is one of the worst because he has such complete control over what can happen to an individual and such broad discretion. A prosecutor can indict someone. He can have the case processed quietly and secretly or he can expose it all to the public and humiliate and degrade the person as much as possible through the process. He has control over where the person goes to prison to a large extent. The government likes to say only the bureau of prisons decides that but thats not accurate at all. The prosecutor has a lot of input in that regard and particularly in the cases discussed in the book. Thats true but yet theres no overriding supervision of prosecutors. You will see that throughout the book also. Their discretion is virtually unbounded. We like to think of the grand jury system as being one that protects citizens but it doesnt. Grand juries are virtually every rubberstamp for prosecutors. There is hardly a prosecutor in the country that couldnt get an indictment against a potato out of a grand jury if thats what they wanted to do or get a case now build that thats what they want. So the checks and balances needed serious revision. Its also important for federal judges to pay very close attention to trials. It used to be i think, at least in my experience under 10 different United States attorneys and three districts across the country over a period of 10 years, it used to be that judges could trust for prosecutors to tell them what the law was and to get the facts straight. Now straight. No u. S. Attorney ahip or worked with would have tolerated for two seconds the behavior that i saw that cause me to write the book. They all were adamant that we do it right, that we seek justice, that we be fair and we carefully exercise her discretion to prosecute only cases that we have all the evidence and we are sure the person was guilty. We didnt have time or interest in going to look to find something to pin on someone. That was not our job. Now u. S. Attorney i ever worked with believed that was our job and we didnt stack counts of indictments either. We would indict on one, two, three, maybe for four offenses assuming we have the evidence racked up to prove all of those beyond a reasonable doubt with no question in our minds that is what should happen in the case. We produced evidence favorable to the defense that the Supreme Court called brady evidence. That was our job. I stood in the United States court of appeals for the fifth circuit and when the trial lawyers got something wrong i would tell the fifth circuit we screwed that up. In fact if you run to the westlaw system the word botched, you will find a quote in the footnote of a decision by Irving Goldberg where he quotes me as explaining the dea agents botched it. I think thats the only time the word appears in the westlaw. The quote was accurate. I havent run that search in a while. Maybe i should do it again to see if anybody else has used it. But its in there. Lots of people want to know why i wrote the book and why i wrote the book now. The answer to the first question is, i just could not stand what i have seen. It broke my heart. I have practiced before the fifth circuit for more than 30 years. Im not going to say how many more. My youthful accountants bolide that alone so im going to keep that secret. Throughout my practice i have bragdon and applauded and loved the fifth circuit. For it to have been given repeated chances i gave it to correct the egregious errors in this case and not to get it right was just more than i could stand. Then when the Bar Associations with these respective lawyers also failed to do anything about it, i felt like i had to speak of. I know im not the only lawyer that has seen this kind of injustice. As judge kozinski said in his dissent in United States versus oulson theres an epidemic of brady violations abroad in the land. It is a significant problem. It affects the fundamental fairness of all of our proceedings and if the prosecutors can do what they did to the people discussed in this book who are Merrill Lynch executives. One was a United States senator. Others were other Business Executives all of them have led stellar lives to the best of everyones knowledge, work in their communities, contributed to charities, done everything right and believed in the syst system, to have prosecutors literally make up crimes against them and then be able to push those through the system to conviction and imprisonment and have Federal District judges in houston and the fifth Circuit Court of appeals not get it right with simply heartbreaking to me. So that is why i had to write the book. I knew it had to be done by somebody with some credibility. Defendants can tell you about all the injustices they have suffered and everybody goes all go well he was a convicted felon trade so i just felt like it was time that some lawyers stand up and speak out. When i did it i had no idea what the reception would be. I didnt know whether anybody would pay the slightest bit of attention are not. It turns out people are paying attention to it so i thank each of you for being here to Pay Attention to this issue. Because it is so important and they are but through the grace of god go any one of us. If they can do what they did to these people as Brendan Sullivan has said to United States senator ted stevens to four maryland executives on wall street from houston and dallas, they can do it to anyone. The reason i wrote it now is because we have given the legal system every chance to work and it failed to do so. We also gave the Bar Associations every chance to do something about it, visavis the lawyers and the Bar Associations did nothing. The texas bar bounced the grievance was filed against the texas lawyer like a super bowl. It practically came back by return mail even though it was written by bill posed the coauthor of the law of lawyering and considered one of the top three legal ethics experts in the country. There were numerous citations to all the rules and citations to cases and definitive explanations that showed the great couple of cents on the fifth circuit opinion which found that yes the prosecutors suppressed evidence favorable to the defense but it didnt matt matter. So when the texas bar announce that i thought about sending them my law license. I havent done that because a member of friends urged me to continue practicing what im not sure i can do but im still working on that possibility. Then we also filed with the new york bar against Andrew Weisman and with the d. C. Bar against catherine rambler. The d. C. Bar just kind of swept under the rug. The new york bar, weisman at the time was general counselor of the fbi so the department of justice was defending him against the ethical charges. They kept it for about 14 months and then without giving us notice the new york bar punted it to the office of professional responsibility within the department of justice. Yes you heard that right. The department of justice was defending Andrew Weitzman and the new york bar punted to the department of justice to decide. You can pretty much figure out how the department of justice decided that one. In less than a week the office of professional responsibility ironically named within the department of justice now ironically named, dismissed the grievance. So, i finally sat down and said okay you either got to put up or shut up so i decided to write the book. Thats a long explanation of why and when i wrote the book but that is the fundamental story. The book tells the story up any number of highprofile prosecutions. Tells the human story because i also want everyone including judges to understand the human toll it takes when prosecutors violate their oath, the constitution and the rules of ethics. There is a very human story that runs throughout the book of my client in particular. Some of ted stevens and sum up one of the prosecutors, maybe more but prosecutors than just one. It tells the story of the Arthur Andersen debacle. Most everyone thought Arthur Andersen was hardly guilty. I have to confess that i i also as soon as i started hearing about the enron disaster, i knew the ramifications on the people across the country. Millions of people lost a lot of money. Some people lost all their savings. It was horrible. It was an outrage and most of us at least from everything that was reported in the press assumed that everybody that had anything to do with enron was guilty. I was one of those. Until i dug into the record of the Arthur Andersen case when Arthur Andersen asked me to consult on their petition for rehearing. The reply brief was due in the fifth circuit so the fifth circuit so they at our defile their opening brief but decided to consult additional counsel in the preparation of their reply brief so thats when i got involved. I think we had 14 or 30 days to get it vile filed. The record was massive. Fortunately maureen was lead counsel because they had a megastaff to divide it up and divide into the record at the time. It didnt take me long long to look at it to wonder why the indictment charged what it charged. The actual offense against andersen was alleged as witness tampering, which requires an element that i couldnt figure out how they were going to pro prove. Then when i read the jury instructions they had altered the prosecutors and persuaded the District Court judge in houston to alter the pattern of jury instructions. Patterned instructions are proof for annie circuit for any criminal offenses. It is sorry being covered. When judges deviate from the pattern of instruction, that alone raises in a number red flags. There is rarely a reason to do that. But here they persuaded the court to do that. Between the indictment and the jury instructions i just knew that there was no way anderson shouldve been convicted. It turns out as i dug into it more the jury was out for 10 days before they returned a verdict of conviction. The company Arthur Andersen was destroyed immediately upon indictment. They represented 2300 publicly traded companies. They had 85,000 employees worldwide so 85,000 jobs were destroyed. The indictment had to be sealed for a week so the sec could work behind the scenes to avoid upheaval in the markets and then once the case went to the fifth circuit the fifth circuit affirmed without a problem, a firm with conviction. Finally the Supreme Court took the case. They actually took it pretty quickly by all standards and reversed it 90 because andersen did not have fair warning that his conduct was criminal. Witness tampering was not the appropriate statute to use and their conduct was not criminal at the time. And the jury instructions Justice Rehnquist wrote for the unanimous court, he said it was shocking how little culpability the instructions required. They had removed all elements of criminal intent from the jury instructions. The prosecutor primarily responsible for the Arthur Andersen indictment and conviction is now the head of the Criminal Division of our department of justice. Her name is leslie caldwell. The coprosecutor in the andersen case, and are weisman became general counsel Deputy Director of the fbi. He went on back from his days on the Enron Task Force after convicting andersen. They then turned their sights of the Merrill Lynch executives on wall street. They wanted to send a message to wall street. They viewed new york banker says wiseguys on wall street, Nothing Better than mobsters in suits. Nicer suits may be, really suits, whatever but that was the basic attitude. It was to bring down Merrill Lynch or the Merrill Lynch executives. The distraction of andersen gave them incredible power when they went to any other organization because merrill for example new that if merrill did not cooperate fully with the prosecution, that merrill would receive the Death Penalty that Arthur Andersen had just suffered. So merrill entered into the most egregious nonprosecution agreement i have ever seen. They agreed that their employees would say nothing publicly that disagreed at all from the task force view of the facts of the case. They agreed that the task force wanted to interview a single Merrill Lynch employee, a Task Force Attorney could be present. The department of Justice Task Force installed an overseer within Merrill Lynch who even reviewed the bills from the attorneys so we have to be careful how we describe what we were working on so as not to let the government know what that was. They named over 100 people as unindicted coconspirators in the enron litigation writ large which meant that everyone had to lawyer up. If their lawyers were smart at all they insisted that their clients plead the fifth amendment because if you didnt and you talked and you said anything that disagreed with the governments view of the case, you are subject to indictment for perjury and obstruction of justice. They reminded any potential defense witness of that threat daily. Some witnesses got calls during enron related trials, as many as three times a day, reminding them that they faced indictment if they got on the witness stand and testified and consistent with the governments view of the facts. So the Enron Task Force prosecutors, leslie caldwell, and are weisman, Matthew Friedrich catherine lomer shut down any access by the Merrill Lynch defendants to any defense witness. In fact our own Merrill House inhouse counsel Merrill Lynch in inhouse counsel was threatened with indictment after she testified in the grand jury her status was changed from subject to target of the investigation. So it even she when she took the witness stand for the defense, the lawyers didnt know she was going to do until the last minute was terrified. Mr. Wiseman sat directly in front of her taking notes the entire time she testified and they didnt give us any of the brady material or evidence favorable to the defense that the constitution required be given. In fact they told the court repeatedly there was no brady material in this case. So the four Merrill Lynch executives were convicted by houston jury. No surprise, their lawyers were like deer in headlights every time anything happened in the courtroom. The prosecution had witnesses who were quaffed rating with the prosecution under plea agreements that gave them extraordinary benefits. There are witnesses were the people who had actually stolen money within enron. Guess they were definitely some things within enron. They all testified for the government against people who had not taken any money. In fact as the District Court judge sent the Merrill Lynch employees to prison he said i realize you were just doing your jobs. The Merrill Lynch defendants did not take a pending from anyone. Merrill lynch made 775,000 on the transaction. The enron group made 53 million on the transaction. No one lost any money and there were no material misstatements to the market that would qualify them as a security fraud prosecution. So instead they indicted merrill defendants under the Honest Services theory of fraud which alleged that the Merrill Lynch defendants had conspired with andrew fastenau and ron cfo to defraud enron a fastenaus on the services. Yes. That would be completely laughable were it not for the fact that for Merrill Lynch executives could not get that indictment dismissed. If they take any money or property from anyone . Now, that is a traditional fraud. In fact fraud means basically stealing and really falls under one of the 10 commandments but got more competition than that. The indictment was something i had never seen the fourth. I did Extensive Research on it. I could not find a single case in the country are many state or federal court that served as president for making the conduct alleged in this case a criminal offense much less a federal criminal offense. There wasnt one. No problem. Send them on off to prison. The motion to dismiss the indictment for failure of defense denied. Request for particulars to tell us what the crime as we were supposed to have committed denied. When the fifth circuit got a request for bail appeal of the government argued there was no substantial issue for appeal, nevermind everything was the indictment to the jury instructions also. In fact i have never seen so many issues and a criminal case as existed in the Merrill Lynch enron case. Its going to be hard to condense that into something 50 to 100 pages from the fifth circuit to the site. Usually in a criminal case you are lucky if there are one or two good issues that might warrant reversal. We had so many in this case couldnt begin to brief them all. The fifth circuit denied bail pending appeal. The district judge denied bail pending appeal so the Merrill Lynch executives had to report to prison and voluntarily surrender. The judge to allow them to go to the person themselves to drive themselves to the prison as opposed to having them hauled from the courtroom in chains that day which is what the government asked for while it also asked for 24 years in prison for them. He gave them three to four years each and allow them to voluntarily report. All bail pending appeal motions were denied. I couldnt believe the fifth circuit wasnt going to grant them bail in the appeal but they denied rehearing also. Six years later, fastforward the ted stevens case has come along. Judge Emmet Sullivan very different from the judge we had in the Merrill Lynch enron case actually question the government when it said there was no brady. He started requiring them to reduce different parts of their investigatory materials and grand jury transcripts and fbi reports of witness statements. Each time they have to produce something it showed we should have been given that before. This is favorable to the defen defense. To the point that i met sultan made it clear he was going to dismiss the indictment against ted stevens. At that point we had a new attorney general. His name is eric holder and he said he was going to clean up the department of justice. So he came and, think it was six weeks after he was was appointed, he came in and dismiss the indictment against senator stevens in the interest of justice. I thought haole a, we are going to make some Real Progress here. Now would be a good time for us to go talk to the department of justice and let them know what all has come to light in our case. We have finally gotten the notes of thousands of hours of interviews of andrew fastenau. He had said there was actually no crime in the Merrill Lynch case either. Even he had agreed that there was no guarantee from enron that would have made the transaction a legal. The entire thing that the governments case was premised on. He said that didnt happen. Hes said they had proved their case using hearsay testimony of fastenaus subordinates. There was even one of fastenau note that explained it. He said one thing to his subordinates and another thing to the folks at Merrill Lynch which is like our defendants had said, we only knew what he had told us in a fiveminute phone conversation. So we thought that was a rather significant development. He was the governments star witness against skilling and lay and he was supposedly the guarantor that have made this transaction illegal from the getgo. We got nowhere with that either. We did calm and talk to the department of justice. We were met with bristling hostility and nobody ever responded to our allegations on the merits. So we are back in the District Court. The fifth circuit finally reversed the convictions after my client had spent a year in prison. They were first 12 out of 14 convictions against all the merrill defendants. They acquitted young bill views of 32yearold assistant at Merrill Lynch who had participated in the deal. Acquitted him completely. He had served eight months in a maximumsecurity transfer facility in oklahoma 600 miles from his young family. Our other defendants were not given lightduty either. None of them were in prison camps which i assure you most are not anything you would think of campus being. They were at least in a higherlevel security than that. With each level of prison security frankly comes additional threats to your own personal safety because its the least violent criminals that are in the lowest security facilities in the more violent as you go up the ladder. My client shared a cell with 13 people for the first part of his sentence. One of those people was set on fire in the middle of the night as he slept in his bunk. There are other prison stories that are not in the book that i wont use time on today. But, there was a lot that they had to deal with. Fortunately my client came out fairly well. He is a very affable guy. Theres a very poignant story in the book of some things that happened in his life before he went to prison that basically left him with an attitude of gratitude. So he went to prison with the idea of helping other people, teaching people to read which he did, teaching other inmates how to understand personal finances. He then had his wife send him materials to explain to them how to open a bank account when i got out, how to manage basic household needs and budgeting, things like that. He said the prison system itself is a farce when it calms to any sort of rehabilitation or education for people. And theres another story, another heartwarming story from his prison that i will leave to your reading in the book also. After they were released from prison and after judge sullivan had dismissed the stevens indictment, a third team of prosecutors finally produced evidence that accidentally, they didnt really know what was on the disc. They knew there were documents on the disk obviously that they didnt realize the significance of those documents. They gave me a disc that contained yellow highlighting by the original prosecutors of evidence that was favorable to the defense that they could personally identify as favorable to the defense before the first trial. They had omitted the key words and information from that when they gave us a very limited summary of what the actual participants in a transaction had said. One of the statements was just flatout false and misleading in the summary of catherine lomer who became chief white house conference only left recently had sign. She had said that jeff mcmahon who was treasurer of enron at the time had also given a guarantee to the Merrill Lynch defendants and he had said he did not recall in the fourline summary that they gave us of his statements. It turns out there were multiple pages of his statements to mull to pull federal agents that consistently said mcmahon said there was no guarantee and that mcmahon also said he was participating in the fastenau phonecall that was so crucial to the case in facelle not given a guarantee either. So here we have evidence that both purported guarantors, the only alleged crime in the case, both of alleged guarantors who despised each other agreed long ago before the case was even indicted that there was never a guarantee me to the Merrill Lynch executives in this case. So for Merrill Lynch executives spent a year in prison on an indictment that made up the crime while the prosecutors had yellow highlighted and hid the evidence from the firsthand participants that said there was no criminal activity in this case at all. Those prosecutors became chief white house counsel, general counsel Deputy Director of the fbi. Matthew trader became the dash who rushed to and died general ted stevens enunciated the longestserving republican United States senate only to have that indictment dismissed after stevens lost his senate seat for the same kind of withholding evidence that happened in the Merrill Lynch enron case. What can we do about this . There are things that can be done a be done another one through them quickly. I try to remind everyone as i speak on the radio we even have to remind ourselves that there is a perception of innocence. Everyone is entitled to a presumption of innocence. We all think that when someone is and i did of course he did it. A grand jury found probable cause to believe they did it and we just believe that someone indicted and they got to be guilty. We have got to remind ourselves, i have to remind myself everyone is entitled to the presumption of innocence and the government must be held to his burden of proof to prove guilt beyond a reasonable doubt. They must be held, though when they do not produce evidence favorable to the defense so what can we do in that regard . Judges can enter what is called brady Compliance Orders requiring the government to produce that evidence on a set schedule so defendants have it in time to prepare for their defense which is what the Supreme Court requires. Judges are now starting to do that more often. Judge Emmet Sullivan started doing that after report of the investigation he required came out and it was identified because he had not entered a specific border, the prosecutors could not be prosecuted for contempt. They couldve been disbarred so the Bar Associations must be commanded to step up and deal with that. I am hoping that there is a public outcry in response to the book to urge Bar Associations to be more responsible. And i know that there is going to be legislation introduced soon called the prosecutorial integrity act that should receive bipartisan support. There was an effort among the publication of the report on the stevens investigation that judge sullivan had ordered, a bipartisan effort started by senator Lisa Murkowski from alaska to introduce the fairness and disclosure evidence act. It received support acrosstheboard. The aclu, the National Chamber of commerce, the National Association of defense lawyers, the american Bar Association, every state Bar Association i read about, every Major Legal Organization and country supported fairness and disclosure act. The only two posted 704 federal prosecutors and ironically named the department of justice. Yes. So theres going to be an effort to introduce the prosecutorial integrity act which carries many of the same requirements of production on the government and attaches penalties for their failure to produce the fairness and disclosure of evidence that would require. So im going to urge everyone to support that legislation. That means really getting more active without contacting their congressman and senators and urging them to do something about it. If judges will start entering brady Compliance Orders and reversing criminal convictions which is i guess what its going to take to get their attention referring things to the Bar Association, a letter demanding action on it and citizens start serving on juries with an idea of a single juror can stop an unjust criminal conviction. You can tell if the judge is running a rogue road in his courtroom or not. Some do when railroads. You will see that the juxtaposition with judge in houston with judge Emmet Sullivan in the stevens case in the book, and it is very distinct and unmistakable. The difference to Judicial Attitudes can make and that we have judges like judge kozinski two was willing to reverse a criminal conviction and hold the government accountable for its conduct. Its all about our participati participation, fundamental fairness and Holding Prosecutors accountable for their misconduct. It wouldnt take long to clean up the system if everyone did their part. Thank you. [applause] thank you sydney. We are now going to turn toward guest commentators in their first commentator is also well qualified to address the subject of prosecutorial misconduct. Over the course of his career he has served in the executive branch, the legislative branch, private practice and not academia. He is presently the dean of the university of Baltimore School of law. Before that he was appointed by president obama to a highranking position within the department of justice. He served as the assistant attorney general under eric holder for legislative affairs. In that role he represented the Justice Department all legislative and oversight matters before congress. Earlier in his career he served as the chief counsel to senator harry reid. Before that he was chief counsel to senator ted kennedy. He actually began his career as assistant District Attorney in new york city new york city so he also brings prosecutorial experience to our discussion. Please welcome mr. Ron weich. [applause] i would like to thank him for that introduction and think the Cato Institute for inviting me to be here. These are very important issues that sydney has raced in her book and im very pleased to be part of the discussion. I want to start by commanding Sydney Pollack for writing this book. I said to her when we were in the antianteroom that there are lots of lawyers who seek justice in matters they have handled and they deal with it by going out and what sydney has done in writing this book is taking her passion for justice and putting it out there for the world to see and to judge and it requires great discipline to write a book like this. Its a very detailed book, 400 pages and she deserves great credit for bringing her concerns to a wider audience. Having said that i want to say my reaction to the book is somewhat mixed. I think that they are our overall themes in the book that i agree with and i will speak about those at the same time i find her indictments if you will of the prosecutors that and the case is that she handled, the prosecution of mr. Brown to be ultimately unconvincing and i will explain why i reach that conclusion. Let me speak first about the overall themes that i very much agree with. Sidney highlights in the book and in her opening remarks here the tremendous power of prosecutors. The frighteningly unilateral almost Unchecked Authority of individual prosecutors to ruin somebodys life, Justice Jackson wrote about the obligation of prosecutors to use their power wisely and mindful of the fact that a prosecutors obligation is to convict but to do justice. That kind is sent to miss him is discussed in engravings all over the Justice Department and sometimes those are words and their art pieces. Before we get to the individual abuses let me say in general i think that prosecutors i have seen in my career but that the state level in the federal level are generally honorable. I think its possible to paint with too broad a brush understanding this problem to be sure. There were abuses that we found that were documented that but in my experience many many prosecutors are honorable men and women who seek to do justice and the public interest. Nobody is getting rich doing a prosecutor. They are doing it because they believe its the right thing to do and its commendable work for those who do it well. That said, and i did say the power of a prosecutor is scary even if not abused. Just the judgments, that individual prosecutors get to make it i graduated from law school is a very young man. I was about 24 years old and i was in the manhattans d. A. Office and i had the ability because new york state has a system come, at the time in the system of predicate was minutes mandatory sentencing law that enabled me to decide if someone was going to prison for period of time because i could refuse to allow a plea to a lower grade of offense. I was disturbed by that. I had the power and i didnt think i should have the power. I had supervisors and colleagues who i could talk to and ultimately i felt i had too much power. As i went on to the District Attorneys office and gave more perspective i was disturbed by it enough to leave the office and go into a policy role. Later my career i found myself in the Justice Department again i saw prosecutors who i felt had too much power. Some of them were overzealous in exercising that power. What i think needs to happen in some other reforms that sidney mentioned are solely on target. There need to be more checks, internal checks and external checks on individual prosecutors exercise of discretion because nobody should have unilateral power of essentially life or death of individuals. A second theme that i very much agree with that sidney highlights is the issue of unduly lengthy sentences. The cases she talks about her whitecollar but the problem extends throughout the criminal justice system. Child pornography cases where there is then such hysteria about that unfortunate conduct that people go to prison for decades for viewing certain material and individuals who suffer the worst punishment in the world today they lose their job and are forced to stand in front of a court and face the consequences. Those people are then sent to prison for years, even decades and people like Jeffrey Skilling received a 24 year sentence. When i was in the Justice Department i received the press releases of individual cases in the press release and i came to realize that every single sentence that i saw was about three times too long. 30year sentence is turning into 10 tenyear sentences and threeyear sentences and people for a couple of years didnt need to be there at all. Thats disturbing and during the issue of prosecutorial power and sentencing is the issue of mandatory sentencing which prosecutes more power over individuals and judges dont have the power to check. So efforts to fight mandatory sentencing and im proud of my sentencing angelise effort that is getting traction now in the congress and the congress in sync commission and the Justice Department to deal with those grievances. Finally prison conditions. As highlighted in sidneys book. Her client had a fairly tough time the year he was in prison and other defendants, the prisoners face this. Everyone says the federal prison art camps, club fed. Its really not like that. Any deprivation of liberty is serious that the conditions on the medical care in any prison including federal prisons are deplorable and i should be addressed. Having said all of those good things about the book let me say why i think i find sidneys points unconvincing. She tells two stories. Two cases parallel to each other. One is that ted stevens prosecution where there is no doubt and it is welldocumented and widely accepted that there was prosecutorial abuse that led to a gross miscarriage or of justice. The presiding judge and senator stevens trial sullivan found that. He ultimately appointed a lawyer to do a comprehensive independent review that documented every aspect of the misconduct. As sidney said attorney general holder ultimately dismissed the prosecution dismissed the indictment on his own. Sidney in the book questions whether attorney general holder did that only because he knew judge sullivan was going to do it so why not. I can tell you, i joined the Justice Department in my role several weeks after attorney general holder made that decision. I heard him talk about it and i saw the effect on the department. He was very profound for the attorney general of the United States to dismiss that prosecution is when if judge sullivan was going to do it on its own. For the department had itself to take that step sends an Important Message to prosecutors and then it was a serious effort to reorient the prosecutorial prosecutors to disclose exculpatory socalled brady material. Thats one story, the stevens case. The secondstory sidney tells us about her client jim brown was a Merrill Lynch executive involved in dealings with enron corporation. Sidney alleges very serious whipping prosecutorial misconduct in that case and i dont in any way question her since saturday and she she lays out her argument angry deep great detail in the book but unlike the stevens case where the adjudication found prosecutorial misconduct in the brown case, the adjudication found exactly the opposite. That is the Federal District court judge presiding over the case rejected the arguments. The fifth circuit which i must say as a sidney points out dismissed many of the accounts of the indictments but not all of them. Nonetheless rejected the claims of prosecutorial misconduct and that judgment was an appeal to the fifth circuit where a panel of independent judges rejected it. The Supreme Court denied served, denied certiorari and sidney says three separate state Bar Associations declined to find these prosecutors had engaged in misconduct. You know, i dont know what to say. We have serious allegations by one side in the dispute. As i read in the book i kept wanting to ask the other side what is your side of the story . We didnt get a lot of that but we know there was an adjudication or rejected the allegations. Its hard to come its complex. These whitecollar cases especially the enron case involved Financial Transactions in the procedural history of the case over many years because many complex. Its hard to judge it independently but i know that we have only one side of the story. Theres another aspect of the book that is of concern to me. The style that sidney uses as she recounts the litigation, she essentially provides transcripts of the arguments especially in the District Court under the fifth circuit and tells you what both sides are saying but she interrupts to kind of ridicule the arguments and indeed the individuals making the arguments on the other side. She says kathy remmler seething and struck like a viper and Matt Friedrich was smart failing to suppress his grin. A younger prosecutor named stokes she describes is really stupid beyond hope. She talks about Justice Department supervisor, is that spencer . Okay, mr. Spencer. She says the Justice Department supervisor named rita had an easy smirk and an affinity for androgynous attire which i really thought was a low blow to comment on her clothing. She ridicules the judge who presided. She never saw a judge work so hard in the face of contrary law to make sure the government would win and in another point she calls the judge clueless. As for the Appellate Court she questions whether they might have been influenced by people who help them become judges, become confirmed or they were intimidated by the high rank of the prosecutors whose conduct was being challenged. Beyond these characterizations she of course levels the serious allegations that there was not just questionable judgment by the prosecutors but to liberate suppression of evidence and perjury and you know thats a tough allegation to make in the face of adjudication to the contrary. I know one of these prosecutors. Kathy remmler was a colleague of mine in a law firm in the late 90s. We work closely together. As a colleague of hers in the Justice Department i worked with her when she became white house counsel. Shes an aggressive person. Shes an ambitious person sim and as many of us are in washington. She is fundamentally an honorable person and i dont believe she is capable of the conduct that has been alleged here. I dont know the other prosecutors as well but again i fall back on adjudication here. Thats our system. When these disputes are presented in partial federal judges with the protection of lifetime tenure review them. Sidney finds the review inadequate and questions motives of people making that review. I still believe in our system, that resolves these disputes in that way. So in and i come back to where he started, applauding sidney for writing this book. I think its a contribution to the discussion. Im not persuaded by its central thesis. I reject specific allegations about you know my former colleague kathy remmler and others. I reject sort of wholesale allegations about corruption of the Justice Department, but i appreciate sidney were giving us the opportunity to pop talk about these important issues. Thank you. [applause]. He said i wish i could say that prosecutors and professionalism is the exception. That this prosecutors propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish to the core of prosecutors around the country but that would not be true. They had reached epidemic proportions in recent years. Just with that one paragraph there with a conversation of prosecutorial misconduct including the New York Times quoted the judge to talk about we have a problem in this country with prosecutorial at six. He is spoken here at kato many times. Please welcome him back. [applause] i do want to talk about another publication of a peace that my law clerk can i wrote for Kato Institute it is called you to are a criminal. Its picks up on the point that there are so many laws out there so many are so ambiguous the chances are very good will live the federal prosecutors knew about it to find out things using electronic data but it could get you. The this is a danger the backbone to the point that sydney is making with a strong prosecutor to take the large body of law, and this amorphous body of law and go in for reasons never could not good to focus on individuals that is said danger but now let me talk about prosecutorial misconduct because we have those lawyers and non lawyers to understand these six divisions. In the session by the United States Supreme Court has come up from any decisions in terms of procedural protections. People say we are all equal but brady id like miranda because he confessed to protect the innocent those who have been charged with the crime but the government has in its possession of reasonable doubt for the reason is because they have such itd vantage to gather the evidence if it is the White Collar Crime long before anything is going on. They have back access to witnesses in electronic records and if it is a Violent Crime bill looked at the crime scene to find out there is an investigation but then it is in the governments possession it is vital for the government if it has evidence to give it up to make it a fair fight. Nobody says people should go free who are guilty but with the government knows what contradicts what the star witness says it is only fair or appropriate not to send someone to prison. We believe injuries land 12th tee ball acting together to find somebody guilty beyond a reasonable doubt to give them the exculpatory evidence. And undermines the ability to make a fair5oa in an ted stevens case nobody said this. Whether Justice Departments the week had that evidence that was not presented. The fbi agent blew the whistle with the fbi agent pointing of fingers at the prosecutor reassess they knowingly withheld evidence. So read the book and find out with a huge miscarriage of justice to never have been indicted or convicted or lost the election no doubt about it. All evidence was available. Just read the book. Now the Justice Department when they found out he is thought they would run away and hide in shame. What do we do . Because the attorney general at that point i would be embarrassed. But they said no big deal. No big deal so they hold on to the conviction. Oh my god. We are so sorry. But then the Justice Departments the point of the Justice Department lawyers and it was a huge misconduct when the attorney general decided to dismiss. At that point it was unthinkable. No doubt about it. I commend the attorney general for doing it earlier after the case was indicted those were disciplined. Nobody got fired. Few suspensions but given the enormity is hardly a us slap on the rest. Look at page 404 with the book. This is not highlighting with the witnesses that go contrary to the evidence of the government. There was no misconduct was not a bigger deal any way. But they did was to reverse convictions it was not the case where they fail to follow it was not a president ial prejudicial. Let me tell you about the case i had 10 years ago. With that case the government had 10 or 12 witnesses who were in the United States illegally and some said no. They deported most of those witnesses. It kate the the case came to us. They started to deport witnesses with a criminal investigation. [laughter] but they said send back the witnesses. And those colleagues that i respect. Said it would not have made a difference anyway. It was so painful and excruciating that the government filed a hearing. In this case it was the Winning Party to ask us to dismiss and reversed the conviction so they could dismiss. I will take my two minutes. [laughter] ten years later i get the same case that of the same district. Exactly the same thing happened. They coerced the witnesses so i stand there and ask the lawyer for the government, what happened . I thank you yourself argued the case. He said that was vacated it has no value. [laughter] this is not true. It is not a joke. So without telling them they have to do this they have no sense of responsibility and did it again so we have to write an opinion by god we stood there. By request you dont do this again. The fact of the matter is lawyers to go bad will continue but unfortunately judges there is the case that of the d. C. Court of appeals and they cite to me so must me a good opinion. [laughter] thought specifically with that trial judge to compel the government and then in mississippi he dismissed the indictment because of the violation. It is far too rare these things dont come up often enough. If judges and prosecutors and supervisors dont take stern action then we cannot have confidence in the judicial system. Thank you. [applause] before we open up and take questions i will give sydney two minutes to respond to anything then we will take your questions. Just a few points. One of the biggest violations the defense lawyer does not know what he does not know. There is simply no way to know because only the government does. It makes it extremely difficult to uncover a brady violation in the first place. But the additional government message that it did not get the ted stevens indictment only points to the decision of the ninth circuit to the two cases of arriving at the same prosecution with the same witness for the same prosecutors. This does not provide the same evidence to the defense they hit also with the stevens case from the government refuses to dismiss the indictment persuaded the District Court judge in alaska it does not matter that they had hidden the evidence to completely undercut the primary witness. And the district judge agreed with them just like in houston. The ninth circuit reversed and said yes it certainly did matter and the judge wrote a blistering concurrence that said the governments attitude was completely unacceptable she would have completely and dismissed the indictment and the of majority of the panel remanded for a new trial. I am not sure what happened with both cases they may have entered pleas but i dont think the Justice Department learned anything from that. Also the government is still trying to alter the physical role said all the states to include whether the evidence matters are not so if they have to provide evidence or not in the first place for it of their allowed to decide what happens we are in big trouble because to them anything contrary to their view with a wink or nod they use that language in ted stevens and Merrill Lynch case of the defendant said something completely exculpatory then it was said with a wink and nod to cover his ass then it was not true him anything works to their benefit. Everything is to the governments benefit so it is not material to the defense. We have to have ethical rules the require production of all evidence that all evidence favorable to the defense the Supreme Court has said the prosecutor has any question at all then it should be produced if you have to ask questions it should be produced just give it to them the only way to ensure the trial is fair. In terms of the of credibility and accuracy of the material i upload all the supporting documents you can look at the actual documents themselves and if we can get a full investigation to terrorize the department with a special law prosecutor to look into the department of justice to of gotten the rest of the exculpatory evidence i would be impressed by that you can read the book and see the documents i would say to my law license on the accuracy of everything in the book of wonder if she would do the same. Some emigre have three requests. Please wait for the microphone. We need to get to as many people as possible. I have been puzzled from day number one why did the Bush Administration indict ted stevens . How did that happen . The president did not indict but the prosecutors do and the Political Forces should not weigh in on the merits of the prosecution and there was cause to investigate they proceeded in a deeply flawed way that would have been very helpful to senator stevens in his defense he should not have been indicted over convicted but the Bush Administration did not indict the Attorneys Office was a responsible for bringing the indictment. The fact that senator stevens was indicted shows the Republican Administration led by the republican president indicts so in principle it speaks well that in tax politics should not play a role in the prosecution and this is why it to me it does not matter who the attorney general was. and things like that. But a new attorney general making changes the project on government oversight has released a report based on the freedom of information act request identifying 450 instances of prosecutorial misconduct over the last decade. Attorney general told the refuses to release the names of those prosecutors. The two that were found guilty by the special prosecutor from intentional misconduct still in the departments assistant United States attorney and once served one day of a suspension according to the report but otherwise they appealed the rulings and of course, the internal review process of the department of water down the findings and its own report and i forgot what level found them responsible but assessed 40 days suspension one was 14 days one of them served one day otherwise it has been appealed and lost in the quagmire at the Justice Department. The attorneygeneral first of all, i would fire all of them tomorrow to let the civil section litigate. I think it is completely unacceptable for that privilege to walk into a courtroom in the United States of america to stand in a federal judge to represent the United States of america. It is completely unacceptable to lie to the court or the jury and with all the evidence. And other tactics and hand the defense has to call their witnesses and whether prosecutors get wind of who they will be then they quietly approached the witnesses and threaten them with prosecution if they agree to testify for somebody heading for trial. It is just shocking. We learn from your book is more common than people realize but did it happen in the two cases you rightabout in detail . Can you tell us more about that tactic . All the defense lawyers were screaming about it. But we finally got accidentally with that information he was threatened multiple times a day for his role of the Merrill Lynch enron transaction call all the activity depended that was during the trial to keep him off the witness stand he was never indicted my client served one year in prison for a transaction that was perfectly lawful and for which mcmann was never indicted to make the guarantee that my clients served one year in prison. We knew when we got the highlighted notes why they had indicted mcmahon the if maybe we had gotten the notes then but they had no participant was the only evidence but yes that tactic is way too common. I was given us 30 days intends to jail yesterday in Alexandria Court it was suspended for fighting for my rights of due process with the jurisdiction americans are unaware how corrupt our system is that the boards all pat each other on the back to take care of criminal actions good judicial system polices themself and there is nowhere to go. I asked for a trial by jury and was denied provide gas to go in front of a grand jury and i was ordered by the Supreme Court justice to be allowed to go to the grand jury but instead my witnesses were denied access to the grand jury in another courtroom and my file has been evidence senate but you have to have a question. So what can we really do to get the government or somebody that is at arms length to look into cases like this . Where do you go . That is the sum of why i had to write the book. [laughter] there are solutions. North carolina had a solution you remember that case with the duke lacrosse case the prosecutor that eventually was disbarred but carolina went further to pass a statute to for open discovery basically to turn the file over. This is not a trial by ambush but a system of due process the defendant is entitled to know and theres usually plenty there but a lot of times the prosecutor may not understand the prosecutors job is not to figure out what is good for the defense that we have that piece of legislation from the ninth circuit by Alex Kozinski so i am proud but of course, senator stevens from alaska suffered so with that fairness and disclosure of evidence act you pass laws that prosecutors must live by them then if you shine a light wood is in the prosecutors files youll have a much better chance to count on people being honest or fair. I would suggest we have legislation pending. To what extent does the criminal take this more serious with the powers of discipline to the extent they may not be responsive flooded it is the role of the Federal District court to discipline a short write dash attorneys i know in the Central District case dealt with criticizing judges in that circumstance. If the state bar authorities are not much help but what about the justices themselves . That is a great point. I drafted a brady Compliance Order i will upload to the web site that is one of the steps the Federal District judges can take. They can decide the lawyers must practice in their courtroom and they have authority i dont know the criminal defense is putting any pressure i have no information on that. The tip of the texas court of inquiry that is now the subject of a book he has written he spent 25 years in prison accused of prison wall the prosecutor headed to the bloody bandanna evidence the cave the state judge of course, the dna completely exonerated Michael Martin with the Innocence Project the texas bar at a special court of inquiry into connective god to get that done and resulted in this state court judge being arrested in open court and he only served 10 days. If you deliberately withhold evidence you serve the bank of the time the your victim wrongfully spent that could nip it in the bud. Put with those prosecutors you expect them to tell the truth detector lee if you are a government prosecutor and most judges have a hard time to believe the chaqueta three is going on. So they tend to to be less likely to look for it or infer the something is misconduct. I had a case 20 years ago where the prosecutor made statements to the court so he foolishly argued the appeal so he disclosed something he did not tell the judge. I was an assistant. So we would send the case back. To make ted decision a very fine appointee does not matter. A very experienced judge was the state court judge fort many years but the case came back and he could not believe that a answer i got. He was so convinced that possibly could then be the answer he did not ask the question. Even though it said ask him this question. So the judge was so shocked he dismissed the indictment with prejudice. I think most judges cannot believe this is calling on. I dont think they believe what is going on. We have run at a time to everyone here is invited to the luncheon after words