Transcripts For CSPAN2 Book Discussion On Licensed To Lie 20

Thats the second part of my answer to you. Thank you. [applause] did i go on too long . [laughter] finish [inaudible conversations] youre watching, booktv. Television for serious readers. You can watch any program you see here online at booktv. Org. And booktv continues now with former federal prosecutor Sidney Powell. She talks about prosecutorial misconduct and what can be done about it. This is about 90 minutes. [inaudible conversations] good afternoon and welcome to the Cato Institute. My name is tim lynch, im the director of catos project on criminal justice. And today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today, Sidney Powell, has just written a new book entitled license 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. Now, before we get to our panel of experts, i want to take just a minute or two to lay something of a foundation for the discussion thats going to follow. But before i do that, let me ask those of you who came with cell phones if youd just take a moment now to quickly double check and headache sure that they are make sure that they are turned off as a courtesy to our speakers. Yeah. It includes our panelists. [laughter] okay, thank you. The first more point that i think these to be understood is that there has been 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, theres also been an explosion in the number of federal crimes that are on the books. We know that there are about 4,000 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, were talking about tens of thousands of more regulations that can be enforced through our criminal system. I thought there was a telling moment at the Supreme Court just a few but years ago 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 think it was Justice Stephen breyer. And Stephen Breyer said, just a second. I think theres about 200 million americans in the work lace, and according to place, and according to your definition of the Honest Services criminal statute, about 150 million americans fall on the wrong side of that line. [laughter] and this was a point where the attorney from the Solicitor Generals Office kind of hemmed and hawed. He didnt really deny the point. Now, consider that for just a moment. In the eyes of the federal government, we have 150 million americans that they consider to be criminals. There are and 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 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 an expression when we were growing up, it said something like, you know, lets not make a federal case out of it. But 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, lets say, 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 that are trying to defend them. As a matter of fact, their own attorneys often advise them to plead guilty even when they have met with their client and are convinced they 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. 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 and their version of events. So these are some of the robs that problems our panelists will be addressing. Our format is going to be straightforward. Our guest author is going to go first and speak on the thesis of our 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 adjourn for a luncheon upstairs. Okay. Sidney powell served in the department of justice for ten 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. Shes been the lead counsel in more than 500 appeals in the federal courts, and for the past 20 years shes been this private practice representing clients ranging from federal judges to international corporations. Shes been with repeatedly rated by her peers as one of the best lawyers in america, so she is well qualified to discuss prosecutorial ethics. So would you please welcome the author of license 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. Its very much appreciated. And thank judge kaczynski for joining us and also ron. This is a very auspicious occasion. Be 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, because 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. The Supreme Court held in brady v. Maryland that its a constitutional obligation, fundamental to due process. And then as a racket call matter practical matter, prosecutors have all the cards. They are usually or their representatives, the agents, the police officers, whoever, are the first people on the scene if there is an immediate crime, or theyre 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 had 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, to find it interesting and be held by it so that you can continue reading all of it. But it is all true. It con trains real contains real transcript excerpts. One person recently asked me if i had embellished. He said he was giving me about 10 leeway to embellish for the sake of making it interesting, and i said i hate to tell you, i actually toned it down. Its not em 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 our great Supreme Court justices, and as attorney general he gave a speech on april 1, 1940, that has been enshrined in legal history. He talked about the special role of a federal prosecutor and how important it is for that prosecutor to seek justice and not convictions. He explained that at its best a prosecutor is one of the most beneficent 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 so 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. Youll 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 a rubber stamp for prosecutors. Theres hardly a prosecutor in the country who couldnt get an indictment against a potato out of a grand jury if thats what they wanted to do or get a case no billed if thats what they want. So the checks and balances need a 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 ten different United States attorneys in three districts across the country over a period of ten years it used to be that judges could trust the prosecutors to tell them what the law was and to get the facts straight. No u. S. Attorney i ever worked with would have tolerated for two seconds the behavior that i saw that caused me to write the book. They all were adamant that we do it right, that we seek justice, that we be fair and that we carefully exercise our discretion to prosecute only cases that we had all the evidence and were sure the person was guilty. We didnt have time to go, or interest, in going to look to find something to pin on someone. That was not our job. No 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 four offenses assuming we had the evidence racked up to prove all of those beyond a reasonable doubt with no question in our minds that that was what should happen in the case. And we produced evidence favorably to the favorable to the defense that the Supreme Court called brady evidence. That was our job. I have stood in the United States court of appeals for the fifth circuit and confessed error when the trial lawyers got something wrong. I would tell the fifth circuit, we screwed that up. In fact, if you run through the westlaw system the word botched, you will find a quote in a footnote of a decision by Irving Goldberg where he quotes me as explaining that the dea agents botched it. I think thats the only time the word appears in westlaw. [laughter] and the quote was accurate. I havent run that search in a while, maybe i should do it given 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 had 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 [laughter] my youthful countenance belies that alone, so im going to keep that secret. But throughout my practice i have bragged on and applauded and loved the fifth circuit. For it to have been given the 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. And then when the Bar Associations for these respective lawyers also failed to do anything about it, i felt like i had to speak up. I know im not the only lawyer that could have seen this kind of injustice. As judge kaczynski said in his dissent in United States v. Olson, there is an epidemic of brady violations abroad in the land. It is a significant problem, it affects the fundamental fairness of all our proceedings, and if the prosecutors can do what they did to the people discussed in this book who are, were Merrill Lynch executives, one was a United States senator, others were other business executives, all of whom had led stellar lives to the best of everyones knowledge, worked in their communities, contributed to charities, done everything right and believed in the system, to have prosecutors literally make up crimes against them and then be able to to push those through the system to conviction and imprisonment and have Federal District judges in houston and then the fifth Circuit Court of appeals not get it right was 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 theyve suffered, and everybody goes, oh, well, you know, he was a convicted felon. So i just felt like it was time that some lawyer 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 around. Or not to. It turns out people are paying attention, and so i thank each of you for being here to pay that attention to this issue. Because it is so important. And there but for the grace of god go think one of us. If they can do to what they do what they did to these people to ted stevens, to four Merrill Lynch executives from wall street to houston to 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 we filed against the texas lawyer like a superball. I mean, it practically came back by return mail even though it was written by bill hodes, the coauthor of the law of lawyering, and considered one of the top three legal ethics experts in the country. It was a 30page dwreefns with numerous citations to all the ethical rules and citations to cases, and a definitive explanation of the facts that showed aggrieve bl offense and the fifth circuit opinion which found that, yes, the prosecutor suppressed evidence favorable to the defense, but it didnt matter. So when the texas bar bounced that, i actually thought about sending them my law license. I havent done that because a number of friends urged me to continue practicing, which im not sure i can do, but im still working on that possibility. And then we also filed with the new york bar against Andrew Weissman and the d. C. Bar against katherine [inaudible] the d. C. Bar kind of swept it under the rug. The new york bar, weissman was general counsel to the Deputy Director of the fbi. So so the t. Of justice was 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 official responsibility. Yes, you heard that right. The department of justice was defending weissman, and the new york bar punted it to the department of justice to decide. Well, you can pretty much figure out how the d. Of justice decided 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, said, okay, youve 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 of any number of high profile prosecutions. It tells it as a 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. So there is a very human story that runs throughout the book of my client in particular, some of ted stevens and some of one of the prosecutors, maybe more of the prosecutors than just one. It tells the story of the Arthur Anderson debacle. Most everyone thought Arthur Anderson was hour write guilty. I horribly guilty. I have to confess that i also, as soon as i started hearing about the enron disaster, i knew the ramifications on 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 orr new anderson Arthur Anderson case when he asked me to consult when their reply brief was due in the fifth circuit. So theyd already filed 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 the reply brief filed. The report was massive. Fortunately, they had a megastaff to dive into the record at the time. But it didnt take me long to look at it to wonder why the indictment charged what it charged. The actual offense against anderson was alleged as witness tampering. Which requires an element that i couldnt figure out how they were going to prove. And then when i read the jury instructions, the prosecutors had persuaded the District Court judge in houston to alter the pattern jury instructions. Pat everybody instructions pattern instructions are approved for every circuit for many offenses. Its going to be affirmed on appeal. When judges deviate from the pattern instruction, i mean, that aa loan raises any alone raises any number of 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 should have been convicted. Turns out as i dug into it more, the jury was out for ten days before they returned a verdict of conviction. The company, Sidney Powell<\/a>. She talks about prosecutorial misconduct and what can be done about it. This is about 90 minutes. [inaudible conversations] good afternoon and welcome to the Cato Institute<\/a>. My name is tim lynch, im the director of catos project on criminal justice. And today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today, Sidney Powell<\/a>, has just written a new book entitled license 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. Now, before we get to our panel of experts, i want to take just a minute or two to lay something of a foundation for the discussion thats going to follow. But before i do that, let me ask those of you who came with cell phones if youd just take a moment now to quickly double check and headache sure that they are make sure that they are turned off as a courtesy to our speakers. Yeah. It includes our panelists. [laughter] okay, thank you. The first more point that i think these to be understood is that there has been 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, theres also been an explosion in the number of federal crimes that are on the books. We know that there are about 4,000 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, were talking about tens of thousands of more regulations that can be enforced through our criminal system. I thought there was a telling moment at the Supreme Court<\/a> just a few but years ago 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 think it was Justice Stephen<\/a> breyer. And Stephen Breyer<\/a> said, just a second. I think theres about 200 million americans in the work lace, and according to place, and according to your definition of the Honest Services<\/a> criminal statute, about 150 million americans fall on the wrong side of that line. [laughter] and this was a point where the attorney from the Solicitor Generals Office<\/a> kind of hemmed and hawed. He didnt really deny the point. Now, consider that for just a moment. In the eyes of the federal government, we have 150 million americans that they consider to be criminals. There are and 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 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 an expression when we were growing up, it said something like, you know, lets not make a federal case out of it. But 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, lets say, 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 that are trying to defend them. As a matter of fact, their own attorneys often advise them to plead guilty even when they have met with their client and are convinced they 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. 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 and their version of events. So these are some of the robs that problems our panelists will be addressing. Our format is going to be straightforward. Our guest author is going to go first and speak on the thesis of our 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 adjourn for a luncheon upstairs. Okay. Sidney powell served in the department of justice for ten 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. Shes been the lead counsel in more than 500 appeals in the federal courts, and for the past 20 years shes been this private practice representing clients ranging from federal judges to international corporations. Shes been with repeatedly rated by her peers as one of the best lawyers in america, so she is well qualified to discuss prosecutorial ethics. So would you please welcome the author of license to lie, Sidney Powell<\/a>. [applause] thank you all very much. Thank you, tim, and i want to thank the Cato Institute<\/a> for hosting this event. Its very much appreciated. And thank judge kaczynski for joining us and also ron. This is a very auspicious occasion. Be 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, because 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. The Supreme Court<\/a> held in brady v. Maryland that its a constitutional obligation, fundamental to due process. And then as a racket call matter practical matter, prosecutors have all the cards. They are usually or their representatives, the agents, the police officers, whoever, are the first people on the scene if there is an immediate crime, or theyre 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 had 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, to find it interesting and be held by it so that you can continue reading all of it. But it is all true. It con trains real contains real transcript excerpts. One person recently asked me if i had embellished. He said he was giving me about 10 leeway to embellish for the sake of making it interesting, and i said i hate to tell you, i actually toned it down. Its not em 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 our great Supreme Court<\/a> justices, and as attorney general he gave a speech on april 1, 1940, that has been enshrined in legal history. He talked about the special role of a federal prosecutor and how important it is for that prosecutor to seek justice and not convictions. He explained that at its best a prosecutor is one of the most beneficent 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 so 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. Youll 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 a rubber stamp for prosecutors. Theres hardly a prosecutor in the country who couldnt get an indictment against a potato out of a grand jury if thats what they wanted to do or get a case no billed if thats what they want. So the checks and balances need a 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 ten different United States<\/a> attorneys in three districts across the country over a period of ten years it used to be that judges could trust the prosecutors to tell them what the law was and to get the facts straight. No u. S. Attorney i ever worked with would have tolerated for two seconds the behavior that i saw that caused me to write the book. They all were adamant that we do it right, that we seek justice, that we be fair and that we carefully exercise our discretion to prosecute only cases that we had all the evidence and were sure the person was guilty. We didnt have time to go, or interest, in going to look to find something to pin on someone. That was not our job. No 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 four offenses assuming we had the evidence racked up to prove all of those beyond a reasonable doubt with no question in our minds that that was what should happen in the case. And we produced evidence favorably to the favorable to the defense that the Supreme Court<\/a> called brady evidence. That was our job. I have stood in the United States<\/a> court of appeals for the fifth circuit and confessed error when the trial lawyers got something wrong. I would tell the fifth circuit, we screwed that up. In fact, if you run through the westlaw system the word botched, you will find a quote in a footnote of a decision by Irving Goldberg<\/a> where he quotes me as explaining that the dea agents botched it. I think thats the only time the word appears in westlaw. [laughter] and the quote was accurate. I havent run that search in a while, maybe i should do it given 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 had 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 [laughter] my youthful countenance belies that alone, so im going to keep that secret. But throughout my practice i have bragged on and applauded and loved the fifth circuit. For it to have been given the 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. And then when the Bar Association<\/a>s for these respective lawyers also failed to do anything about it, i felt like i had to speak up. I know im not the only lawyer that could have seen this kind of injustice. As judge kaczynski said in his dissent in United States<\/a> v. Olson, there is an epidemic of brady violations abroad in the land. It is a significant problem, it affects the fundamental fairness of all our proceedings, and if the prosecutors can do what they did to the people discussed in this book who are, were Merrill Lynch<\/a> executives, one was a United States<\/a> senator, others were other business executives, all of whom had led stellar lives to the best of everyones knowledge, worked in their communities, contributed to charities, done everything right and believed in the system, to have prosecutors literally make up crimes against them and then be able to to push those through the system to conviction and imprisonment and have Federal District<\/a> judges in houston and then the fifth Circuit Court<\/a> of appeals not get it right was 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 theyve suffered, and everybody goes, oh, well, you know, he was a convicted felon. So i just felt like it was time that some lawyer 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 around. Or not to. It turns out people are paying attention, and so i thank each of you for being here to pay that attention to this issue. Because it is so important. And there but for the grace of god go think one of us. If they can do to what they do what they did to these people to ted stevens, to four Merrill Lynch<\/a> executives from wall street to houston to 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 Association<\/a>s every chance to do something about it visavis the lawyers, and the Bar Association<\/a>s did nothing. The texas bar bounced the grievance we filed against the texas lawyer like a superball. I mean, it practically came back by return mail even though it was written by bill hodes, the coauthor of the law of lawyering, and considered one of the top three legal ethics experts in the country. It was a 30page dwreefns with numerous citations to all the ethical rules and citations to cases, and a definitive explanation of the facts that showed aggrieve bl offense and the fifth circuit opinion which found that, yes, the prosecutor suppressed evidence favorable to the defense, but it didnt matter. So when the texas bar bounced that, i actually thought about sending them my law license. I havent done that because a number of friends urged me to continue practicing, which im not sure i can do, but im still working on that possibility. And then we also filed with the new york bar against Andrew Weissman<\/a> and the d. C. Bar against katherine [inaudible] the d. C. Bar kind of swept it under the rug. The new york bar, weissman was general counsel to the Deputy Director<\/a> of the fbi. So so the t. Of justice was 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 official responsibility. Yes, you heard that right. The department of justice was defending weissman, and the new york bar punted it to the department of justice to decide. Well, you can pretty much figure out how the d. Of justice decided 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, said, okay, youve 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 of any number of high profile prosecutions. It tells it as a 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. So there is a very human story that runs throughout the book of my client in particular, some of ted stevens and some of one of the prosecutors, maybe more of the prosecutors than just one. It tells the story of the Arthur Anderson<\/a> debacle. Most everyone thought Arthur Anderson<\/a> was hour write guilty. I horribly guilty. I have to confess that i also, as soon as i started hearing about the enron disaster, i knew the ramifications on 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 orr new anderson Arthur Anderson<\/a> case when he asked me to consult when their reply brief was due in the fifth circuit. So theyd already filed 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 the reply brief filed. The report was massive. Fortunately, they had a megastaff to dive into the record at the time. But it didnt take me long to look at it to wonder why the indictment charged what it charged. The actual offense against anderson was alleged as witness tampering. Which requires an element that i couldnt figure out how they were going to prove. And then when i read the jury instructions, the prosecutors had persuaded the District Court<\/a> judge in houston to alter the pattern jury instructions. Pat everybody instructions pattern instructions are approved for every circuit for many offenses. Its going to be affirmed on appeal. When judges deviate from the pattern instruction, i mean, that aa loan raises any alone raises any number of 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 should have been convicted. Turns out as i dug into it more, the jury was out for ten days before they returned a verdict of conviction. The company, Arthur Anderson<\/a>, was destroyed immediately upon indictment. They represented 2300 publiclytraded companies. They had 85,000 mows worldwide. 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, affirmed the conviction. Finally, the Supreme Court<\/a> took the case, actually took it pretty quickly by all standards, and reversed it 90. Because anderson 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<\/a> 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 Anderson<\/a> indictment and conviction is now the head of the Criminal Division<\/a> of our department of justice. Her name is leslie caldwell. The coprosecutor in the anderson case, Andrew Weissman<\/a>n, became general counsel, Deputy Director<\/a> of the fbi. He went on back from his days on the Enron Task Force<\/a> after convicting anderson. They then turned their sights to the Merrill Lynch<\/a> executives on wall street. They wanted to send a message to wall street. They viewed new york bankers as wise guys on wall street, Nothing Better<\/a> than mobsters in suits. Nicer suits, maybe. Brioni suits, whatever. But that was the basic attitude. It was to bring down Merrill Lynch<\/a> or the Merrill Lynch<\/a> executives. The destruction of anderson gave them incredible power when they went to any other organization because merrill, for example, knew that if merrill did not cooperate fully with the prosecution, that merrill would receive the Death Penalty<\/a> that arthur happenedder soften had just suffered happened orerson had just anderson 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 with the task forces view of the case. They agreed that if the task force wanted to interview a single Merrill Lynch<\/a> employee, a Task Force Attorney<\/a> could be present. The d. Of Justice Department<\/a> of Justice Task Force<\/a> installed an overseer within Merrill Lynch<\/a> who even reviewed the bills from the attorneys, so we had to be careful how we described what we were working on so as not to let the government know what that was. They named over a hundred people as unindicted can coconspirators in the enron litigation writ large which meant that everyone had to lawyer up. If their lawyers were smart at all, they ip zitsed that insisted that their clients lead the fifth amendment because if you didnt and you talked and you said anything that disagreed with the governments view of the case, you were subject to indictment for perjury and obstruction of justice. They reminded any potential defense witness of that threat daily. Some witnesses got calls during enronrelated trials as many as three times a day reminding them that they faced indictment if they got on the witness stand and testified inconsistent with the governments view of the facts. So the Enron Task Force<\/a> prosecutors, leslie caldwell, Andrew Weissman<\/a>n, Matthew Friedrich<\/a>, katherine rumler, shut down any access by the Merrill Lynch<\/a> defendants to any defense witness. In fact, our own Merrill House<\/a> inhouse council, Merrill Lynch<\/a> inHouse Counsel<\/a> was threatened with indictment after she testified in the grand jury. Her the us was changed from her status was changed from subject to target of the investigation. So even she when she took the witness stand for the defense, which the lawyers didnt know she was going to do until the last minute, was terrified. Mr. Weissman 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 dedefense that the constitution be required we be constitution required we be given. In fact, they told the court repeatedly there was no brady material in this case. So the four Merrill Lynch<\/a> executives were convicted by the houston jury. No vise. Their lawyers were like no surprise. Their lawyers were like deer in the headlights anytime anything happened in the courtroom. The prosecution had witnesses who were cooperating with the prosecution under plea agreements that gave them extraordinary benefits. Their witnesses were the people who had actually stolen money within end on. Yes, there were enron. Yes, there were definitely some thieves within enron. They all testified for the government against people who had not taken any money. In fact, as a District Court<\/a> young sent the Merrill Lynch<\/a> defendants to prison, he said i realize you were just doing your jobs. The Merrill Lynch<\/a> defendants did not take a penny 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 as a securities fraud prosecution. So instead they indicted the merrill defendants under the Honest Services<\/a> theory of fraud which alleged that the Merrill Lynch<\/a> defendants had conspired with andrew fastau to defraud enron of tsaaus Honest Services<\/a>. Yes. That would be completely laughable were it not for the fact that four Merrill Lynch<\/a>,tives could not get that indictment executives could not get that indictment dismissed. Did they take any money or property from anyone . No. That is a traditional fraud. In fact, fraud basically means stealing. It falls under one of the ten commandments, but its gotten more complicated than that. And the indictment was something id never seen before. I did Extensive Research<\/a> on it. I could not find a single case in the country from any state or federal court that served as precedent for making the conduct alleged in this case a criminal offense, much less a federal criminal offense. There wasnt one. No problem. Send em on off to prison. Motion to dismiss the indictment for failure of defense denied. Request for bill of particulars to tell us more about what the crime is were supposed to have committed, denied. When the fifth circuit got our request for bail pending appeal, the government argued that there was no substantial issue for appeal, never mind everything was wrong in the case from the indictment through the jury instructions also. In fact, ive never seen so many issues in a criminal case as existed in the Merrill Lynch<\/a> enron case. It was going to be hard to condense that into something, you know, 50100 pages for the fifth circuit to decide. Usually in a criminal case youre lucky if there are one or two good issues that might warrant reversal. I mean, we had so many in this case, we couldnt begin to brief them all. The fifth circuit denied bail pending appeal. The district judge had denied bail pending appeal. So the Merrill Lynch<\/a> executives had to report to prison, voluntarily surrender. The judge did allow them to go to the prison 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 allowed them to voluntarily report. All bail pending appeal motions were denied, even bail i even sought rehearing because i couldnt believe the fifth circuit wasnt going to grant them bail pending appeal. But they denied rehearing also. Six years later, fast forward, the ted stevens case has come along. Judge Emmett Sullivan<\/a>, very different from the judge we had in the Merrill Lynch<\/a> enron case, actually questioned the government when it said there was no brady. He started requiring them to produce be different parts of their produce different parts of their investigate our materials and investigatory materials, and each time they had to ruse something, it show had to produce be something, it showed, ah, we should have been given that before. This is favorable to the defense. To the point that Emmett Sullivan<\/a> made it clear he was going to dismiss the indictment against ted stevens. At that point we had a new attorney general. His name was eric holder, and he said he was going to clean up the department of justice. So he came in, i think it was about six weeks after he was appointed, he came in and dismissed the indictment against senator stevens in the interest of justice. I thought, hallelujah, were going to make some Real Progress<\/a> 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 because wed finally gotten the notes of thousands of hours of interviews of andrew fastau, and he had said there was actually no crime in the Merrill Lynch<\/a> case either. Even he had agreed that there was no guarantee from enron that would have made the transaction illegal. The entire thing that the governments case was premised on, he said that didnt happen. They had proved their case only by using the hearsay testimony of fastaus subordinates, and there was even one fastau note that explained that he had said one thing to his subordinates and another thing to the folks at Merrill Lynch<\/a>. Just like our defendants had said. We only knew what he had told us in a five minute phone conversation. So we thought that was rather significant development. He was the governments star witness against skilling and lay, and he was supposedly the guarantor that had made this transaction illegal from the get go. We got nowhere with that either. We did come talk to the department of justice. We were met with bristling hostility, and nobody ever responded to our allegations on the merits. So were back in the District Court<\/a>. The fifth circuit finally reversed the convictions after my client had spent a year in prison. They reversed 12 out of 14 counts of conviction against all the merrill defendants. They acquitted young bill fuse be, 32yearold assistant in Merrill Lynch<\/a> who had participated in the deal, acquitted him completely. He had served eight months in a hacks mum security maximum security transfer facility in oklahoma. 600 hills from his young family 600 miles from his young family. Our other defendants were not given light duty either. One of them were in prison catches which, a camps, which i assure you, most are not anything like you would think of a camp as being. They were at least in a higher level 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 and 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, a lot that they had to deal with. Fortunately, my client came out fairly well. Hes a very affable guy. Theres a very poignant in the story 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 even had his wife send him materials to explain to them how to open a bank account when they got out, how to manage basic household needs and budgeting, things like that. He said that the prison system itself is a farce when it comes 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 of 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 to us evidence that accidentally they well, they didnt really know they gave me a disk. They didnt know what was on the disk. I mean, they knew that there were documents on the disk, obviously, but they didnt realize the significance of those documents. They gave me a disk that contained yellow highlighting by the original prosecutors of evidence that was favorable to the defense that they had personally identified as favorable to the defense before the first trial. And they had omitted the keyword s and information from that when they gave us a very limited summary of what the actual participants in the transaction had said. One of the statements was just flat out false and misleading in the summary that katherine rumler, who became chief white House Counsel<\/a> and only left recently, had signed. She had said that jeff mcma hon who was treasurer mcmahon who was treasurer of enron at the time had also given a guarantee to the Merrill Lynch<\/a> defendants, and he had said he did not recall in the fourline summary they gave us of his statements. Turns out there were multiple pages of his statements to multiple federal agents that consistently said mcmahon said there was no guarantee. And that mcmahon also said he was participating in the fastau phone call that was so crucial to the case and that fast an au did not give fastau did not give a guarantee either. So here we had evidence that both purported gap to haves the only alleged crime in the case both alleged guarantors who despised each other agreed long ago before the case was even indicted that there was never a guarantee made to the Merrill Lynch<\/a> executives in this case. So four Merrill Lynch<\/a> executives intent a year in spent a year in prison on an indictment that made up a 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. And those prosecutors became chief white House Counsel<\/a>, general counsel, Deputy Director<\/a> of the fbi, Matthew Friedrich<\/a> became the acting attorney general for the division under the Prior Administration<\/a> who rushed to indict senator ted stevens and unseated the longestserving republican in the United States<\/a> senate only to have that indictment dismissed after stevens had lost his senate seat for the same kind of withholding evidence that happened in the Merrill Lynch<\/a> enron case. What can we do about this . The good news is there are things that can be done, and i will run through them quickly. I try to remind everyone as i speak on radio, we even have to remind ourselves that there is a presumption of innocence. Everyone is entitled to a presumption of especially in. We all think that innocence. We all think once someones indicted, of course they did it. Somebody indicted, theyve got to be guilty. Weve got to remind ourselves, i have to remind myself everyone is entitled to the presumption of thence, and the government must be held to its burden of proof to prove guilt beyond a reasonable doubt by competent evidence, and they must be held accountable when they do not produce evidence favorably to the defense. So what can we do in that regard . Judges can enter whats called brady Compliance Order<\/a>s requiring the government to produce that evidence on a set schedule so that defendants have it in time to prepare for their defense which is what the Supreme Court<\/a> requires. Judges are now starting to do that more often. Judge Emmett Sullivan<\/a> started doing that after the report of the investigation. The investigation he required came out. And it was identified that because he had not entered a specific order, the prosecutors could not be prosecuted for contempt. They could have been disbarred. So the Bar Association<\/a>s must be commanded to step up and deal with that. Im hoping that there is a public outcry and response to the book to urge Bar Association<\/a>s to be more responsible, and i though that there is going to be legislation introduced soon called the prosecutorial integrity act that should receive bipartisan support. There was an effort upon the publication of the report on the stevens investigation that judge sullivan had ordered, a bipartisan effort started by senator Lisa Murkowski<\/a> from alaska to introduce the fairness and disclosure of evidence act. It received support across the board. The aclu, the National Chamber<\/a> of commerce, the National Association<\/a> of defense lawyers, the american Bar Association<\/a>, every state Bar Association<\/a> i read about, everyone. Every Major Legal Organization<\/a> in the country supported the fairness and disclosure of evidence act. The only group that i know of that opposed it were the federal prosecutors and are now, ironically, named 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 act would require. So im going to urge everyone to support that legislation, and that means really, you know, getting more active about contacting your congress match and senators and congressman and senators and urging them to do something about it. And if judges will start entering brady Compliance Order<\/a>s and start reversing criminal convictions which is, i guess, what its going to take to get their anticipation, referring things to the Bar Association<\/a>s with a letter just demanding action on it and citizens start serving on juries with an idea of a single juror can stop an unjust criminal conviction. And you can tell if the judge is running a railroad in his courtroom or not. Some do run railroads. Youll see the juxtaposition of of the judge in houston with judge suggest land in the stevens case in the book, and it is very distinct and unmistakeable. The difference two Judicial Attitudes<\/a> can make. And then we have judgements like judge ca zip sky who was willing to reverse a criminal conviction and hold the government accountable for its conduct. Its all about our participation, fundamental fairness and Holding Prosecutors<\/a> accountable for their misconduct. It wouldnt take long to clean up the system if everyone did their art. Thank you. [applause] okay, thank you, sidney. Were now going to turn to our guest commentators, and our first commentator is also well qualified to address the subject of prosecutorial misconduct because over the course of his career he has served in the executive branch, the legislative branch, private practice and now academia. Hes presently the dean of the university of Baltimore School<\/a> of law. Before that he was appointed by president obama to a high ranking 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<\/a> on all legislative and oversight matters before the congress. Earlier in his career he served as the chief counsel to senator harry reid, and before that he was chief counsel to senator ted kennedy. He actually began his career as an assistant District Attorney<\/a> in new york city, so he also brings prosecutorial experience to our discussion. So please welcome mr. Ron white. [applause] id like to thank tim for that introduction and thank the Cato Institute<\/a> for inviting me to be here. Its, these are very important issues that sidney has raised in her book, and im very pleased to be part of the discussion. These are issues that should be aired. I want to start by commending Sidney Powell<\/a> for writing this book. I said to her when we were in the anteroom that there are lots of lawyers who see injustice in matters that theyve handled, and they deal with it by going out and having a drink. And what sidney has done in writing this book is taking her passion for justice and putting it out there for the world to see and the 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 that my reaction to the book is somewhat mixed. I think that there are overall themes in the book that i agree with, and ill speak about those, and i think, as i say, sidney deserves great credit for highlighting those themes and publicizing the problems in the criminal justice system. At the same time, i find her indictment, if you will, of the prosecutors in the case that she handled, the prosecution of mr. Brown, to be ultimately unconvincing, and ill explain why i reached that conclusion. Let me speak first about the overall themes that i very much agree with. Sidney highlights in the book in her opening remarks here the tremendous power of prosecutors, the frighteningly unilateral, almost Unchecked Authority<\/a> of individual prosecutors to ruin shall bes life. Justice jackson wrote about the obligation of prosecutors to use that power wisely and mindful of the fact that a prosecutors obligation is not to convict, but to do justice. That kind of sentiment is expressed in various engravings all over the department of justice, but sometimes those are mere words, and there are abuses. Before we get to individual abuses, let me say that in general i think that prosecutors, prosecutors ive seen in my career both at the state level and the federal level, are generally honorable. I think its possible to paint with too broad a brush in understanding this problem. To be sure, there are abuses, and they have been found, and they have been documented. But in my experience, many, many prosecutors are honorable men and women who seek to do justice in the public interest. Nobodys getting rich being a prosecutor. Theyre doing it because they believe that its the right thing to do, and its commendable work for those who do it well. That said, and i did say, you know, the power of a prosecutor is scary even if not abused. Just the judgments that individual prosecutors get to make. I graduated from law school as a very young man. I was about 24 years old, and i was in the manhattan das office, and i had the ability because new york state has a system of, at the time had a system of predicate felony laws, basically mandatory minimum sentencing laws that enabled me to decide whether someone was going to go to prison for a period of time because i could refuse to allow a plea to a lower grade offense. And i was disturbed by that. I had the power, and i didnt think i should have the power. And i had supervisors and colleagues who i could talk to and rely upon, but ultimately, i felt i had too much power. And then as i went on in the District Attorney<\/a>s office and gained more perspective on it, i was ultimately disturbed enough to leave the office and go into more of a policy role. Later in my career i found myself at the Justice Department<\/a>, and again i saw prosecutors who i felt had too much power, and some of them were overzealous in exercising that power. And what i think needs to happen, some of the reforms that sidney mentioned are absolutely on target. There need to be more checks. Interim checks and external checks on individual prosecutors exercise of discretion. Because nobody should have unilateral power of, essentially, life or death in individuals. A second theme that i very much agree with sidney highlights, the issue of unduly lengthy sentences. The cases she talks about are white collar cases, white collar criminal cases, but the problem extends throughout the criminal justice system. Drug cases, child pornography cases where theres been, you know, such a hysteria about, you know, that unfortunate conduct that people go to prison for decades for doing certain material. And in these white collar cases, individuals who suffered the worst punishment in the world the day that 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 in the enron prosecutions that sidney documented, skilling received a 24year sentence. When i was in the Justice Department<\/a>, i would see the press releases in any incident case, and i came to realize that every single sentence that i saw was about three times too long. A 30year sentence, it should have been 10year. The 9year sentences should have been about 3 years. And people who went to prison for a couple years probably didnt need to be there at all. So thats disturbing, and the issue of prosecutorial power in sentencing is, of course, the issue of mandatory sentencing which give prosecutors more power, more power over individuals, and judges dont have the power to check. And so efforts to fight mandatory sentencing and im very proud of my life whos here who leads families against mandatory minimums, and julias leading an effort that is really getting some traction now from congress, the Sentencing Commission<\/a> and at the Justice Department<\/a> to deal with some of those abuses. And anytimely, a theme that i think is highlighted in sidneys book, her client had, you know, a fairly tough time in the year that he was in prison, and other defendants the prisoners faced this, and we think, you know, everyone says, oh, the federal prison camps, you know, club fed, its really not like that. Any deprivation of liberty is serious, but the conditions and the medical care in any prison, including federal prisons, are deplorable, and that should be addressed. Having said all those good things about the book, let me say why i find sidneys central points somewhat unconvincing. She tells two stories, two cases kind of parallel to each other. One is the ted stevens prosecution where it is no doubt this is widely accepted that there was prosecutorial abuse. The preside ising judge in senator stevens trial, Emmett Sullivan<\/a>, found that. He ultimately appointed a lawyer to do a comprehensive independent review that documented every aspect of the misconduct. And 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 that judge sullivan was going to do it, so why not . I can tell you i joined the Justice Department<\/a> 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. It was very, very profound for the attorney general of the United States<\/a> so dismiss that prosecution even if judge sullivan was going to do it on his own. For the department itself to take that step sent an Important Message<\/a> to prosecutors, and there was then a very rigorous, very serious effort to reorient prosecutors to brady material. So thats one case, the stevens case. The second story sidney tells is about her client, jim brown, who was a Merrill Lynch<\/a> executive involved in dealings with the end on corporation. Sidney alleged very serious, sweeping prosecutorial misconduct in that case, and i dont in any way question her sincerity, and he she lays out her argument were vel. But unlike the stevens case where the adjudication found prosecutorial misconduct, in the brown case, the Federal District<\/a> court judge presiding over the case rejected the arguments. The fifth circuit which, i must say, had as zitny points outty missed many of the counts of indictment, not all of them. None the less, rejected prosecutorial conduct. That an a panel of incompetent judges rejected it. A and then, as sidney says, three separate state Bar Association<\/a>s declined to find that these prosecutors had engages in misconduct. You know, i dont know have to say. We have here is allegations by one side in a dispew. As i kept reading the book, i wanted to ask whats the other side of your story . We didnt get a lot of that. Its hard and its complex, these white collar cases, especially the enon case involved complex Financial Transactions<\/a> and then the procedural history of the case over many years becomes very complex. Its hard to judge it ip tently, but i know we got only one side of the story. Theres another aspect of the book that is of concern to me, a style that sidney uses as she recounts the lit division. She, essentially, provides transcripts of the argument especially in the District Court<\/a> and to some extent in the fifth circuit and tells you what both sides are saying, but she interrupts to ridicule the arguments and, indeed, the individuals making the arguments op the other side. She says kathy remler was seething, a young prosecutor named stokes she describes as really stupid, beyond hope. She talks about justice spebser. Was it spencer . Okay. [laughter] mr. Spencer. She said the Justice Department<\/a> supervisor named rita glafn had an afellowshipty for androgenous attire which i thought was really a low blow to comment on an adversarys clothing. And she ridicules the judge who presided, said the judgement never she never saw a judge work so hard in the face of contrary law to make sure the government would win and, and at another point she calls the judge lieuless. She requests whether they might have been influenced by the people who help them become judges, become cop firmed, or they were intimidated by the high rank of the prosecutors whose conduct was being challenged. She, of course, laid levels these very serious allegations that there was not just, you you know, questionable judgment by the prosecutors be but to limit sub oning of perjury. And, you know, a tough allegation to make in the face of adjudication to the contrary. By the thesis and my allegation by former colleague and others. I reject the wholesale allegations about corruption at the Justice Department<\/a>, but i appreciate the sydney for giving us the opportunity to talk about these important issues. Thank you. [applause] thank you. The second commentator has been the chief judge for the ninth Circuit Court<\/a> of appeals since 2007. He is well known for many things. His intellect, his sharp writing style, his accent and his good sense of humor and good looks. [laughter] i cant go through the whole list but the best of all he is known for his strong sense of justice and that comes through in his written opinions. His written opinions are so persuasive and well constructed that they often reverberate against the jurisdiction in the 19 circuit. Last december he shook up the world and im going to read a short snippet from that piece. He said i wish i could say the prosecutors unprofessionalism is the exception that the propensity for shortcuts and in deference to his ethical and legal responsibility is a blemish to the prosecutors around the country but that would not be true. Any violations have reached the epidemic proportions in recent years. Just with that one paragraph, the judge started a National Conversation<\/a> on the subject of prosecutorial misconduct because editorial pages including the New York Times<\/a> quoted the judge and started talking about do we have a problem in this country with prosecutorial ethics. Hes spoken many times and we are glad to have him back. Would you please welcome alex. [applause] before i start on this subject i do want to tell another publication and that is a piece of my wall clerk that worked for cato and i think you were the editor of the book. It picks up on the point that in fact there are so many out there and many of them are so ambiguous that the chances are very good and something that you have done in your life. If the federal prosecutors knew about it and they cant find out a lot of things nowadays using electronic data searches and so on if they want to focus they can probably get you and have you behind bars so this is a danger. This is the background to the point sydney is making and also acknowledge the point that very strong prosecutors and for them to take this large body of law, the somewhat amorphous body of law and go in for reasons to focus on a particular individual and that is a serious danger. Let me now talk a little bit about the other kind of prosecutorial misconduct. I think its important because i think we have both lawyers and nonlawyers to understand the significance. Brady is a decision by the United States<\/a> Supreme Court<\/a> that have come up with many decisions in terms of procedural protections and people sort of say they are all equal. I would suggest tv is uniquely important because unlike miranda where they can test and then he wants to suppress but he probably didnt because she confessed it is a procedural rule that brady truly protects the innocent and the truly protects people who have been charged with crime but what the government has in its possession evidence put before a jury with a reasonable doubt. The reason the government has the evidence is because they have such an advantage in gathering the evidence. They know about the crime where the investigation if it is a whitecollar crime on before the defendant knows that anything is going on. They have access to witnesses and electronic records and if it is a violent crime, they have controlled the time to be co crimdebate cocrime scene and bd out about it and there is an investigation going on that has been cleared and whatever there was there to pick up his and the governments position so it is a strongly important. It is vital to the government if it has evidence and make it a fair fight. Nobody is saying people should be allowed to go free who are guilty but surely if the government knows of a piece that contradicts what the star witness says, its only fair and appropriate not to send somebody to prison without having the jury consider both sides. We be leaving the jury is. We believe in 12 people acting together and thinking together and considering all of the evidence and then if they find somebody guilty beyond a reasonable doubt and we can have confidence. But they are not given the evidence and they are not given the exculpatory evidence in the governments position they cant make. It undermines the ability to make a fair decision. So, this is incredibly important and incredibly viable to the operating of our criminal justice system. I would say those that have faith in the system expressed that i share and sydney shares is based on the idea that we can actually have 12 people get all of the facts, all evidence good and bad and then make a fair decision and then we have the burden beyond a reasonable doubt for the government, which is high but not insurmountable and we are very confident that those people that we now have in jail in our country, too many people are there no longer. Once the government withholds evidence and willfully withholds evidence as exculpatory and to get a conviction, then we can no longer be confident. Here is the thing about brady. How do you know the government has exculpatory evidence . In most cases i think most prosecutors are upright and they do not this has been my experience they do not want to get a conviction for somebody without a fair hearing and without the true finding of innocence that there are people out there that want to get ahead by cutting the corners and of course it makes it harder for the honest prosecutors because the ones who cut corners get promoted into that gives an incentive to cut the corners because after all you have your own to think about so it is rare to find out that brady evidence exculpatory evidence has been discovered. Its important to talk about these two cases that iran has mentioned and look at what happened in those cases and what the reaction is when the evidence is found. In the ted stevens case nobody has said this but this is not a case where the Justice Department<\/a> came forward and said we have exculpatory evidence to present. An fbi agent blew the whistle. The fbi agent risks his own career but pointing the fingers at the Justice Department<\/a> prosecutor and says they knowingly withheld evidence. I hope you will read the book and find out this was a huge miscarriage of justice. He should have never been indicted or convicted. There is no doubt about it. If all the evidence had been available, the case wouldnt have gone to trial. Just read the book. There is no dispute in this book. The Justice Department<\/a> when they found out about this you would think they would run away and hide in shame. The attorney general at that point decided to dismiss the indictment but they said no big deal. This was after the conviction and they want to hold onto the conviction. They didnt say this is a horrible thing that weve done we are so sorry. They said no, we want to hold onto the conviction. Attorney general . We are accusing the Justice Department<\/a>. I dont care who that attorney general wants. The Justice Department<\/a> lawyers said we will hold onto the conviction. Its only after the judge wanted the investigation and came out to the fact this was a huge misconduct the attorney general decided to dismiss. Im not that impressed because at that point, its unthinkable they wouldnt have dismissed the indictment. There is no doubt about it. And i certainly commend the attorney general for doing it earlier and they are far more impressed if after the case was indicted those who were responsible had been disciplin disciplined. Nobody got fired over this. There were a few suspensions, but given the enormity of what happened, this was hardly a slap on the wrist. Now come in the brown case im not going to talk too much about it because what i want you to do is get the book and look at page four. This is the evidence of that was produced accidentally by the Justice Department<\/a> and it shows highlighting, this wasnt highlighting the throughput, but highlighting that was there when the evidence was given to her. These are statements by witnesses that are contrary to the evidence by the government. They knew about it. Whats happened is no misconduct but it happened in that case the court said while it wasnt that big of a deal anyway. And what they did is they simply refused to reverse the convictions and it wasnt a case where they said this was okay. They said it was not prejudice which is what the courts do all the time. Its what many of my colleagues do all the time. The government has ten or 12 witnesses that have been locked into the United States<\/a> illegally. Some of them said no and the government what they did before they reported most of those witnesses and the case came to us. This is a corporation and they started reporting what this isnt a criminal investigation. But they said to send back the witnesses before there was even a lawyer appointed to the case came up and points to us to my colleagues whom i dearly respect are from the conviction. They said its perfectly fine. It wouldnt have made a difference anyway. The government filed a petition for the hearing. In this case it was the Winning Party<\/a> and asked us to dismiss, to reverse the conviction and send it back so they could dismiss the indictment. I will take my two minutes to tell you the aftermath. Ten years later i get the same case of the same distance. Their view if we didnt have the border telling them theyve got to do this, they have no sense of responsibility. The lawyers who want to go back to continually givin doing it us the judge does something about it. Unfortunately the judges doing something about it there was a case in the dc court of appeals and are they cite me so this must be a good opinion. [laughter] they specifically directed the trial judge to enter orders compelling the government to meet the obligation and then in mississippi he found an opinion where he dismissed the indictment because of the violation. It is rare these things dont come up often enough the judges and prosecutors in including the civil violators to take action when it comes to the right and i think that we can not have confidence in our judicial system. Thank you. which before we open up and take your questions im going to give sidney two or three minutes if you want to respond to anything. Just a few points one of the biggest problems in the brady violation is a defens as a defer does not know what he does not know. There is simply no way to know is because only the government does. So it makes it extremely difficult to uncover the violation in the first place. Theres evidence the government didnt get a message with dismissathe message with thedisd indictment and would only point you to the decisions of the ninth circuit, the two cases arising out of the prosecution using the same witness where they didnt provide the evidence that they had in the stevens case and their the government refused to dismiss the indictment and persuaded the District Court<\/a> judge in alaska that it didnt matter because there was so much other evidence that it undercut th undercut ths primary witness and the district judge agreed whatever district judge did in houston. The ninth circuit reversed unlike the fifth circuit and the judge Betty Fletcher<\/a> wrote a concurrence said the government attitude is completely unacceptable and she would have completely dismissed the indictment, the majority of the panel remanded for the new trial and im not sure what happened in both cases they might have entered a substantially lesser offenses. But now i dont think the Justice Department<\/a> learned anything from that and i can also tell you the government is still trying to alter the ethical rules and all of the states to include whats called the materiality requirement whether the evidence matters or not to the defense in their initial determination and their ethical obligation as to whether they have to provide evidence or not in the first place and if they were allowed to decide what matters to the defense, we are in big trouble because to them, anything contrary to their view is said with a wink or a law that thenodthey literally used t language in stevens and the Merrill Lynch<\/a> case if the defendants to do something that is completely exculpatory or another witness said it was in the stevens case to cover him it wasnt really true and anything and call butare of course works to their benefit as everything works to the governments benefis benefit thereby is not material to the defense. So we have to have rules that required the production to the defense thats another reason we need a prosecutorial evidence to produce all evidence favorable to the defense. The Supreme Court<\/a> has said if the prosecutor has any question whether he should produce it it should be. If you have to ask the question whether it should be produced, it should be produced. Just give it to them and that is the only way to end sure that the trial is fair. In terms of the credibility or the accuracy of the materials im uploading all of the supporting documents to a website called license to law. Com and you will be able to look at the actual documents themselves and if we can get a full investigation and the brown case like they did get in the stevens case judge sullivan ordered just terrorizing the department with the fact an independent investigator and prosecutor was going to look into the department of justice if we could have gotten emails and ththeemails and the rest oe exculpatory evidence they say is not there and im sure there is more i would be impressed by that we can to get that and we couldnt get that and you can look at the documents and read the book and come to your own conclusion on that. I would state my licens stake me accuracy of everything in the book. We want to take your questions now. We have requests please wait for a microphone to get to you so everyone can hear your questions is identify yourself and in a affiliation you may have and please keep your questions brief so we can get to as many people as possible. Yes sir. I have been puzzled frown day number one. Why in the world did the Bush Department<\/a> of justice indicts ted stevens . I dont mean to be a cynic but how in the world did that happen . The president doesnt indict anybody. The prosecutors do and the Political Forces<\/a> and the administration should be weighed in on the merits of the prosecution. The prosecutors in this case i guess i guess but i believe i wasnt there to investigate and proceed as we know now they proceed to do any deeply flawed way withhold the evidence that would have been very helpful to senator stevens in his defense he shouldnt have been indicted or convicted. He shouldnt have lost the sentence that the Bush Administration<\/a> did invite the u. S. Attorney and they were responsible for bringing the indictment. The fact senator stevens was invited to speak slows the process. The administration led by the republican president are very powerful so in principle, it speaks well that in fact politics would not and should not play a role in bringing a prosecution. That is why to me it doesnt matter who the attorney general was. Iis the withholding of evidence that at fault and i dont believe that was political. I dont believe they were withholding evidence because they wanted to get the public incentive i think it is because thewas becausethey wanted to wid get back to. Thank you very much for what youve done. What you have described in any common gardenvariety activity behind the iron curtain, and there were good reasons people didnt speak up. But i would like to know if we had have a change in the administration in 2016 and if we get an administration which does truly want to clean out, how is it going to get rid of the Civil Servants<\/a> who are well entrenched in the Justice Department<\/a> and how is it going to end sure the judges, some of whom make their decisions based on political criteria that they follow the law lacks they cant do anything in particular about the judges others and making sure in the new political appointments they impress upon the judges the importance of following questions about their view of brady and things like that. But in terms of the new attorney general making changes by the project on government oversight has released a report based on its freedom of information act request identifying over 450 instances of intentional or reckless prosecutorial misconduct over the last decade. Attorney general holder refuses to release the name of the prosecutors. The stevens prosecutors, the two that were found guilty by the special prosecutor by his investigation of intentional us conduct are still in the department as the United States<\/a> attorneys. One served one day as a suspension according to the report otherwise they appealed the rulings and of course the internal review process and the department watereddown the findings in its own report and found them responsible but one was assessed a 40 day suspensi suspension. And one of them otherwise its been appealed to since lost in the quagmire at the Justice Department<\/a>. I think the new attorney general could make it clear regardless of the Civil Service<\/a> if i were the attorney general i would fire them all tomorrow and let the civil section mitigate the propriety of the firings if necessary. I just think its completely unacceptable for anyone who has a responsibility and a privilege of walking into a courtroom of the United States<\/a> of america standing in front of a federal judge saying i represent the United States<\/a> of america. Its completely unacceptable for them to lie to the court into thand thejury or withhold evidem the defense and they would be gone in five minutes. Another one of the tactics that is kind of shocking and the judge touched on this in the foreword to the book the way in which a trial is supposed to happen the prosecutor calls the witnesses they think support their case and the defense gets to call their witness to establish their side of the story. When prosecutors get wind of who the defense witnesses are going to be, then they kind of quietly approached the witnesses and pressure them and threatened them with prosecution if they agreed to testify for somebody heading for trial. This is just shocking to me and yet we have learned from your book about this is more common than many people realize. Diit happened in the cases that you write about in detail in the book and what can you tell us more about that and how common it is . It definitely happened in all of the prosecutions into the defense lawyers were screaming about it. Jeff mcmahon for example the notes of his interviews we finally got accidentally with all of the yellow highlighted the exculpatory information. He was threatened multiple times a day being indicted for his role in the Merrill Lynch<\/a> enron transaction on which the entire year of budget criminal activity depended. They would have had to have produced that if they had indicted mcmahon just like they called fastau to testify in our trial, we might have gotten the notes then as to what hed said. So they didnt have fastau, mcmahon or any participant testifying in our trial, they only used hearsay evidence of the subordinates who fastau said he had actually lied to. But, yeah, that tactic is very common, way too common. Yes, maam. Hi name is janice. I was given a 30day sentence to jail yesterday in the city of alexandria court. It was suspended for fighting for my right of due process and a judge with jurisdiction. Americans are unaware of how corrupt our system is and that the judges, the Virginia State<\/a> the different boards are all patting each other on the back and, basically, taking care of their criminal actions. The judicial system polices themselves. There is nowhere to go. I have gone everywhere. I asked for a trial by jury and was denied it. I asked to go in front of a grand jury to ask for a special grand jury, i was ordered by the Supreme Court<\/a> Justice Cynthia<\/a> kinzer to be able to go this front of the grand jury. Instead, myself, my witnesses were kidnapped into another courtroom and denied access to the grand jury. My evidence with three different judges has been taken out of my file and mailed back to me. I have a box that is owned of my ed okay, you have to have a question. I have a question as to what can we really do to get the government to or somebody that is not, that is arms length to look into cases like this . Where do you go . Well, thats basically the sum of why i had to write the book. [laughter] [inaudible] its crazy. Until you get on the slippery slope of this kind of misconduct. There are solutions. North carolina had a solution with a prosecutor. You all remember the lacrosse case. And what the duke lacrosse case . Yes. The duke lacrosse case. A rural prosecutor who eventually was disbarred yes. And perhaps convicted. But they went further, and they passed a statute provides for open discovery. Basically, if the prosecutor has the file, he has to turn the file over to the defense. And that seems fair. This is not trial by ambush. We are not behind an iron curtain. Were this a system of due process in a system of due process. It seems to me the defendant is entitled to know whats in the prosecutors file. Theres usually plenty there to convict, and most defendants usually say at that point, well, never mind, ill cop a plea because theyve got me. A lot of time theres stuff this there that the prosecutor may not understand to be exculpatory because the prosecutors job is not to figure out whats good for the defense, but defense lawyers are paid to do that. So its very simple. We have a piece of legislation produced by ninth circuit senator murkowski sponsored by another it had six bipartisan sponsors. So im very proud of our circuit. But, of course, senator murkowski because it was senator stevens from alaska who suffered. So she introduced the fairness and disclosure of evidence act, and then sidney mentioned the prosecutorial integrity act. You pass laws and then prosecutors live by them. And if you shine a light on what is hidden there in the prosecutors files, then you will have a much better chance of having and you dont count on people being honest or count on people being fair. Its just there. So thats what i would suggest. I would suggest we have legislation pending. It should be supported, it should be passed. Okay. I think i see alan in the back. Thank you. To what extempt does the criminal extent does the criminal defense bar put pressure on them to take this more seriously with their powers of discipline . And to the extent that the state bar authorities may not be very responsive, what is the role of the Federal District<\/a> court disciplinary committees to to actually discipline attorneys who appear before them . I know that judge kaczynski, for example, a long time ago dealt with a case where attorneys were criticizing judges, and those attorneys in that circumstance, obviously, get a lot of attention from the District Court<\/a> disciplinary committees. But if the state bar authorities are not much help, what about the judges themselves and their disciplinary powers . I think thats a great point, and i actually drafted a brady Compliance Order<\/a> that im going to upload to the web site too that includes that as one of the steps the Federal District<\/a> judges can take. We tend to forget about that, but federal judges can decide that a lawyers not fit to practice in their district or in their courtroom, and they have a lot of authority to start making waves in that regard. I dont know that the criminal defense bar is putting any pressure on the Bar Association<\/a>s at all. I have no information on that really. It took the texas court of inquiry in the Michael Morton<\/a> case that you all may have heard about, it received a lot of news and is now the subject of a book hes written. A man spent 25 years in prison accused of the murder of his wife while the prosecutor became a who hid the bloody bandanna evidence literally became a state court judge having run his campaign on his conviction of Michael Morton<\/a>. Of course, the dna on the bandanna completely exonerated Michael Morton<\/a> thanks to the work of the Innocence Project<\/a> over a number of years. The texas bar convened a special court of inquiry. That took an act of god and congress, basically, to get that done. 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