Tuesday, February 22, 2011

Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams

by James Scanlan, Esq.

In United States v. Dean (which is discussed or alluded to in my Truth in Justice editorials of June 26 , July 11, August 17, September 4, September 26, and October 3, 2010, and February 6 and February 19, 2011, concerning Robert E. O’Neill and Bruce C. Swartz), at a hearing on February 14, 1994, Judge Thomas F. Hogan of the District Court for the District of Columbia repeatedly noted his concerns about the “cumulative effect” of identified prosecutorial abuses, observing (at 29) that it was “almost impossible to quantify the[ir] total impact” on the defendant’s ability to defend herself. Typically, when one party has created a situation where it is impossible to sort things out (in this instance, the prosecution), a court is expected to rule against that party, which for a time it appeared Hogan was going to do. Nevertheless, with little more than a page of explanation (at 30-31), Hogan refused to grant a new trial.

Requesting reconsideration, the defendant sought a piece of discovery that she maintained would show that a key government witness committed perjury concerning a matter given provocative attention in closing argument. But at a hearing on February 22, 1994, Hogan denied discovery even though he apparently believed that the defendant had told the truth. Observing (at 21) that the matter “could be argued either way . . . but it doesn’t mean of necessity that the government is putting on information they knew was false,” Hogan refused to allow the discrete inquiry that could reveal whether the government in fact deliberately used false testimony.

Part of the reason for both rulings may have involved deference to, and disinclination to embarrass, Independent Counsel Arlin M. Adams, a highly regarded former federal judge, who had served with distinction on the U.S. Court of Appeals for the Third Circuit from 1969 until 1987 and had been several times a serious Supreme Court candidate. In May 1995, three judges comprising the D.C. Circuit’s Special Division overseeing independent counsels showed like deference to Judge Adams, notwithstanding Judge Hogan’s having excoriated the prosecutors in what Robert E. O’Neill would describe as Adams’ “showcase trial.” By letter of May 17, 1995, in conveying its “unmeasured appreciation for a job well done,” the Special Division added: “No one has better carried out the role of independent counsel than you.”

Nearing 90, Adams is presently one of the most revered former jurists in the country. A current or former trustee of a number of prominent institutions, he has also served as Chancellor of the Philadelphia Bar Association, Chair of the Supreme Court Judicial Fellows Commission, and President of the American Judicature Society and the American Philosophical Society. In 2001 Adams was honored by the creation of the Arlin M. Adams Center for Law and Society at Susquehanna University. In 2005 the Annenberg Foundation established the Arlin M. Adams Professorship in Constitutional Law at the University of Pennsylvania Law School, and in 2007, the Earle Mack College of Law of Drexel University created an Arlin M. Adams Professorship of Legal Writing, naming Judge Adams an honorary member of its inaugural class. In announcing the Penn Law professorship, Dean Michael A. Fitts observed: “Arlin Adams' unquestionable integrity and prudent leadership exemplify the highest ideals of the legal profession.”

But a profile on Arlin M. Adams that is akin to the profiles I maintain on Bruce C. Swartz and Robert E. O’Neill shows that Adams was himself much involved in the abuses perpetrated by Swartz and O’Neill in prosecuting the Dean case. And inasmuch as Adams was in charge, he is more responsible than either Swartz or O’Neill, whether or not his stature played a substantial role in causing the abuses to go unaddressed.

Adams has an additional matter to answer for. Many of the abuses in the case – including the remarkable matter highlighted in most of the referenced Truth in Justice editorials, especially those of September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”) and February 6, 2011 (“Bruce Swartz ­– Our Man Abroad”), and that is the subject of Sections B.1 and B.1a of my Prosecutorial Misconduct page (PMP), Section B of the Robert E. O’Neill profile, and Sections A and E and Addendums 3, 4, and 7 of the Bruce C. Swartz profile – involved claims that Deborah Gore Dean had caused HUD to take certain actions to benefit former Attorney General John N. Mitchell. Mitchell, who had died in November 1988, about six months before the HUD scandal broke, had been regarded as a stepfather by Dean. See Section C, D, and E.1 of the O’Neill profile and Sections B, D, E of the Swartz Profile regarding varied matters concerning Mitchell and Addendum 2 to the Swartz profile regarding the less than candid responses to an appellate judge’s inquiries about how Mitchell’s notoriety may have affected the case. See also Section B.3 of PMP, which shows not only that Dean was innocent of the allegations involving Mitchell, but with regard to the one project on which the court of appeals somehow found sufficient evidence to sustain a conviction, Independent Counsel attorneys (a) knew with virtually certainty that Dean was innocent of the charge before they brought it, (b) deliberately forwent the obvious inquiries that would establish beyond any doubt that Dean was innocent, and (c) then used false evidence to prove the claim.

Adams had a significant prior history with Mitchell. Shortly after he was appointed Independent Counsel in 1990, Adams told USA Today that he might have been appointed to the Supreme Court (in 1971) if had not offended then Attorney General Mitchell by a decision concerning anti-war activist Daniel Berrigan. Adams was not exaggerating. According to Bob Woodward and Scott Armstrong’s 1979 book, The Brethren (at 400), Richard Nixon had promised Adams a Supreme Court appointment, but Mitchell vetoed it. According to James Rosen’s 2008 book on Mitchell, The Strong Man (at 484), Adams also clashed with Mitchell at the 1968 Republican convention, which “earned him a tongue-lashing from Mitchell that he never forgot.”

Given that Dean had been a central figure in matters Adams was to investigate, and that Dean’s connection to Mitchell was often mentioned in the press (sometimes with suggestions that she took actions to benefit Mitchell), a responsible (or prudent) lawyer in Adams’ position would have declined the appointment solely to avoid any appearance of impropriety. The failure to do so may yet haunt him or his memory.

When it became known in June 1992 that Adams was bringing an indictment alleging a conspiracy involving Dean and Mitchell, Dean, citing the USA Today article, requested that Adams recuse himself. By letter of June 23, 1992 to Dean’s counsel, Adams denied ever having any animosity toward Mitchell, and stated that “[t]o the extent that the ongoing investigation involves . . . John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Adams added: “In addition, of course, it the grand jury, not this Office, that determines whether or not Ms. Dean will be indicted on particular charges; and it is the petit jury, not this Office, the will ultimately decide whether or not Ms. Dean is guilty of those charges.”

Assuming Adams truly believed he bore no animosity toward Mitchell, one would still expect Adams to recognize the need to avoid any appearance that personal bias will influence a criminal proceeding, as he should have done two years earlier. And anyone familiar with the workings of a federal grand jury would regard as utterly fatuous the statement that the grand jury rather than the prosecutor decides what indictments to bring.

Nevertheless, Adams’ point about the grand jury does highlight an additional aspect of the matter. As of the time of the issuance of the Superseding Indictment on July 7, 1992, the process of deceiving the defense, the jury, and the courts was only beginning. But Adams’s attorneys had already been deceiving the grand jury. That is, presumably the grand jury was not told that numerous statements or inferences in the Superseding Indictment were false. It can be taken for granted, for example, that the grand jury was not told that the conspiratorial reference in the indictment to “the contact at HUD” with regard to a project called Park Towers (part of the Mitchell count) was not a reference to Dean or that eight other key inferences underlying the Park Towers charge were known or believed to be false. See Section C of the O’Neill profile. It can also be taken for granted that the grand jury was not informed that telephone message slips found in Mitchell’s files indicated that Mitchell had secured funding for a project called Arama through Dean’s predecessor. Certainly the grand jury was not informed that, as a result of the message slips and other evidence, Independent Counsel attorneys were virtually certain that Dean was innocent of the Arama charge, but that those attorneys nevertheless believed they could secure a conviction by leading the petit jury to believe various things the attorneys knew or believed to be false. And I doubt that the grand jury was told that Government Exhibit 25 was a fabrication. See Sections B.3 and B.9a of PMP and Section D of the O’Neill profile.

In the event my interpretation the conduct of Adams’ prosecutors in the Dean case becomes widely known, varied institutions may find the Adams name a sort of ironical albatross. This would seem especially so for the Arlin M. Adams Center for Law and Society. The Center is obviously a well-meaning institution and among its admirable missions is the promotion of a criminal justice system that would preclude the type of conduct perpetrated by Adams and his subordinates in United States v. Dean or severely punish it when it occurs. Its first full time director, the recently-deceased Allan D. Sobel, would write on such on such things as prosecutorial misconduct. One item was styled “Prosecutors Rarely Penalized for Misdeeds.” True enough.

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