Prosecutors Get a Mulligan, Wrongfully Convicted Man Gets Squat

The following opinion was published in The Atlantic on March 30, 2011.

By Andrew Cohen

United States Supreme Court Justice Clarence Thomas wrote his first majority opinion of the Term Tuesday and, naturally enough, it was a 5-4 decision against the interests of a criminal defendant whose constitutional rights had been dramatically violated by prosecutors. To mark the occasion, Justice Ruth Bader Ginsburg read her dissent aloud in court (also a first for the Term) and Justice Antonin Scalia, Justice Ginsburg's well-chronicled BFF, took a few shots at her in an otherwise needless concurrence joined by Justice Samuel Alito.

All of this, mind you, occurred before the justices heard oral argument in Walmart v. Dukes, the massive class-action case which garnered sweeping attention at the courthouse Tuesday morning. No wonder the justices seemed so grumpy when the plaintiffs' lawyers started making their discrimination case (or maybe it was just the traffic ticket Justice Scalia's got coming in for work Tuesday morning). And no wonder the Court's striking ruling in Connick v. Thompson was left largely underreported.

Still, it's not every day that the Court so brazenly overrules a jury verdict in the name of protecting state prosecutors (and the political entities which employ them) from the consequences of sustained official misconduct. And it's been quite some time since the Court's conservative majority reached out in such a fashion to snatch form from the jaws of substance. In these circumstances, it's no surprise that Justice Ginsburg blew her stack or that Justices Thomas, Scalia and Alito reacted so defensively to her objections.

Here's the story. Convicted of murder, and on Louisiana's death row for 14 years, John Thompson was just one month away from being executed when defense investigators discovered exculpatory evidence that prosecutors had failed to share with Thompson's lawyers in the two cases (one for armed robbery, one for murder) which led him to death row. The evidence hidden by the state were blood samples -- not from Thompson's blood -- found at the scene of the robbery.

Confronted with the new evidence, an appeals court quickly reversed both of Thompson's convictions. Undaunted, prosecutors tried Thompson again for murder. This time, Thompson was acquitted. He then sued the district attorneys. Thompson alleged that prosecutors had intentionally caused him to be wrongfully imprisoned for a total of 18 years. He argued that the DA's office unconstitutionally handled exculpatory evidence -- or at least that lead prosecutors inadequately trained their office staff to handle such evidence.

Prosecutors conceded before Thompson's civil trial that they had violated the Brady rule, the constitutional standard designed to ensure that government officials don't hide exculpatory evidence in criminal cases. But they argued that it was an isolated incident and thus could not generate a viable damage award. The jury disagreed. It awarded Thompson $14 million -- one million for each year the man had wrongly spent on death row, you could say. The district attorney, Harry F. Connick (yes, the famous singer's father) appealed.

Justice Thomas and the Court's four other conservative justices bent over backward Tuesday to help him out. They overturned the jury's verdict, and the trial judge's ruling, and declared that one Brady violation alone was not enough proof to establish a viable claim against the government. It wasn't the District Attorney's fault for failing to teach prosecutors about the contours of the Brady rule, Justice Thomas justified, because individual attorneys have their own ethical obligations and should have known better themselves. He wrote:

The District Court should have granted Connick judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the 'policy of inaction' [was] the functional equivalent of a decision by the city itself to violate the Constitution." (citations omitted)

You got that? Thompson failed because he did not sufficiently show that his prosecutors had similarly ruined the lives of other criminal defendants. And just because prosecutors admitted that they had "violated the Constitution" under Brady didn't mean they had "violated the Constitution" for purposes of a civil lawsuit. Under this warped rationale, the law's obligations to Thompson essentially ended when the appeals courts reversed his convictions. The 18 years of wrongful imprisonment? Not our problem, Justice Thomas wrote:

The role of a prosecutor is to see that justice is done. "It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." By their own admission, the prosecutors who tried Thompson's armed robbery case failed to carry out that responsibility. But the only issue before us is whether Connick, as the policymaker for the district attorney's office, was deliberately indifferent to the need to train the attorneys under his authority.

In dissent, Justice Ginsburg tore into this reasoning. She wrote:

The Court holds that the Orleans Parish District Attorney's Office... cannot be held liable... for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady's requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court's assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.

From the top down, the evidence showed, members of the District Attorney's Office, including the District Attorney himself, misperceived Brady's compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors' conduct relating to Thompson's trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney's Office.

What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility under §1983." (citations omitted)

Prosecutors clearly cheated, Justice Ginsburg reasoned, and Thompson paid a terrible price for such cheating. As the jury had duly concluded, Louisiana should have been required to compensate him for his trouble. The Court's three other liberal members -- Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan agreed. But Justice Scalia was unwilling to let his pal Ginsburg's dissent go unanswered (beyond that which Justice Thomas had already answered it, in depth, in footnote 5 of the majority opinion). Justice Scalia wrote:

The dissent's lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. The dissent defers consideration of this question until page 23 of its opinion.

It first devotes considerable space to allegations that Connick's prosecutors misunderstood Brady when asked about it at trial, and to supposed gaps in the Brady guidance provided by Connick's office to prosecutors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual published by Connick's office three years after Thompson's trial. None of that is relevant. Thompson's failure-to-train theory at trial was not based on a pervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. (citations omitted)

This, indeed, was a bitterly-fought case. And it's ultimately a decision from the Court's majority that reveals outright hostility to the rights of the wrongfully convicted to adequately redress their conceded grievances. You would think such redress would be the least the law could do for men like Thompson.

Courts should consider DNA evidence whenever it is available

The following opinion by Spero Lappas was published by the Harrisburg, PA Patriot News on March 16, 2011.

On Oct. 19, 1991, police officers discovered the body of an elderly Philadelphia woman named Louise Talley. She had been brutally beaten, raped and stabbed to death in her own home. It was a terrible crime and the police immediately mounted a massive investigation that included the collection of physical and forensic evidence and the interviews of dozens of witnesses.

Quickly, their attention focused on 20-year-old Anthony Wright. He was reported to have been spending time at a nearby crack house, other residents placed him at the scene of Mrs. Talley’s murder, and there was physical evidence that connected him to the crime. The next day, detectives took Wright to the police station where, they later testified, he gave them a long and detailed written confession in which he told them how he killed Mrs. Talley and why.

Wright’s statement was nine pages long, typewritten and signed. When he came to trial, he tried to convince a judge that his confession should not be used against him. He lost. He testified that the police had forced him to confess, but no one believed him. He swore that he was innocent of the murder, but he was convicted anyway. The appeals courts upheld his conviction and when he later claimed that he deserved a new trial because his lawyers had been ineffective the judges disagreed. In 1993, he was sentenced to life. Case closed.

But in 2005, Wright filed a request under the state’s new Post Conviction DNA Testing Act. This law gives convicts the right to ask that crime scene evidence be tested for DNA if they can persuade a judge that a favorable test result will prove them innocent. There was crime scene DNA at Talley’s house and Wright’s new lawyers said it would free him from a wrongful conviction.
How can that be, asked the courts. He admitted he did it, he voluntarily confessed, what more do we need to know? Wright would not get the DNA test he asked for. The murder of Louise Talley shines a light on one of the most difficult questions in criminal law: How should we reconcile the traditional tools of the courtroom — eyewitnesses, confessions and the like — with the power of new technologies that promise to tell the truth with absolute certainty?

For centuries, criminals have been sent to prison and to their deaths based upon the words they speak. It has been conventional wisdom that confessions are trustworthy and conclusive proof of guilt: Who would confess to murder if he didn’t really do it?

Lately, however, psychological scientists have proved that false confessions account for about 25 percent of wrongful convictions. Saul Kassin, the eminent researcher at the John Jay School of Criminal Justice, has written that suspects often falsely confess to end stressful interrogations, to protect the actual perpetrator or out of a pathological need for notoriety. No matter what the cause, it is now undisputed that sometimes when a suspect says “I did it,” we shouldn’t believe him.

On Feb. 19, the Pennsylvania Supreme Court accepted this scientific truth and sent Anthony Wright’s case back to court. We need not be reminded, the justices ruled, of the countless situations where persons confess to crimes of which they are innocent, out of desire to cover up for the guilty person or because of a psychological urge.

The Innocence Project reports that at least 10 Pennsylvanians have been freed from prison after DNA testing proved their innocence. Some of them such as Wright had confessed. There are simple and available tools that can minimize the risk of a false confession leading to a false conviction. Police interrogations can be recorded or videotaped, and jurors and judges can be better educated on the research. The Supreme Court has taken a key step toward assuring that the search for the truth will trump legal technicalities that can sometimes get in its way.
Maybe Anthony Wright killed Louise Talley, and maybe he didn’t. Maybe DNA will free him, and maybe it will confirm his guilt. Either way, it’s a good idea to find out.

Spero Lappas practices criminal defense and constitutional law in Dauphin County, PA.

Is convicted murderer innocent?

by Mike Nichols

The following opinion was originally published by the Wausau Daily Herald on March 4, 2011.


If Terry Vollbrecht really did murder Angela Hackl in the woods just outside Sauk City almost 24 years ago -- something prosecutors wrongly opposing a new trial continue to insist he did -- it's surely one of the most incredible coincidences in the history of Wisconsin crime annals.

Hackl was only 18 when she was killed. Last seen leaving Hondo's Bar with Vollbrecht early on the morning of June 12, 1987, her body, partly naked and shot in the back, was later found hanging at the base of a tree with a chain looped around the neck and brush piled all around.

"If you put a match to that," a prosecutor at Vollbrecht's trial said, "you would have a human sacrifice."

It was a uniquely grotesque killing in an area that can go years without a single homicide -- but not the last of its kind. Just six weeks later, Linda Nachreiner was killed in another rural, wooded spot about 30 miles away. The woman in her late 20s had been shot from behind and, although her body was found on the ground, her killer later said that he had chained her to a tree by her neck.

That killer, by the way, was not Terry Vollbrecht.

It was Kim Brown -- a deeply disturbed Oxford resident who liked to read pornographic books with titles like "History of Torture"and "Chained & Raped Wife." He also, according to two men who served time with him, said he talked about chaining women up and lighting them on fire. Two others who knew him in prison allege he also admitted killing Hackl, and one of those has said Brown intended to set her on fire but didn't because his lighter wouldn't work.

Steven Bauer, a former prosecutor who is now a judge, spent a year pondering things after the Hackl case was investigated by the Wisconsin Innocence Project. Because many of the details were not known when Vollbrecht was first tried, Bauer ordered a new trial recently.

Vollbrecht, as a result, was released from his cell the other day on a $425,000 bond put up by a sympathetic Prairie du Sac businessman, Curt Mueller. Prosecutors from the Wisconsin Attorney General's office, who want to lock him back up without further ado, are appealing Bauer's ruling and arguing that another trial is not necessary.

It is.

Vollbrecht is not a clearly innocent man. He has admitted having sex with Hackl that June night out by the Wisconsin River far from where her body was eventually found, and says it was consensual. His story is that after that she dropped him off back near his own car in Sauk City around 3:30 a.m., he tried to walk home because he'd lost his car keys. He was seen in the general vicinity of where Hackl's body was found -- although there is no evidence putting either him or Brown at the murder scene. If Brown did do it, moreover, he would have to have somehow come upon her and killed her without being seen in a pretty narrow window of time. Brown, who is incarcerated at Redgranite Correctional Institution and eligible for parole in 2031, denies having anything to do with it.

Still, the man's proclivities -- and the similarities between two murders just six weeks apart -- should nag at any conscience.

Bauer thinks a new trial would be a toss-up, but also points out that newly discovered evidence about Brown undermines confidence in the original verdict.

In the end, only a fresh set of jurors can determine what to believe in -- an awful and incredible coincidence or a guy who has already served over 20 years of a life sentence. Vollbrecht, who will turn 50 this summer, deserves another chance to argue that he shouldn't be sent back for twenty or thirty or forty more.

Mike Nichols is a syndicated columnist, author and senior fellow at the Wisconsin Policy Research Institute. Views expressed in this column are his own. E-mail Nichols at MRNichols@wi.rr.com.

The Arlin M. Adams Interview

By James Scanlan, Esq.

My Truth in Justice editorials of February 22, 2011 (“Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams”) and March 10, 2010 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) present an unflattering picture of Judge Arlin M. Adams as Independent Counsel investigating abuses of HUD housing programs. Such picture shows Adams fabricating charges against Deborah Gore Dean at least partly to get even with the late former Attorney General John N. Mitchell (a person Dean regarded as a stepfather) because in 1971 Mitchell caused President Richard M. Nixon to break a promise to appoint Adams to the Supreme Court. In doing so, Adams also fabricated (posthumous) charges against Mitchell. In refusing to recuse himself from matters involving Mitchell, Adams stated in a June 23, 1992 letter to Dean’s counsel: “To the extent that the ongoing investigation involves Ms. Dean’s family and John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Assuming the validity of my interpretation of the conduct of Adams and his subordinates in the prosecution of U.S. v. Dean, the statement reflects a hypocrisy of epic dimension.

In the February 22 item, I observed that Adams is one of the most revered former jurists in the country. One may get some understanding of why that is so by reading a July 1, 1999 interview of Adams conducted by Sarah Barringer Gordon, a former law clerk to Adams who is today the Arlin M. Adams Professor of Constitutional Law at the University of Pennsylvania Law School. The just over 9300-word interview, part of a Penn Law oral history project, traces Adams life from his growing up in the depression, through his naval service in World War II and his time at Penn Law School before and after the war, followed by a career in Pennsylvania government, national politics, and the law, including distinguished service on the U.S. Court of Appeals for the Third Circuit from 1969 to 1987. It is an interesting historical document and worth reading for reasons unrelated to my criticisms of Adams.

But a few of Adams’ observations in the interview warrant discussion for their bearing on my interpretation of his character and conduct.

A. Paragraphs 58, 60, 74, 82 – the Promise of the Supreme Court Appointment

In paragraphs 58 and 60 (as numbered in this version of the interview) Adams discusses his becoming associated with Richard Nixon and the events leading to Adams’ appointment to the Third Circuit. The discussion is interesting solely from an historical perspective. But it also suggests the circumstances that might have led to Nixon’s promising Adams an appointment to the Supreme Court, probably in conjunction with the offering of Adams a position on the Third Circuit. In paragraph 74 Adams then discusses his initial hiring of law clerks after the 1969 appointment to the Third Circuit, noting that he was able get good candidates because even then “there was some feeling … that I was going to be on the short list for the Supreme Court.”

Adams mentions Attorney General John N. Mitchell only briefly (in paragraph 60), and not by name. In the course of describing a visit by Mitchell to press Adams to decide about the Third Circuit appointment, Adams quotes Mitchell as stating that “[the President] has something in mind for you.” The reference suggests that it may have been Mitchell who communicated Nixon’s promise to appoint Adams to the Supreme Court after a brief tenure on the Third Circuit. Whether or not that was the case, however, the discussion in the three referenced paragraphs provides ample reason why Adams might resent that Mitchell caused Nixon to fail to follow through with the high court appointment.

In paragraph 82, Adams notes that “[t]here had been two or three times when I had been seriously considered for the Supreme Court.” In what seems to be an explanation that he retired from the Third Circuit because he realized he was not going to be on the Supreme Court, Adams makes no mention of Mitchell’s role in causing him not be appointed to the Court in 1971 (as Adams had done in 1990 USA Today article upon his appointment as Independent Counsel). In context, there is no particular reason for him to address the matter. But the discussion adds to the impression that the Third Circuit had been viewed by Adams as but a temporary assignment on the road to the Supreme Court.

B. Paragraph 96 – Independent Counsels and Fiscal Abuses

In paragraphs 94 and 96 Adams discusses his own tenure as Independent Counsel and the independent counsel law generally. In the latter paragraph, Adams observes that an independent counsel’s tenure should be limited to perhaps a year, unless the independent counsel secures an extension from the court. Adams mentions nothing about the possibility for abuse of the exceptional powers granted an independent counsel, or the tendency for independent counsels in fact to abuse those powers such as Judge Thomas F. Hogan noted in a February 14, 1994 hearing (at 27) in finding that in U.S. v. Dean Adams’ attorneys had shown “at least a zealousness that is not worthy of prosecutors in the federal government or Justice Department standards ….” But in observing that the process was too “open-ended,” Adams adds: “The expenditures of money was too open-ended. There were no restraints built into the system.”

In making this observation, Adams may have been thinking of the investigation by Independent Counsel David M. Barrett that started out as a simple inquiry into whether Henry Cisneros lied about payments to his mistress during a background check for an appointment as Secretary of HUD, but that, at the time of the Adams interview, was beginning its fifth year. While Adams could not then have foreseen that Barrett’s investigation would eventually run over ten years and spend close to $23 million, there was reason for Adams to be acutely aware of the Barrett investigation. See my March 8, 2011 Truth in Justice editorial styled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett” (especially its Addendum 1) regarding reasons why, whatever caused Adams to fail to include Barrett in the case Adams brought against Thomas T. Demery, Adams should have informed the appointing panel of Barrett’s unsuitability to serve as an independent counsel.

But Adams may also have had in mind some fiscal issues in his own investigation, which cost $27.6 million, the second highest independent counsel expenditure at the time of the interview. Considering the matter in 1999, Adams would probably have deemed it unnecessary that his office devoted investigative resources to identifying persons Deborah Gore Dean was believed to have slept with in order to display the results of such investigation for the amusement of the office. See Section B.9 of the Prosecutorial Misconduct page (PMP) and the Paula A. Sweeney profile. Adams may also have been thinking of the fiscal abuses brought to his attention by the document manager discussed in Section B.9 in a meeting on November 8, 1993. As discussed in the document manager’s November 17, 1993 complaint to the Office of Special Counsel, these included, inter alia: (a) that Jo Ann Harris (the subject of the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris”) steered a lucrative handwriting analysis contract in the Dean case to a friend rather than employ the FBI at no cost to the office; (b) that Bruce C. Swartz unnecessarily retained his former law firm as an outside consultant; and (c) that FBI agents and members of the Independent Counsel staff used government-leased vehicles for personal reasons including commuting to work. See also the document manager’s FBI letter, which discusses the leasing of cars from a private company at higher expense than from the General Services Administration precisely to facilitate personal use of the vehicles, as well as the falsifying of a document regarding an accident while a vehicle was so used.

As discussed in the November 17, 1993 complaint, on November 16, 1993, Adams advised the document manager that Adams was satisfied that the matters could be explained away. But Adams also advised the document manager that, supposedly due to the need to make staffing cuts, he was terminating the document manager. Notwithstanding the manner in which Adams dealt with the matter in November 1993, the evident fiscal abuses brought to his attention by the document manager or that otherwise came to his attention may still have been on Adams’ mind. With respect to other fiscal abuses, see the document manager materials suggested as further readings below.

C. Paragraph 94 – the Appointment of Adams’ Successor and the Resolution of U.S. v. Dean

More pertinent to issues addressed in the February 22, 2011 Truth in Justice item is paragraph 94, where Adams discusses his selection of Larry D. Thompson, who had been working with Adams since 1990, to take over as Independent Counsel in 1995. When one has engaged in conduct in a still pending case that includes the covering up of something that many would regard as the suborning of perjury (as discussed in Section B.1 of PMP and below) and has otherwise allowed his subordinates to repeatedly deceive the courts in responding to allegations of misconduct (as discussed in the Bruce C. Swartz profile and several Truth in Justice items), it is important to be succeeded by a hand-picked person, and ideally one who has already been involved in actions undertaken by the office. The last thing one wants in the circumstances is to turn the office over to some person not previously privy to questionable or unconscionable conduct within the office, who, for all one knows, may turn out to be a person of principle.

In a December 1996, Dean moved to overturn the one remaining part of the John Mitchell count – that involving the Arama project, which, as discussed in the March 10, 2011 item, is the matter where Adams’ attorneys most obviously fabricated a charge involving Mitchell. The evidence available to Independent Counsel attorneys before the charge was brought made it clear enough that the funding occurred as a result of Mitchell’s interaction with Lance H. Wilson, Dean’s predecessor as Executive Assistant to the Secretary of HUD. And, in support of her motion, Dean submitted an affidavit from Wilson confirming such fact. Inasmuch as Dean’s innocence of the charge was known to Adams’ attorneys before it was brought, there is little reason to think that Adams would regard the matter differently as a result of the Wilson affidavit. In any case, whether Thompson consulted with Adams or not, Thompson opposed the motion, and did so successfully on the grounds that Wilson’s testimony was not newly-discovered evidence.

Further, In February 1997 Dean moved to dismiss the entire indictment or a new trial on grounds that (a) additional evidence of misconduct had been discovered since the court ruled on her 1993 misconduct motion (including some matters addressed in the March 10, 2011 Truth in Justice item just mentioned); (b) Independent Counsel attorneys had deceived the courts in responding to her 1993 misconduct motion; and (c) there was diminished evidence of guilt because the court of appeals had overturned the verdicts on all or parts of a number of substantive counts. Given that trial Judge Thomas F. Hogan had seemed very close to overturning the verdict based solely on prosecutorial abuses identified in 1993, the motion was by no means frivolous. Thompson opposed this motion too. And, in seeking to strike it rather than respond to it, Thompson represented to the court that there had been no Independent Counsel efforts to deceive the court in responding to the 1993 motion. For reasons reflected in the Bruce C. Swartz profile and throughout Section B of PMP, the representation was patently false. But, from Adams’ perspective, Larry D. Thompson proved to be an excellent choice.

In paragraph 94 Adams also states, apparently in reference to the way that it took longer than expected for Thompson to wrap up the investigation: “Unfortunately it took a long time, and one of the reasons is that there were a few other cases that were on appeal and the Appellate Court was taking a great deal of time with them.” The statement suggests that the investigation was over at the time of Adams July 1999 interview. This was true in the sense that the Adams/Thompson final report had been issued and the office was closed or closing. But the matter was by no means over as to Adams’ most important case. Still pending in the district court were Dean’s February 1997 motion to overturn the entire verdict and a request to reconsider the denial of her motion to overturn the conviction as to the remainder of the John Mitchell count. Further, as a result of the court of appeals ruling, unless Dean could overturn the entire verdict, she still had to be resentenced.

Adams had taken a particular interest in Dean’s sentence. Section B.1 of PMP and several Truth in Justice items discuss that Bruce C. Swartz and Robert E. O'Neill attorneys pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would appear to categorically contradict Dean’s testimony about calling Cain in April 1989 when a HUD IG report was issued showing that John Mitchell had earned a HUD consultant fee. The idea was that, even though Dean had called Cain just as she said, Cain’s seeming denial of any recollection of the call would be literally true because it technically applied to the date the report was issued internally at HUD rather than the day it was released to the public. O’Neill then placed great weight on Cain’s testimony in provocatively attacking Dean’s credibility in closing argument. In post-trial proceedings, as part of an aggressive strategy to cover up Independent Counsel actions regarding Cain, Adams himself requested the probation office to recommend that the court increase Dean’s sentence by six months for lying about the call to Cain. In doing so, by letter of January 18, 1994, notwithstanding that the rationale that had underlain Cain’s testimony was that Dean merely had not called Cain on or about the date the report was published internally at HUD, Adams specifically represented to the probation officer (at 8) that “Agent Cain testified on rebuttal that to his recollection this conversation never occurred.” Whether or not I am correct that Adams’ effort to deceive the probation officer was part of a conspiracy to obstruct justice (undertaken with Independent Counsel attorneys Bruce. C. Swartz, Robert J. Meyer, and Claudia J. Flynn), it was a heinous act.

Adams succeeded in persuading the probation officer to recommend an increase in Dean’s sentencing level for lying about the call. But Judge Thomas F. Hogan evidently believed Dean had testified truthfully. So he declined to follow the probation officer’s recommendation.

(As discussed in the February 22, 2011 Truth in Justice item, however, Hogan refused to order the discovery that was likely to reveal the truth about the Cain testimony, and such refusal may have involved Hogan’s deference to a person of Judge Adams’ stature. An irony of such deference is that the more egregious the conduct, the less an inclined a deferential court will be to bring it to light.)

But Adams remained interested enough in the sentencing to argue the matter himself at the sentencing hearing of February 25, 1994 (at 11-12). As part of an argument that Dean should be sentenced at the higher end of the Sentencing Guidelines range, Adams stressed that the criminal justice system should not be perceived as favoring affluent defendants who could hire good lawyers, contrasting Dean with “a young minority representative who goes into a liquor store and steals a couple of bottles of liquor.” Given that Independent Counsel attorneys had employed so many tactics to overwhelm Dean’s single attorney and to take advantage of the racial and background differences between the jury and the defendant (as best summarized in Part V of the DC Bar Counsel materials) – leave aside that Adams’ attorneys would never have taken the chance of using Agent Cain in the manner they did but for the belief that an apparently categorical contradiction of the defendant by a black agent would have great impact on an all black jury – Adams’ making of this argument suggests a smallness of character of striking contrast to the impression created by the July 1999 interview.

In any event, observing that race had nothing to do with the matter, Judge Hogan instead chose the low end of the range, imposing a 21-month prison sentence, and allowing bond pending appeal. Then, on the basis of a ruling on a sentencing guidelines issue and the fact that it had overturned the verdict on all or part of a number of the counts on which Dean was convicted, the court of appeals had ordered that Dean be resentenced.

While Dean’s 1997 motions were still pending, in approximately July 1999, the case was transferred to the Department of Justice. It also refused to respond to Dean’s pending motions. Justice still had not done so in November 2001, when it reached an agreement whereby Dean agreed to withdraw all pending motions and make no further direct or collateral attacks on her conviction. In return, Justice recommended that Dean be sentenced to a term of probation that included six months of home detention, agreeing also to take no position as to the terms of the home detention. Dean was then sentenced to three years of probation including six months of home detention under terms that allowed her to go to work during the period of home detention.
Only then had what Robert E. O’Neill would describe as Independent Counsel Arlin M. Adams’ “showcase trial” come to a close.

Further Reading

For further reading, I recommend the document manager’s November 17, 1993 complaint to the Office of Special Counsel and FBI letter already mentioned, as well as his November 15, 1996 letter to the Office of Professional Responsibility, his May 15, 1997 Clarification to the Merit Systems Protection Board, and his Miscellany document. The document manager, incidentally, is the person who in a December 1997 telephone call told me that all he knew about Agent Cain’s role in the Dean case is that Cain was someone who thought of himself as highly principled; that he had to be taken into a room by Robert E. O’Neill and Bruce C. Swartz on some number of occasions to be persuaded to provide testimony that he was very reluctant to give; and that there was considerable celebration in the offices of the Independent Counsel when the manner in which Cain had been coached was not revealed on the witness stand. That was the missing piece of the puzzle I had been trying to solve since December 1994, when Associate Deputy Attorney General David Margolis first suggested to me that, even though Dean had testified truthfully about her conversation with Cain, Cain’s testimony that seemed to contradict Dean might have been elicited on the basis that it was also literally true. See the concluding paragraphs of Addendum 3 to the Swartz profile regarding the feigned indignation of Independent Counsel attorneys at accusations against “a career government employee.”

The document manager’s accounts provide an interesting piece of history and not only as the tragic story of what can befall a straightforward person, who is proud to be part of the government and just wants to do a good job, when he happens into the wrong environment. Particularly if read in conjunction with the materials on my Prosecutorial Misconduct and Misconduct Profiles pages, those accounts also illustrate, not how extraordinary power can sometimes be exercised corruptly, but how it can sometimes run amok. All under the guidance of an eminent jurist whom his brethren would assure: “No one has better carried out the role of independent counsel than you.”

Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material

by James Scanlan, Esq.

“I must say that, everything in the record belies any suggestion that the government had an interest in hiding information here. The government exceeded, in almost every area, its statutory obligation in terms of turning over materials.”

These words were spoken on November 15, 1994, by then Deputy Independent Counsel Bruce C. Swartz in defending prosecutor conduct in U.S. v. Dean before the United States Court of Appeals for the District of Columbia Circuit. Swartz currently is the Deputy Assistant Attorney General who deals with representatives of foreign nations on international criminal justice and counter-terrorism issues. He is discussed in my February 6, 2011 Truth in Justice editorial styled “Bruce Swartz – Our Man Abroad” with respect to the fact that, by putting Swartz forward to represent the Department of Justice before foreign nations, the Department has impliedly assured those nations that Swartz is a person of integrity.

Swartz’s interaction with foreign nations presumably includes dealing with extradition issues and, when necessary, assuring those nations that an extradited person will receive a fair trial in the United States. Swartz was in fact visibly involved with the United States’ decision to extradite Roman Polanski from Switzerland. The Los Angeles Times reported that Swartz held a meeting with Polanski’s attorneys where they presented arguments that because of prosecutorial and judicial misconduct in the Polanski prosecution, the United States should not seek Polanski’s extradition. The United States nevertheless went forward to request that Switzerland extradite Polanski. Switzerland, however, refused. According to the New York Times, the refusal in part rested on the United States' failure “to provide the records of a January [2010] hearing in Los Angeles County Superior Court that would have shown the judge in charge of the Polanski case in 1977 agreed that ‘the 42 days of detention spent by Roman Polanski in the psychiatric unit of a Californian prison represented the whole term of imprisonment he was condemned to.’”

Swartz is also the subject of the Bruce C. Swartz profile on jpscanlan.com. That item discusses the various ways Swartz endeavored to deceive the courts in covering up his own conduct and the conduct of those under his supervision in the Dean case. It also discusses my efforts to cause Swartz to be removed from his position in the Department of Justice because his conduct in the Dean case indicates he is unfit to represent the United States. And it discusses the Department’s refusal to examine such conduct, not on the basis that my allegations lack merit, but on the basis that, in its view, the matters in the Dean case suggesting or establishing that Swartz is untrustworthy were or could have been addressed in litigation.

In his statement in the court of appeals quoted above, Swartz was using the word “hiding” in a loose sense. There was no allegation that Independent Counsel attorneys actually hid anything. The allegation was rather that, notwithstanding an explicit instruction from the district court, Independent Counsel attorneys failed to segregate exculpatory material, instead leaving such material to be discovered or not discovered among hundreds of thousands of pages of discovery. The documents in question were two January 1984 telephone messages slips found in 1990 or 1991 in the files of former Attorney General John N. Mitchell, who had died in 1988. The message slips obviously pertained to Mitchell’s effort, commencing in January 1984, to secure HUD funding for a Dade County project called Arama. The Independent Counsel alleged that the defendant Deborah Gore Dean caused HUD to fund this project in order to benefit Mitchell, someone Dean regarded as a stepfather. But the message slips strongly suggested that the funding occurred because Mitchell contacted a person named Lance H. Wilson. Wilson, who was Dean’s predecessor as Executive Assistant to HUD Secretary Samuel R. Pierce, Jr., was a friend of Mitchell and was known to have helped Mitchell on other matters. And Wilson had evidently told Mitchell that he (Wilson) was talking to Assistant Secretary for Housing Maurice Barksdale about the matter and would keep Mitchell advised. The funding, which HUD records show to have been in the pipeline for several months, was authorized by Barksdale In July 1984, shortly after Wilson left HUD and was replaced as Executive Assistant by Dean.

After several times cryptically suggesting reasons why Independent Counsel attorneys did not regard the message slips as exculpatory and in fact regarded them as incriminating, in oral argument in the court of appeals, Swartz stated: “The government’s position is, far from being exculpatory, these notes showed that Barksdale was being contacted by the executive assistant.” Since the executive assistant was one other than the defendant, the point seemed lost on the court of appeals. In any case, that the court of appeals went on to “deplore” the failure to segregate the message slips as exculpatory material indicates that it did not believe Swartz’s representation. See Addendum 7 to the Swartz profile.

That statement by the court of appeals is one of the things that led the Office of Bar Counsel for the District of Columbia Bar to investigate Swartz, trial counsel Robert E. O’Neill, and other Independent Counsel attorneys for their conduct in the Dean case. This is the investigation that O’Neill, now U.S. Attorney for the Middle District of Florida, lied about on his application for that position, as discussed, for example, in my September 26, 2010 Truth in Justice editorial styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.” In that proceeding, as discussed in Addendum 7 to the Swartz profile, Swartz and O’Neill allowed an attorney to make the following representation on their behalf:

“[Respondents] wish to advise Bar Counsel that if they had noticed truly exculpatory documents within the production made in discovery, they would have specifically called the attention of defense counsel to those documents, rather than leaving the defense to discover then on its own.”

If not already evident, the falseness of that representation, even solely as to the message slips, is made clear beyond any doubt in Sections B.3 and B.3a of the Prosecutorial Misconduct page (PMP) on jpscanlan.com. Those sections also make clear that, whatever may be said about any other matter in U.S. v. Dean, Independent Counsel attorneys – including Jo Ann Harris who would soon be the Assistant Attorney General for the Criminal Division, as discussed in the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris” – calculatedly undertook to frame the defendant as to the Arama funding (posthumously framing former Attorney General John Mitchell in the process). Possibly this was done at least partly because John Mitchell caused Richard Nixon to break his promise to appoint Arlin M. Adams to the Supreme Court. See the February 22, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.” Possibly it was done because this and other meritless charges involving Mitchell were deemed important to establishing other charges that Independent Counsel attorneys may or may not have believed in. See Addendum 2 to the Swartz profile regarding Swartz’s false representation to the court of appeals as to whether the prosecution made a point of the fact that Mitchell was a former Attorney General. But, whatever may have been the reason, few rational people would say it was not done.

The principal point of this item, however, involves the actual hiding of exculpatory material, which, as noted, was not an issue when Swartz used the word “hiding” in the court of appeals. It is probably too late to determine whether the Mitchell message slips were in some manner hidden when Independent Counsel attorneys provided discovery to the defense. Section B.3a of PMP discusses that Independent Counsel attorneys, not yet aware whether the items were found by the defendant, took some pains to obscure that the two items were missing from the materials from Mitchell’s files produced in a vastly overinclusive preliminary exhibit production. But, in any event, these items were discovered by the defense in time to use them in the trial and in post-trial motions. Other exculpatory documents now known to exist were not discovered even in time for the post-trial motions and one of them was obviously hidden.

Two documents concerned a project called Park Towers, a matter also involving John Mitchell, but one as to which, notwithstanding a substantial volume of false evidence, the court of appeals would find insufficient evidence to sustain a conviction. Section B of the Swartz profile discusses Swartz’s post-trial effort to excuse the Independent Counsel’s attempt to lead the jury to believe that a conspiratorial reference to “the contact at HUD” in a Park Towers document was a reference to Dean even though immunized witness Richard Shelby had told Independent Counsel attorneys that the reference was to a Deputy Assistant Secretary named Silvio DeBartolomeis. At a February 14, 1994 hearing (at 9-10), Swartz defended that conduct on the basis that other evidence – in particular, the supposed facts (a) that there were no documents reflecting Shelby’s contacts with DeBartolomeis and (b) that Dean was responsible for a post-allocation waiver on the project – provided the Independent Counsel a basis to believe, and hence to lead the jury to believe, that the reference to “the contact at HUD” was in fact a reference to Dean. But there existed at least two documents that both reflected Shelby’s contacts with DeBartolomeis and showed that it was DeBartolomeis who was responsible for the post-allocation waiver.

While these documents contradicted a number of things Independent Counsel attorneys intended to prove at trial, they were not made part of a Brady disclosure. I do not know whether they were in some manner hidden or not. But I do know that they were not found by the defense in time to use them at trial or in post-trial proceedings. Thus, Swartz was able, with impunity, to lead the court falsely to believe that supposed facts (a) and (b) above were the actual reasons Independent Counsel attorneys believed it permissible to lead the jury to believe that Dean was “the contact at HUD.”

There can be no doubt, however, that Independent Counsel attorneys attempted to hide at least one important exculpatory document, The document pertained to an individual named Andrew Sankin, for whose benefit Count Two of Dean’s indictment alleged that Dean cause HUD to take a number of inappropriate actions. District Court Judge Thomas F. Hogan’s most severe criticism of trial counsel Robert E. O’Neill concerned Sankin. Hogan excoriated O’Neill for failing to alert the court and the defense of Sankin’s off-the stand statement that some receipts O’Neill introduced into evidence as if they reflected meals or gifts Sankin bought for Dean in fact did not apply to her. As explained in Section A of the O’Neill profile, O’Neill saw no reason to bring the remark to the attention of the court or defense because O’Neill knew from the outset that certain of the receipts did not apply to Dean. Swartz’s efforts to deceive the court in defense of O’Neill’s actions are described in Section C of the Swartz profile.

Sankin was a childhood friend of Silvio DeBartolomeis, already mentioned, who was a Deputy Assistant Secretary or acting Assistant Secretary during the period when Dean was alleged to have caused HUD to take actions to benefit Sankin. Issues existed as to whether Dean or DeBartolomeis was responsible for certain of these actions.

One document that Sankin produced relating to these issues was a 1988 Harvard Business School application in which he responded to a question concerning the manner in which he dealt with an ethical dilemma. Noting that a childhood friend (DeBartolomeis) was a HUD official who had authority over an allocation Sankin was seeking, Sankin stated that, because of the relationship, it was “a fait accompli that my client’s request would be approved.” Sankin then noted that there could be an appearance of impropriety if his friend signed the documents authorizing the allocation and described an effort to secure Dean's support in order to avoid that appearance.

One might debate the implications of the discussion of the effort to secure Dean’s support. But the document was clearly enough Brady material both as to the particular allocation and as to all other matters where there existed an issue of whether Dean or DeBartolomeis was responsible for HUD actions benefitting Sankin. The document obviously had received specific attention from Independent Counsel attorneys, for transmission markings on it showed that it was faxed to the Independent Counsel on May 29, 1992, five days before Sankin testified before the grand jury. While presumably such faxing occurred as a result of discussion of Sankin with Independent Counsel attorneys shortly before the document was faxed, no record of any discussion with Sankin was provided for the period between May 14 and June 6, 1992, and no materials that were produced on Sankin mentioned the application. If there did exist a report of an in-person or telephonic interview in which the item was discussed, as there should have been, it was never provided to the defense. It is known that at least one interview containing exculpatory information was never produced, that one involving Maurice Barksdale, who is mentioned above. See Section B.3b of PMP. As reflected in that section, rare are the opportunities for a defendant to learn that exculpatory material was never produced at all. Of course, rare, too, are the opportunities to learn that a document was hidden.

In any case, Sankin’s Harvard Business School application was sufficiently troubling to Independent Counsel attorneys that, leave aside that they failed to make a Brady disclosure, they did not include it at all among the materials on Sankin initially provided the defense. Then, in December 1992, the Independent Counsel turned over approximately 3700 unindexed pages of material identified as the Independent Counsel’s preliminary exhibit production. Included in these materials was a 562-page group of documents related to administration of the Stanley Arms, an apartment building Sankin managed for Dean’s family. It was a group of documents to which no one had reason to give other than cursory attention. Inserted thusly within that group of documents as the 510th and 511th pages was Sankin’s Harvard Business School application.

This item was not discovered in time to use in the trial or in post trial proceedings in 1993 and 1994. Dean did raise the matter in a 1997 renewed motion to overturn the verdict (Sec. IV.C.2) following exhaustion of the appeals process. The government never responded to this motion. As discussed in the introduction to PMP, in 2001, when the case was being handled by the Department of Justice, an agreement was reached whereby, in exchange for Dean’s withdrawing pending motions, the government would seek no confinement. But had the Independent Counsel or Department of Justice been forced to respond on the matter, it would have had to explain both why the application was not provided as Brady material and why it was hidden. A tall order.

I know nothing about the Polanski case save what I read in the referenced Times article. But I assume that whether or not the United States was able to persuade the Swiss government that no ill motive underlay the failure to produce the hearing transcript, Swartz was able to so persuade his superiors at the Department of Justice, perhaps on the basis that he would never intentionally hide relevant information. But there is also the possibility that, as with regard to varied actions of Swartz in U.S. v. Dean, his superiors have never required an explanation.

Illinois Repeals Death Penalty

*Breaking News*

Here is a message we are happy to share from Murder Victims Families for Reconciliation.

Reconciliation means accepting that you cannot undo the murder but you can decide how you want to live afterwards.
March 9, 2011

Dear Friends,

Illinois Governor Pat Quinn *just* signed the bill to repeal the death penalty and reallocate funds from its Capital Litigation Trust Fund to provide law enforcement training and services to families of homicide victims. This makes Illinois the 4th state in the country to repeal the death penalty since 2005, following New York, New Jersey, and New Mexico.

“Illinois joins a growing list states and other Americans who recognize that the death penalty simply does not work,” said Beth Wood, Executive Director of MVFR. “Illinois has been under a moratorium for ten years, has had two study commissions, and passed dozens of reforms to try and make the death penalty work. But the system continued to make mistakes while costing millions of dollars and dragging victims’ families through an endless ordeal.”

ACT NOW!

Take a moment to thank the Governor.

Please call Governor Quinn and thank him for his thoughtful attention and courageous decision in favor of repeal! He made history in Illinois today, and we need to let him know we're proud!

Springfield Office: 217-782-0244

Chicago Office: 312-814-2121

Scour your newspapers, blogs, and other websites for any mention of the Illinois repeal over the next few days. When you see some, send a letter to the editor or comment on the blog or web post in support of the repeal. Post the stories to Facebook or Twitter with a big hooray. Make sure to identify yourself as a member or supporter of MVFR in any comments, so that your legislators start to get the hint – you want repeal too [If you're in Illinois -- be sure to thank your legislators for this common sense move to improve the system]!

For every state that repeals the death penalty, we get one step closer here too. Momentum is contagious. This is a moment of celebration for us all!

Warmly,

Beth Wood, Executive Director

The Remarkable Careers of Sometimes Prosecutor David M. Barrett

by James Scanlan, Esq.

Those who examine the materials underlying my Truth in Justice editorials of June 26, July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, February 19, February 22, and March 3, 2011, including the Prosecutorial Misconduct page and the profiles on Robert E. O’Neill, Bruce C. Swartz, Arlin M. Adams, Jo Ann Harris, Paula A. Sweeney, and Robert J. Meyer, will find some remarkable things about the way attorneys under Independent Counsel Arlin M. Adams operated in U.S. v. Dean. Some related events are remarkable as well.

The 1990 appointment of Adams to investigate abuses of HUD housing programs arose out of congressional hearings that began in May 1989. They in turn arose out of an investigation by the HUD Inspector General (IG) of apparent improper influence in the allocation of funds in HUD’s moderate rehabilitation (mod rehab) program. The HUD IG investigation, headed by Supervisory Special Agent Alvin R. Cain, Jr. (who is mentioned or alluded to in many of the referenced Truth in Justice editorials and Addendum 1 hereto) had focused on Thomas T. Demery, Assistant Secretary for Housing from October 1986 until January 1989, and Demery’s seeming favoritism toward persons in the housing industry supporting a charity Demery helped found. After failing to have Demery removed from the mod rehab funding process in 1988, the HUD IG issued an extensive report in April 1989, naming Demery in its title.

The principal congressional hearings, which ran until May 1990, were chaired by the late Congressman Tom Lantos. They are discussed on the Lantos Hearings page of jpscanlan.com, especially in an approximately 25,000-word document that I shall refer to here simply as the Inquiry Document. It discusses the way that Demery, aided by the public relations firm of Hill & Knowlton and his own ardent denials of any impropriety, including denials that he even knew the identity of developers and consultants benefiting from his funding decisions, was generally quite successful in steering the congressional investigation and most of the press interest away from himself. Demery might have been entirely successful but for HUD’s October 1989 release of documents from Demery’s word-processing diskettes, which, among other things, included a November 1, 1987 list of pending mod rehab requests matched with the developers or consultants promoting the requests. That item alone seemed to establish that several of Demery’s sworn statements were false. Limiting the count to matters that are pretty clear, materials eventually available, including confessions by Demery, would seem to indicate that Demery lied to the Lantos subcommittee or the House Banking Committee about 30 times. See Appendix D to my August 30, 1997 letter to Independent Counsel Larry D. Thompson.

There are many remarkable things recorded in the Inquiry Document, especially concerning a congressional committee’s ability and desire to find the truth about something it purports to be investigating. The influence of Hill & Knowlton on the proceedings, discussed in Sections A.3 and B.3 of Part II, should be appraised in conjunction with information first disclosed by John R. McArthur concerning the role, in October 1990, of Hill & Knowlton (then retained by the Kuwaiti government) in presenting before Lantos’s unofficial Congressional Human Rights Caucus apparently false testimony aimed at causing the United States to go to war with Iraq (as discussed, with links provided, in item 1 on the Lantos Hearings page).

But the Inquiry Document was written sometime in 1991, well before an event that may be as remarkable as anything in the hearings themselves. Demery’s November 1, 1987 list had matched a Moore, Oklahoma mod rehab request with David M. Barrett. Barrett was a Washington lawyer and prominent Republican fundraiser who was also a housing developer involved in HUD-related programs. He also had a close relationship with Demery, as reflected, for example, in Demery’s July 29, 1987 letter observing, among other things: “ As always, I expect much fruit to come from the meetings you arrange.” Barrett had caught the attention of the HUD IG investigators early in their investigation, and, in a November 4, 1988 memorandum where the IG sought to have Demery removed from the mod rehab funding process, the IG (at 2) specifically cited Demery’s modifying of a Midland, Texas allocation to make it match the number of units in a Barrett project.

Through most of the Lantos hearings, however, Barrett managed to escape notice. And when a December 11, 1989 New York Times article raised issues about Barrett’s benefitting from his friendship with Demery, Demery responded, much in the categorical manner shown before the Lantos subcommittee: “I had [sic] never had any discussion with Mr. Barrett about Mod Rehab – period.”

But at a hearing on May 23, 1990, Lantos was possessed, perhaps reluctantly, of a Barrett Chronology that recorded Demery’s connections with Barrett reflected in Demery’s phone logs and word-processing diskettes, including the November 1, 1987 list matching Barrett’s name with the Moore, Oklahoma mod rehab request. So Lantos asked at least a few questions about Demery’s contacts with Barrett. In the hearing Demery acknowledged he had discussed the request with Barrett. But Demery also stated, though falsely, that the request matched with Barrett was not funded. Barrett then received some limited attention in the subcommittee’s final report, though rather less attention than seemed warranted based solely on information in the Barrett Chronology, the IG’s November 4, 1988 memorandum, and the May 23, 1990 hearing. See Sections II.B.1.c and III.B of the Inquiry Document

Publicly available information such as that recorded in the materials just mentioned would have provided Independent Counsel Arlin M. Adams a basis for a conspiracy charge involving Demery and Barrett that would have been considerably stronger than many conspiracy charges Adams did pursue. Such charge could well have involved a friend of Barrett named John Mamoulides, a district attorney in Jefferson Parrish, Louisiana who was also involved in housing matters, and who, along with Barrett, would arrange various things for Demery in the New Orleans area. For example, on November 23, 1987, the same day that Demery was causing the funding of the Moore, Oklahoma mod rehab request (while apparently leading HUD Secretary Samuel R. Pierce, Jr. to believe that it was funded because of interest of an Oklahoma Senator) Demery’s phone logs indicated that Barrett was advising Demery that Barrett and Mamoulides would take care of Demery’s accommodations in an upcoming trip to New Orleans. Any charge would likely be much stronger once the publicly available information was augmented with the types of information readily available to an Independent Counsel. The last overt act of such a conspiracy, so far as I know and assuming that neither Demery nor Barrett ever told Independent Counsel investigators anything false or misleading about their interactions and Demery’s funding decisions, would have occurred at the May 23, 1990 hearing when Demery falsely denied that the request he had matched with Barrett on the November 1, 1987 list was funded.

But Adams had plenty of other things to charge Demery with, which Adams in fact did, first in a 9-count indictment in June 1992, then in a 19-count superseding indictment in December 1992 (including causing, on November 23, 1987, the funding of another mod rehab request on the November 1, 1987 list for someone who had provided him free accommodations). The referenced Inquiry Document suggests that Barrett was among a large number of persons whose connections with Demery might have formed a basis for prosecution. Indeed, but for a preoccupation with finding that it had been unfair for the HUD IG to single out Demery in the title of the mod rehab report, the Lantos subcommittee might well have found that few decisions Demery made in the many programs he administered were made for reasons other than to benefit a friend or compensate someone for past or future favors.

In any event, the failure of Adams’ attorneys to take an interest in Demery’s connections with Barrett caused the Barrett story to remain dormant until May 24, 1995. On that day – which, coincidentally, may have been the day after the limitations period expired on a conspiracy involving Demery and Barrett – the D.C. Circuit’s Division for the Purpose of Appointing Independent Counsels (usually referred to as the “Special Division”) appointed Barrett to the position of Independent Counsel to investigate whether HUD Secretary Henry Cisneros lied about payments to a mistress during his background investigation. The next day, a Washington Post account of the appointment was largely devoted to recording opinions on what an excellent Independent Counsel Barrett would make, with only passing reference to Barrett’s mention in the matters investigated by Lantos. On the same day, the New York Times gave Barrett’s involvement in those matters much greater attention, quoting Lantos’s observation that the appointment was “mindboggling.”

Independent Counsel Arlin M. Adams, who had met with the Special Division on May 15, 1995 to discuss his own resignation, apparently raised no objection to the Barrett appointment either before or after it took place. Four year later, Adams would tell the Washington Post that he could not recall being asked about it. See Addendum 1 hereto.

The Barrett tenure as Independent Counsel would be a matter of some controversy, at least for its protraction. In January 1997, when Barrett had expended but $902,000, a Legal Times article would bear the title “What’s Taking David Barrett So Long?” In January 2006, when Barrett was forced, against his will, to shut down the investigation, it had expended $22,750,000 – some of that, according to an Acknowledgment included in Barrett’s report (at sixth page), paid to John Mamoulides (who retired from his district attorney position in 1996). While for a time some observers supported Barrett’s claims that a cover-up had thwarted his investigation, the prevailing view was probably closer to that of former Justice Department official Robert S. Litt (now General Counsel of the Office of the Director of National Intelligence), who in a May 21, 2005 letter described the investigation as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” For reasons expressed in many editorials here, I do not automatically regard a Justice Department official’s appraisal of prosecutor conduct as insightful, or even as bearing a relationship to reality. I do, however, believe that the 1997 Legal Times piece was aptly titled.

Yet, if Barrett’s tenure as an Independent Counsel was remarkable, it is not clear that it was more remarkable than the appointment itself. The Inquiry Document presents an unflattering picture of Tom Lantos’s conduct of the HUD hearings. But it is hard to disagree with him as to the remarkable nature of the Barrett appointment. In that regard, it may rival the recent appointment of Robert E. O’Neill as United States Attorney, notwithstanding, among other things, that he lied on his application for the position.

Barrett is again on the Washington scene as part of a lobbying firm called Barrett Capitol Strategies. The firm touts its extensive Capitol Hill and agency contacts – the assets that made Barrett a major beneficiary of HUD programs and that may as well have caused him to receive only limited attention in the Lantos hearings and none from Independent Counsel Arlin M. Adams, and, for that matter, that may have led to his appointment as Independent Counsel. Barrett’s Barrett Capitol Strategies biography only briefly mentions his role as Independent Counsel, adding:

Upon completion of his investigation Barrett was awarded the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award. The inscription reads, “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation,” signed Louis Freeh, Director.

In light of the encomium from FBI Director Freeh, one might wonder whether Barrett’s investigation was as improvidently protracted as many believe. I do not doubt that Barrett received the award, just as I did not doubt it when the award appeared in Barrett’s biography while he was Independent Counsel. But as reflected by the earlier biography, Barrett received the award prior to the 2006 conclusion of his investigation. Presumably, he received it, for whatever reason, no later than June 2001, the last month in which Louis Freeh served as Director of the FBI.

Would but that we could all so easily recast problematic episodes of our pasts. Compare Robert E. O’Neill’s representation that a District of Columbia Bar Counsel investigation of his conduct in U.S. v. Dean was initiated by the convicted defendant rather than by Bar Counsel itself, as discussed, for example, in the September 26, 2010 Truth in Justice item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.”

Addendum 1 – David M. Barrett and Judge Thomas F. Hogan
Through no fault of his own, David M. Barrett – or, rather, the mention of his name – may have had an important role in the outcome of U.S. v. Dean, which was tried before Judge Thomas F. Hogan, a close friend of Barrett. The document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” discusses the way that, shortly before calling Supervisory Special Agent Alvin R. Cain, Jr. to provide immensely improbable testimony in seeming contradiction of the defendant’s testimony, Independent Counsel attorneys sought to undermine the defendant’s credibility in Hogan’s eyes by bringing to his attention the defendant’s innocuous off-the-stand remark about Barrett and Hogan. (Compare that document’s interpretation of factors influencing Hogan with the interpretation in my February 23, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.”) The document styled “The Responsibility of Independent Counsel Arlin M. Adams for the Appointment of Independent Counsel David M. Barrett” addresses the likelihood that the manner in which Independent Counsel attorneys had used the statement about Barrett and Hogan influenced the decision of Independent Counsel Arlin M. Adams not to bring to the attention of the Special Division the varied matters calling into question the suitability of Barrett to serve as Independent Counsel.

Addendum 2 – Thomas T. Demery’s Sworn Denials That He Ever Lied to Congress
Thomas T. Demery also had an important role in U.S. v. Dean. In 1992, the Independent Counsel indicted Demery for perjury for lying to Congress. In the course of reaching a plea agreement that did not include a perjury charge, Demery acknowledged that the statements underlying his perjury charges in the indictment were false and also acknowledged things that would have formed bases for similar charges. Pursuant to an agreement whereby he might avoid prison if he provided completely truthful testimony as a cooperating witness, Demery testified for the government in the Dean case. In doing so, just as he had repeatedly and unequivocally lied to Congress, Demery repeatedly and unequivocally denied that he had ever lied to Congress. Section B.6 of the Prosecutorial Misconduct page and the materials it references address the varied remarkable – nay, astonishing – things Bruce C. Swartz and other Independent Counsel attorneys, as well as retained counsel, said to make the courts in the Dean case believe that trial counsel Robert E. O'Neill did not recognize that Demery’s denials of ever having lied to Congress were false, as well as the Independent Counsel’s implied representation to the court in Demery’s own case that Demery had provided completely truthful testimony in fulfillment of his plea agreement. That section and Section E.3 of the O’Neill profile also address the improbability that Demery would have falsely denied having lied to Congress unless instructed to do so by O’Neill.

The presumption of innocence

The following opinion by Stephen Boyd was published by the Winston-Salem Journal on March 6, 2011.


On Dec. 21, 2003, Willard Brown ended a tragic episode in our community's history by admitting to the police that he raped and murdered Deborah Sykes in August 1984. He apologized to Sykes' family and to Darryl Hunt, admitting that Hunt had nothing to do with it.

Since Hunt's exoneration in February 2004, the Journal has published more than a few letters and had reader responses posted to its website that express an unfortunate sentiment: If Hunt didn't do this, he did other things in the past or would do things in the future for which he probably deserved to go to prison, keeping our streets safer.

I might well have agreed — before I started paying close attention. Having moved to Winston-Salem two weeks after Hunt's first trial in 1985, I did not pay much attention to the coverage of the saga and, if asked, might have repeated what the police and district attorney's office said repeatedly to the press: There were several people involved in the murder, and Hunt was probably one of them.

After reading Phoebe Zerwick's series in November 2003 and talking with Larry Little and the Revs. Carlton Eversley and John Mendez, I began to pay more attention. What I have learned subsequent to 2003 has changed my perspective radically.

In 1985, Hunt was offered a $12,000 reward and told he would not be charged in the crime, if he simply said his friend, Sammy Mitchell, did it. He said, "No, not if I have to lie on Sammy to get it." After his conviction was overturned and before the second trial, the prosecution offered him a plea bargain: Admit to second-degree murder and he could go home that day with the five years he had already served. Hunt said, "No." When asked why, he gave two reasons: He wouldn't bear false witness, and Sykes' family deserved to know who killed her. Had Hunt agreed to either of those offers, justice would never have been served. Justice requires that the right person be convicted and incarcerated, not simply someone against whom a case can be made.

In 1994, Mark Rabil and Hunt's defense team, over the objections of the prosecution, petitioned that DNA analysis of the rape kit be conducted. That analysis revealed that the three suspects implicated in the state's theory of the crime — Hunt, Mitchell and Johnny Gray — could not have been the rapist. Knowing then that the rapist was not in custody, neither the Winston-Salem Police Department nor the district attorney's office reopened the investigation to identify Sykes' brutal murderer.

Rabil, however, kept filing appeals and, finally, in spring 2003, filed a motion to test the DNA evidence in a North Carolina database of violent, convicted felons. That testing led to the identification of Willard Brown as the murderer.

Fortunately, or providentially — as I believe — the case was solved, but not without a very high price and not without the courage, persistence and integrity of both Hunt and Rabil and, along with them, a number of other community advocates for justice, who would not give up on the truth.

So, a decision to pay more careful attention and to develop relationships with some of those involved in these events taught me several lessons. In order to preserve a cardinal principle of our criminal-justice system — the presumption of innocence — we, in the community and in the jury box, must listen and make informed judgments, not simply hold opinions based on those of others. We must carefully distinguish any particular person, along with his or her past — real or perceived — from the crime with which they are charged and wait for evidence, and then weigh its credibility without prejudice.

As for the opinion that our streets would be safer without Hunt among us, I couldn't disagree more. Since his release, Hunt has created the Darryl Hunt Project for Freedom and Justice that educates the public about needed reforms in areas such as more effective eyewitness identification procedures, reviews innocence claims of inmates and helps ex-offenders break the cycle of recidivism. He also serves on the board of directors of the North Carolina Center on Actual Innocence; as chair, Client Policy Group, National Legal Aid Defenders Association (Washington, D.C.); and on the board of the North Carolina Prison Legal Services.

I am very glad that Hunt is back in our community and am honored to work with him and others in these community efforts, including pursuing truth and justice in the Silk Plant Forest Case. If the enrichment that comes from paying closer attention and developing new relationships appeals to you, visit the website http://darrylhuntproject.org/ and join us.

Stephen Boyd is on the advisory board of the Darryl Hunt Project for Freedom and Justice and is the Easley professor of religion at Wake Forest University. He is the author of the forthcoming book Making Justice Our Business: The Wrongful Conviction of Darryl Hunt and the Work of Faith.

In Gould And Taylor Case, Does Connecticut Supreme Court Know The Law?

The following opinion was published in the New Haven Advocate on March 2, 2011.

Doubt it

by David R. Cameron

After the recent oral arguments before the Connecticut Supreme Court, the fate of George Gould and Ronald Taylor may depend on what the justices decide constitutes “clear and convincing evidence” of actual innocence. But judging by their questions and comments, it’s not clear they know what that means.

Gould and Taylor were convicted in 1995 of murdering a New Haven bodega owner in the early hours of July 4, 1993 and sentenced to 80 years in prison. They were convicted because of the testimony of Doreen Stiles, a former drug-addicted prostitute. Stiles said that as she approached the store she heard voices demand that a safe be opened, screams in Spanish, and a gunshot. Moments later, she saw two men leave. She identified Gould and Taylor as the men.

There was no other evidence linking them to the murder. In his closing statement, the trial prosecutor told the jury, “This case rises and falls on the testimony of Doreen Stiles. If you believe her, you’ll convict. If you think she’s lying, you’ll acquit.”

Many years later, Stiles recanted. At a 2009 habeas hearing before Judge Stanley T. Fuger, she testified she had not been near the store, had not seen the men, and had made up the whole story during a six-hour interrogation in which she was threatened with arrest and offered assistance in buying heroin.

Stiles was hospitalized at the time of the trial and her testimony was videotaped, so Fuger was able to see it and compare it with her testimony at the habeas hearing. He concluded she lied in her trial testimony and threw out the convictions.

The state challenged his decision, claiming he applied the wrong standard of proof to their claim of actual innocence, that Stiles’ recantation alone was not sufficient to establish their innocence and they were obliged to prove they were actually innocent.

In Miller v. Commissioner of Correction (1997), the Court established a two-fold standard of proof that a habeas petitioner must meet in order to prevail on a claim of actual innocence. First, the petitioner must persuade the habeas court by “clear and convincing evidence” that the petitioner is actually innocent. Second, the petitioner must establish that, after considering all of that evidence, no reasonable fact finder would find the petitioner guilty.

The question before the Court reduced to this: If, as the trial prosecutor told the jury, the only evidence supporting the conviction of Gould and Taylor was Stiles’ testimony and if that testimony was, as Stiles later testified and Fuger concluded, fabricated in its entirety, does that constitute “clear and convincing evidence” of their actual innocence?

Supervisory Assistant State’s Attorney Michael O’Hare said no, her recantation alone did not constitute proof of their actual innocence. Several justices appeared to agree with his position that Gould and Taylor needed to affirmatively prove their innocence.

But O’Hare and the justices neglected an essential part of the Miller ruling. After establishing the “clear and convincing” standard, that ruling went on to say, “The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.” As the Court put it in an earlier ruling, quoted in Miller, it is “a standard higher than a probability but lower than beyond reasonable doubt.”

Several individuals have been exonerated here for crimes they did not commit and for which they spent many years in prison. The reasons for their wrongful convictions varied. But all of the wrongful convictions shared one attribute in common: all were affirmed by the Connecticut Supreme Court.

By the standard set forth in Miller, Stiles’ credible recantation of her trial testimony, which constituted the only evidence supporting their conviction, represents “clear and convincing evidence” that George Gould and Ronald Taylor are actually innocent. Hopefully, before deciding the case, the justices will read Miller again and realize that “clear and convincing” means just that – clear and convincing.

David R. Cameron is a professor of political science at Yale University.

The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris

by James Scanlan, Esq.

Referrals to the profile I maintain on Middle District of Florida U.S. Attorney Robert E. O’Neill suggest that the most read of my Truth in Justice editorials concerning O’Neill is the September 26, 2010 item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.” It discusses that, given that he undeniably lied in his U.S. Attorney application, O’Neill might wish to avoid situations where he could be asked about the matter. But Addendum 1 to that item reminds the reader that, though lying on the application should have disqualified O’Neil from the U.S. Attorney position, it was a relatively minor matter compared with O’Neill’s conduct in U.S. v. Dean, including the use of the misleading testimony of Supervisory Special Agent Alvin R. Cain, Jr. to lead the jury falsely to believe that the defendant lied on the stand.

In fact, as reflected in the O’Neill profile and my Prosecutorial Misconduct page (PMP), O’Neill was involved in a pattern of deceit of a scope that may be unrivaled among cases where such patterns have come to light. And, as discussed in a February 22, 2011 Truth in Justice item about Arlin M. Adams (“Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams”), the pattern of deceit began with the grand jury even before an indictment was issued containing many statements or inferences that Independent Counsel attorneys knew or believed to be false.

It thus warrants note that O’Neill was not in charge of the case when the indictment was issued and when decisions were initially made (a) to fail to make Brady disclosures of any documents contradicting or calling into question things Independent Counsel attorneys intended to prove at trial and (b) to fail to disclose any exculpatory information in witness statements that would be provided to the defense as Giglio or Jencks material when a witness testified. These positions were taken notwithstanding firm instructions from Judge Gerhard A. Gesell to turn over all exculpatory material “right away, as soon as you know it.” The former position, evident in Independent Counsel conduct, was never fully explored in the case, though it would partly underlie the court of appeals’ “deplor[ing]” of Independent Counsel conduct. The latter position, more or less hidden until the case reached the court of appeals, would there be characterized by Judge Laurence Silberman as “ridiculous.”

At the time the grand jury was being misled by Independent Counsel attorneys, and that decisions were made not to disclose information contradicting the indictment in a timely manner (or at all), the lead counsel in the case was Jo Ann Harris, on whom I maintain a profile similar to those maintained on O’Neill, Adams, and Bruce C. Swartz. Harris returned to private practice in New York sometime in 1992. O’Neill then became lead counsel and tried the case over a six-week period in September-October 1993.

Harris was in Washington during a good part of the trial, however. O’Neil in fact sought to call her, like Agent Cain, as a rebuttal witness. Whether or not Harris was much in consultation with Independent Counsel attorneys during the trial, she did join them for a celebration following the verdict. Probably she learned then, if she did not already know, of the manner in which Agent Cain’s testimony had been used at the trial.

Harris was in Washington during the Dean trial because in early September 1993 she was nominated to be Assistant Attorney General for the Criminal Division of the U.S. Department of Justice. She was then confirmed on November 21, 1993. Because of Harris’s position as Assistant Attorney General, her story may be as interesting as those of O’Neill, Adams, and Swartz. That holds whether or not her position affected the outcome (so far) of those stories.

On December 1, 1994, when I submitted to the Department of Justice the main body of materials on prosecutorial abuses in U.S. v. Dean (as described in Section A of PMP), I noted, for routing purposes, that Assistant Attorney General Harris had been involved in the matters addressed in the materials. Harris was not discussed when I met with Associate Deputy Attorney General David Margolis on the week of December 12, 1994. It was in that meeting that Margolis suggested to me the possibility that Agent Cain’s testimony was elicited on the basis that, even though the defendant’s testimony that Agent Cain seemed to contradict was true, Agent Cain’s testimony was also literally true. See Section B.1 of PMP. Even though I would eventually recognize that this interpretation was correct, it is not easy to derive it from the materials I had provided the department. Cain’s testimony was constructed specifically to prevent anyone from reaching that conclusion, and, moreover, as most people read the English language, the testimony was not literally true. Thus, Margolis may have been informed of the literal truth rationale by someone familiar with the matter, perhaps even by Harris, who, as Acting Deputy Attorney General, had been Margolis’s immediate superior earlier in the year. Of course, that Margolis thought that the literal truth of the testimony somehow made Independent Counsel conduct less egregious than I maintained is hardly a testament to the ethical sense of someone who has been regarded as the Department’s conscience for the last several decades. See Section B.8 of PMP and my May 25, 1995 letter to Margolis (at 12).

While the Department was considering the materials I provided it, by letter dated February 9, 1995 to White House Counsel Abner J. Mikva (enclosing the materials I had earlier provided the Department of Justice) I sought to have Harris removed from her position as Assistant Attorney General on the grounds that her conduct in the Dean case indicated she was unfit to represent the United States. By letter of March 8, 1995 (with copy to the Deputy Attorney General) Judge Mikva advised me that, given my having earlier brought the information to the attention of the Department of Justice, he had “every confidence that the Department of Justice will consider the matter carefully and take appropriate action.”

Sometime later that month, Harris informed Attorney General Janet Reno that, for personal reasons, she was resigning at the end of the summer. In a letter dated May 18, 1995, referencing the March 1995 conversation, Harris then formally advised Reno of her resignation “effective around the end of summer.” Harris stated that upon assuming her position she had made a firm commitment to her husband to serve only two years. But the letter does not suggest that Harris had at any time previously (or previous to March 1995) informed Reno or anyone involved in the appointment process of such commitment. According to the former document manager discussed in Section B.9 of PMP (with regard to, inter alia, his complaints that while in charge of the Dean case Harris had improperly steered a lucrative contract to a friend), the Assistant Attorney General position had been Harris’s dream job and people he still knew from the Independent Counsel’s office were surprised by the resignation. Thus, as discussed more fully in the Harris profile, it is possible that raising the matter with the White House led to Harris’s resignation. But that should have happened solely as a result of my having brought Harris’s conduct to the attention of the Justice Department in December 1994.

Before leaving the Department in September 1995, Harris would, in June 1995, hire Bruce C. Swartz as a special assistant and then, shortly before her departure, recommend him for a $3500 special achievement award. One can only speculate as to whether the award was motivated solely by Swartz’s several months of service for the Department of Justice or Swartz’s many actions as Deputy Independent Counsel in furthering a scheme of deceit originally undertaken by Harris in 1992. For that, $3500 seems a pittance. But it was probably the best Harris could do given that Swartz had officially been an employee of the Department for less than 90 days when Harris recommended the award.

In any case, Swartz stayed with the Department after Harris left. Though apparently Swartz himself left the Department for a period commencing in January 1998, the problems of having a person of Swartz’s doubtful character serve for most of the last decade as the principal representative of the Department in dealing with foreign nations (as discussed in my February 6, 2011 Truth in Justice item styled “Bruce Swartz ­– Our Man Abroad”) would seem in significant part the fault of Harris. To be sure, it is also the fault of the Department for rehiring Swartz and for its many refusals to examine Swartz’s conduct in U.S. v. Dean as it bears on his fitness to represent the United States.

In responding to Judge Silberman’s concerned questioning in the court of appeals about the decision not to disclose as Brady material exculpatory information in witness statements that would later be provided at trial, Swartz sought deference in the matter by pointing out that the person who made the decision was, at the time of the argument, the Assistant Attorney General for the Criminal Division. Readers may be pleased to know that Swartz’s point had nothing like the desired effect on Judge Silberman. I have found no indication that during her tenure as Assistant Attorney General Harris attempted to cause all, or any, federal prosecutors to adopt the disclosure position Harris took in the Dean case. The peculiar utility of the approach, it should be recognized, is limited to situations where (a) an indictment contains false statements or inferences and (b) the government is possessed of witness statements specifically contradicting those statements or inferences. That is not every case. But the conduct of Harris and other experienced federal prosecutors in U.S. v. Dean indicates that is some cases.

After leaving her position, Harris did some work for the Department of Justice as a contractor. An Inspector General’s finding that a 1996 sole source contract issued by a former subordinate to pay Harris $27,000 for 42 days work was improper in a number of respect is discussed in the Harris profile. For some time, Harris has been a Scholar in Residence at Pace University Law School. She frequently writes letters commenting on the suitability of candidates for appointment to Department of Justice and federal court positions. She was quoted in the Washington Post in 2007 observing that one of her former special assistants, a candidate for a federal appellate judgeship, was “as straight an arrow as I have encountered.” Possibly one day she will have occasion to provide an opinion on the integrity her former special assistant Bruce C. Swartz.

See my December 23, 1997 letter to Justice Department Inspector General Michael R. Bromwich regarding whether the Department’s handling of my requests for an investigation of the Office of Independent Counsel and for the removal of Swartz and others from positions in the Department was influenced by concern that a good faith investigation would have found that Harris, Swartz, and others in the Department had violated federal laws prosecuting the Dean case. But, as we have recently learned from such things as the Department’s refusal even to consider whether O’Neill’s false statement on his U.S. Attorney application should disqualify him from the position (as discussed, for example, in the October 3, 2010 Truth in Justice item styled “Whom Can We Trust?”), the Department does not need compelling or even logical reasons to decline to examine the conduct of its officials.