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.