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.