Wednesday, June 29, 2011

Robert E. O'Neill's Tricks of the Trade - One

Robert E. O'Neill's Tricks of the Trade - One
(The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)
by James Scanlan, Esq.

Robert E. O'Neill, since October 2010 United States Attorney for the Middle District of Florida, is one of the most important federal law enforcement officials in the country. He is also a gifted trial attorney. But he has shown himself to be a dishonest prosecutor, one, indeed, who could be considered a master of deceit. This is the first of a number of items describing certain deceitful tactics O'Neill employed as an Associate Independent Counsel in the 1993 prosecution of United States v. Deborah Gore Dean. These items should be useful reading for anyone representing someone prosecuted by O'Neill. Further, inasmuch as the United States Department of Justice is on record that the actions of O'Neill in the Dean case did not constitute outrageous government misconduct or even prosecutorial abuse of an exceptional nature and did not call into question O'Neill's fitness to prosecute federal cases, the items may well provide useful insight into the way other federal prosecutors sometimes operate. In any case, readers are likely to find the described conduct surprising if not remarkable, while leaving open the question of how commonplace it might be.

This item involves the way O'Neill and Deputy Independent Counsel Bruce C. Swartz caused a government agent to testify in a manner that would seem to categorically contradict truthful testimony of the defendant, thus enabling O'Neill to rely on the testimony to provocatively assert that the defendant lied on the witness stand. It is discussed at length in Section B.1 of the main Prosecutorial Misconduct page of and Section B of the Robert E. O'Neill profile. Most of the other matters that will eventually be treated here are also at least touched upon in that profile.

Most readers of this item are likely to regard Robert E. O'Neill and others involved in the described conduct and the subsequent efforts to cover it up as unfit to hold public office and to believe that at least O'Neill and Swartz should have been prosecuted and spent some time in prison for their actions. Persons disposed to regard the described conduct as clever or ingenious should keep in mind the involvement of Swartz in each aspect of the matter. Swartz, for the last decade the Deputy Assistant Attorney General in the Department of Justice Criminal Division in charge of international matters, is regarded to be quite brilliant and one can observe elements of an unprincipled ingenuity in Swartz's later efforts to cover up the matter in post-trial proceedings. Very likely the same ingenuity has been manifested in varied actions of Swartz in representing the Department of Justice to foreign nations. See Truth in Justice items of February 6, 2011 ("Bruce Swartz - Our Man Abroad") and March 10, 2011 ("Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material"). But O'Neill is no doubt ingenious enough in his own right.

A. Background

Count One of the Superseding Indictment in the Dean case alleged that the defendant Deborah Gore Dean caused the Department of Housing and Urban Development (HUD) to take certain actions concerning moderate rehabilitation subsidies in order to benefit clients of former Attorney General John N. Mitchell, a person Dean regarded as a stepfather. Mitchell had died in October 1988, about six months before the abuses of HUD's moderate rehabilitation program became public as a result of the April 1989 release of a report by the HUD Inspector General. A crucial issue in the case was whether Dean was aware that Mitchell earned HUD consulting fees while she was employed as Executive Assistant to HUD Secretary Samuel R. Pierce, Jr. between June 1984 and September 1987. No evidence suggested that while Dean was at HUD she was aware that Mitchell earned HUD consulting fees, and two immunized witness provided testimony suggesting that Dean was unaware of such fact.

Dean testified that she first became aware that Mitchell earned any HUD consulting fee from the HUD Inspector General's Report "on the day the report came out" in April 1989. The report, which was authored by HUD Supervisory Special Agent Alvin R. Cain, Jr., was dated April 17, 1989, and released to the public on April 27, 1989. Page 1d of an introduction to the report stated that Mitchell had earned a $75,000 consulting fee for assistance, commencing in January 1984, in securing funding for a 292-unit Dade County, Florida moderate rehabilitation project called Arama.

On October 12, 1993, during the fourth day of her direct examination, Dean testified that she called Agent Cain to secure a copy of the report on the day it was released, providing details of her then having Marti Mitchell deliver a check to Cain to pay for the report and pick up a copy. Dean then testified that on opening the report she saw the statement in the introduction that Mitchell had earned the consulting fee relating to the Arama project. After stating that she called Cain again when she found the entry concerning Mitchell, Dean provided the following testimony regarding her conversation with Cain:

"I told him that I considered him to be a friend and I couldn't believe that he wouldn't have told me about this before now and that I knew it wasn't true, that John would never have done that, and that he better be prepared, because I was really mad, and I wanted to see the check, and if there had been a check written to John Mitchell, Al better have a copy of it, and I was coming down there, and if I found out that he was, in any way had misinterpreted or had misrepresented John's actions, I was going to have a press conference and I was going to scream and yell and carry on.

"And Al said, Al told me that he -"

A hearsay object prevented Dean from testifying as what Cain told her about the check. Such testimony would have been that Cain told her that he was sure there was a check but he had not seen it himself because it was then maintained in the Regional Inspector General's Office in Atlanta. She would also have stated that Cain's inability to produce a check prompted her to contact Mitchell's partner, who then advised her that Mitchell's involvements in HUD matters went beyond the Arama project.

Regardless of what Dean might have testified about what Agent Cain had told her about the check, however, Dean's testimony about calling Cain did little to prove that prior to issuance of the Inspector General's report she was unaware that Mitchell earned HUD consulting fees. For she could have called Cain merely to divert suspicion. But the testimony did offer Independent Counsel attorneys an opportunity both to undermine Dean's credibility and to obliquely (though not exactly logically) demonstrate that Dean knew about Mitchell's HUD consulting before the release of the report. They would do so not by disputing Dean's account of some particular of the call, but my making it appear that Dean never made the call at all.

This course subjected Independent Counsel attorneys to considerable risk. Presumably they were willing to assume that risk because they believed that their case was in jeopardy and that the apparent contradiction of the white defendant by a black federal agent would carry particular weight before an all-black jury.

B. Three Pieces of False or Misleading Testimony

Dean remained on the stand for all or part of five more trial days, including three days of cross-examination by O'Neill. But O'Neill asked Dean no questions about the call to Cain. Meanwhile, however, O'Neill and Swartz were seen to take Agent Cain into a room on some number of occasions to pressure or persuade Cain, a person who had to that date regarded himself as highly principled, to provide testimony he was very reluctant to give. The end result was a three-part pattern of deception, involving testimony that most observers would maintain was false and perjurious, but that all observers would regard as calculatedly intended to lead the jury to believe things the prosecutors knew to be false. This occurred on October 18, 1993, when, approximately an hour after the conclusion of Dean's eight days of testimony, O'Neill called Agent Cain as the Independent Counsel's second rebuttal witness.

1. Deception 1 - the date the report was "published"

The first false or misleading testimony O'Neill elicited from Agent Cain concerned the date the report was published. After eliciting the testimony as to Cain's background and the fact that he had been involved with the HUD Inspector General's Report, O'Neill conducted the following questioning of Cain:

"Q. And did there come a point in time, as you recall, that it was published?
"A. Yes.
"Q And do you recall when approximately that was?"
"A. The Section Eight Mod Rehab investigative report was published April 17, 1989."

Given that to publish something commonly means making something available to the public, left to his own conscience, Agent Cain would probably have said the report was published April 27, 1989, or provided information regarding both the internal release of the document and its later public release. But Swartz and O'Neill had apparently persuaded Cain, or pressured him into accepting, that a permissible interpretation of the word "published" could cover the internal release of the document at HUD - or at least do so sufficiently to preclude a perjury charge.

2. Deception 2 - "at or about that time"

After Cain provided April 17, 1989 as the publication date for the IG report, O'Neill then conducted the following questioning:

"Q. At or about the time that was published, do you recall having a conversation with the defendant Deborah Gore Dean?
A. A telephone conversation."

Asked to describe the nature of the conversation, Cain explained that Dean had sought a copy of the report from him and that he had provided a copy to her. He provided details of providing the report to Dean that closely comported with those Dean had provided, making it clear to the jury that Cain had a clear recollection of the events.

Once again, left to his own conscience, Cain would likely have clarified that that Dean had not called him when the report was released internally at HUD, but did call him ten days later when the report was released to the public. But apparently Swartz and O'Neill had persuaded Cain that the phrase "at or about that time" could be read to encompass both April 17, 1989, and April 27, 1989.

3. Deception 3 - "at or about that date"

After Cain provided the description of providing Dean a copy of the report, O'Neill concluded his direct examination of Cain with the following three short questions.

"Q. At or about that date, do you recall any conversation with the defendant Deborah Gore Dean in which she was quite upset with you about the contents of the report?
"A. No, I do not
"Q. Do you recall her mentioning John Mitchell to you and the fact that he made money as a consultant being information in the report?
"A. No, I do not.
"Q. Do you recall her telling you that she was going to hold a press conference to denounce what was in the report?
"A. Absolutely not."

Given that the obvious antecedent of "that date" was the day just described by Cain when he provided a copy of the report to Dean, left to his own conscience, Cain would presumably have acknowledged that Dean called him after he provided her a copy of the report. But apparently Swartz and O'Neill had persuaded Cain both (a) that "that date" referred to April 17, 1989, the only date Cain had mentioned in his testimony and (b) that, whereas "at or about that time" was broad enough to encompass both April 17, 1989, and April 27, 1989, "at or about that date" was not. Hence, Cain was persuaded that he could provide a negative response that, though intended to lead the jury to believe that Dean had not called him after she received a copy of the report, would literally mean only that Dean had not called him at or about April 17, 1989.

One will note that, in the manner of a skilled trial attorney, O'Neill casts his questions to Cain in a manner to make Dean's testimony that Cain would seem to contradict very vivid to the jury. But O'Neill does not make Dean's testimony as vivid as he might. For he avoids any reference to the most salient aspects of the Dean's testimony - the several references to the check and the insistence that Cain have a copy of it. Presumably O'Neill avoided such references in order not to highlight to the jury, the court, or Dean's counsel the implausibility not only of Dean's fabricating a story about calling Cain, but her being willing also to fabricate a story about what Cain told about the check. Very likely, as with other aspects the crafting of Cain's testimony, the perverse brilliance of Bruce C. Swartz was involved in the decision to say nothing about the check in the questions posed to Cain.

In any case, nothing regarding the semantic issues was revealed during cross-examination and thus considerable relief and elation were observed among Independent Counsel attorneys in their offices later that day.

C. O'Neill's Use of Cain's Testimony in Closing Argument

Agent Cain's firm denial of any recollection of the call from Dean played a quite important role in prosecutor Robert E. O'Neill's closing argument with implications for Dean's credibility going far beyond the John Mitchell count. Asserting that Dean's defense rested entirely on her credibility, O'Neill repeatedly and provocatively stated that Dean had lied on the stand - using some form of the word "lie" over 50 times. Three quarters of the way through the first day of the closing, O'Neill started to press the attack on Dean's credibility with particular acerbity, stridently stating:

"Based on her lies, you should throw out her entire testimony. Her six days' worth of testimony is worth nothing. You can throw it out the window into a garbage pail for what it's worth, for having lied to you."

Moments later, O'Neill derisively turned to Dean's denial that she knew Mitchell had earned HUD consulting fees until she read about it in the HUD Inspector General's Report:

"Shocked that John Mitchell made any money. Remember she went into great length about that. That she was absolutely shocked. And the day the I.G. Report came out she called Special Agent Alvin Cain, who was at HUD at the time, and said I'm shocked. I can't believe it. I thought you were my friend. You should have told me John Mitchell was making money. You'd better be able to defend what you said and if you can't I'm going to hold a press conference and I'm going to do something, I'm going to rant and rave. That's exactly what she told you.

"So we had to call in Special Agent Alvin Cain for two minutes' of testimony. And you heard Mr. Cain. It didn't happen. It didn't happen like that. And he remembered Marty Mitchell picking up the report, bringing the money, but it didn't happen. They asked him a bunch of questions about the Wilshire Hotel, and you could see Mr. Cain had no idea what they were talking about. We had to bring him in just to show that she lied about that."

In rebuttal the following day, in pressing the attack on Dean's credibility with a virulence at least equal to that of the day before, O'Neill again turned to Cain, asserting:

"Shocked that Mitchell made any money. Al Cain told you, the Special Agent from HUD, that conversation never ever happened."

As in O'Neill's questioning of Cain, in recounting Dean's testimony to the jury on both days of his closing argument, O'Neill made no mention of Dean's testimony about the check. Nor did he say anything about the fact that Dean had actually started to say what Cain had told her when she asked about the check. Possibly out of concern about any mention of the word "check," O'Neill even referred to Marti Mitchell's "bringing the money" rather than bringing a check, as had been stated by both Dean and Cain.

Also notably, in line with the literal truth rationale underlying Cain's testimony, O'Neill's initial remarks contain a reference to the "day the report came." But in rebuttal, O'Neill abandoned any deference to the literal truth rationale, instead characterizing Cain's testimony as showing that "that conversation never ever happened." A few days later, in a post-trial memorandum on sufficiency of the evidence, in seeking to derive from Cain's seeming contradiction of Dean evidence that Dean was in fact aware of Mitchell's HUD consulting prior to release of the report, Independent Counsel attorneys similarly characterized Cain's testimony to the effect that the conversation never occurred.

After Dean was convicted on all counts, in a post-trial motion alleging pervasive prosecutorial abuse, Dean maintained that Cain committed perjury and prosecutor knew or should have known that he did. In support of her motion, Dean stated that Cain had told her the check was in the Regional Inspector General's Office, asserting that information on the whereabouts of the check in April 1989 (which she could have only learned from the called to Cain) would tend to corroborate her story.

Robert O'Neill had returned to the position of Assistant United States Attorney in the Middle District of Florida by the time Dean filed her motion. Thus, the task of responding to the motion was left to Deputy Independent Counsel Swartz, who rather than advise the court of the literal truth rationale underlying Agent Cain's testimony, would seek to lead the court and the probation officer to believe that the testimonies were irreconcilable and that Cain had told the truth while Dean had lied. In addition to the Bruce C. Swartz profile, this matter is addressed in the above-mentioned Truth in Justice items of February 6 and March 10, 2011, as well as a June 4, 2011 Truth in Justice item styled Willful Ignorance at the Department of Justice, and its Consequences." O'Neill, however, would later become involved in covering up the matter when it was raised in a District of Columbia Office of Bar Counsel Investigation. That investigation is the subject of the false statement on O'Neill's United States Attorney application, as most recently discussed in the June 23, 2011 Truth in Justice item styled "United States Attorney Robert E. O'Neill as Crusader Against Corrupt Public Officials."

Tuesday, June 21, 2011

United States Attorney Robert O’Neill as Crusader against Corrupt Public Officials

by James Scanlan, Esq.

Robert E. O’Neill has been the United States Attorney for the Middle District of Florida since October 2010. He is the subject of a number of Truth in Justice items related to his conduct as lead trial counsel in United States v. Dean, an Independent Counsel case O’Neill tried in 1993; a false statement he made concerning a District of Columbia Bar Counsel investigation of his conduct in the case in an application he filed for the United States Attorney position with the Florida Federal Judicial Nominating Commission; and the likelihood that the false statement on the application or like false statement at some other point in the appointment/confirmation process violated 18 U.S.C. § 1001.

In an apparent effort to minimize the Bar Counsel investigation, O’Neill stated that it had been initiated by the convicted defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” certain conduct of O’Neill and his colleagues. While it is merely highly probable that O’Neill violated 18 U.S.C. § 1001, that he made a false statement on the Nominating Commission application is not open to question. See my February 19, 2011 Truth in Justice item styled “Robert E. O’Neill and 18 U.S.C. § 1001.
Last week, O’Neill was the subject of a June 17, 2011 St. Petersburg Times article styled “U.S. Attorney a Veteran at Fighting Corruption.” The article was prompted by O’Neill’s personal appearance in court on June 15 regarding the indictment on bribery and related charges of a former Hillsborough County commissioner named Kevin White. The article, which portrays O’Neill quite favorably, illustrates several things about the curious law enforcement situation in the Middle District of Florida.

O’Neill’s Unavailability for an Interview. In my 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,” I suggested that O’Neill would be wise to avoiding situations where someone might ask him if he had lied on his United States Attorney application. The item was focused on speaking engagements. But the same point applies to interviews by journalists and other researchers.

The recent article stated that O’Neill declined to be interviewed and that a spokesman for O’Neill had stated that O’Neill’s schedule was too full. Given that the St. Petersburg Times has so far not printed a word about the false statement in O’Neill’s Nominating Commission application, there was little reason to expect that the interviewer would have inquired about the matter. But in allowing an interview O’Neill still would have taken a chance. And certainly he would face grave danger in an interview by a less favorably disposed entity than the St. Petersburg Times has so far been.

The Fitzgibbons Remarks. The article quoted Tampa defense lawyer John Fitzgibbons as stating that “’[O’Neill] is I think personally offended when public officials are being bribed or breaking the law.’” The article also states that Fitzgibbons said that since O’Neill was appointed the defense bar has noted an increase in white collar prosecutions. Fitzgibbons, as it happens, is the Chairman of the Florida Federal Judicial Nominating Commission that recommended O’Neill as one of three finalists for the United States Attorney position. Though Fitzgibbons was provided ample information indicating that O’Neill was unfit to serve as United States Attorney, including that he made a false statement in the application submitted to Fitzgibbons’ Commission, Fitzgibbons chose not to raise such matters in O’Neill’s interview before the Commission or otherwise allow them to interfere with O’Neill’s appointment. See Addendum 7 to the Robert E. O’Neill profile. Nor, apparently, has Fitzgibbons allowed such matters to affect his public remarks about O’Neill’s character. In any case, Fitzgibbons, at least by his role in deciding whom to recommend and whom not to recommend for the United States Attorney position, had a large role in causing O’Neill to be the United States Attorney. That should be borne in mind as one appraises Fitzgibbons’ remarks about O’Neill’s conduct in the position.

The 18 U.S.C. § 1001 Claim in the Kevin White Indictment. The Kevin White indictment includes a claim that White violated 18 U.S.C. § 1001. O’Neill’s appearance in court suggests that he may try the Kevin White case himself. Assuming that O’Neill’s false statement and the likelihood that he violated 18 U.S.C. § 1001 become widely known in the Tampa/St. Petersburg area, the court may have problems both in impaneling a jury and seeing that such information does not come to the jury’s attention during the trial. And one has to wonder what precisely O’Neill will tell the jury or court about the seriousness of a violation of that statute. This particular issue, however, is but one manifestation of the prodigious incongruousness of having a United States Attorney known to have lied while seeking the position.

The St. Petersburg Times Discussion of the Dean Case. In my October 3, 2010 Truth in Justice item styled “Whom Can We Trust?,” I raised the issue of, given what we know about the O’Neill confirmation notwithstanding (among other things) the undisputable false statement on his Florida Federal Judicial Nominating Commission application, what faith we can we place in other assurances of the Department of Justice or the Senate Judiciary Committee as to the integrity of an appointee to a law enforcement or judiciary position. By way of introduction I noted the commonplace situation where we observe the press getting the facts wrong about a subject we know something about and then have to wonder about press accounts of things we know little or nothing about.

The recent St. Petersburg Times article, after mentioning that O’Neill had been lead counsel in the Dean trial, stated: “O'Neill drew criticism when he accused [Dean] of lying on the witness stand — ‘You can take her testimony and throw it in the garbage where it belongs,’ he said.” It is true that O’Neill drew severe criticism for his conduct in the prosecution, both from the district court and the court of appeals. But the court’s criticisms went to matters utterly different from the accusations that Dean lied on the stand.

It is the subject of the courts’ criticisms, and the other matters I have raised in the O’Neill profile – all going to O’Neill’s basic integrity rather than to the stridency of his advocacy – that warrant the attention of a newspaper that purports to be providing insight into law enforcement in central Florida. But in the event the paper were ever to address such issues, given the evident failure to get the simplest of facts right, one will have to wonder about its interpretations of more complex issues.

Thursday, June 16, 2011

Deliberations: Jurors get it right 95% of the time?

by Matt McCusker

As a litigation consultant, it has been my pleasure to work with judges across the country to help spread the word about the benefits of well-designed voir dire that truly unearths bias. However, I have also run into friendly debates with judges who are not thrilled with my line of work. These individuals typically feel that the use of professionals to search for bias in potential jurors is more often utilized to manipulate the system, than to protect it.

The evidence that I most often hear in support of this perspective is that (with or without litigation consultants)…

“Juries get it right 95% of the time.”

This has become a very common turn of phrase and is often cited as proof of our legal system’s solid design. However, I would like to ask a few questions that put this gem of wisdom on the hot seat.

1) Who decides the definition of right?

I sincerely believe that every case with a verdict has at least one side which believes the jury did not get it right. By my math, that puts us somewhere around 50%. If we add in all of the verdicts that anger both sides and multi-party lawsuits, I believe our number of discontent rises even further. In fact, I would suggest that a significant majority of parties (and their attorneys) think the jury got it wrong.

2) Where is this 95% statistic coming from?

So, if it is not statistically likely that this 95% number comes from the parties or their attorneys, where does it come from? My best guess is that this phrase originated with the group that most often uses it: our judges. No doubt, as neutral observers of the entire process, no one else would have the required knowledge to offer such an opinion.

3) What does it mean when the most powerful person in the courtroom thinks juries get it right 95% of the time?

Here is where I get a little nervous. The vast majority of my experiences with judges have been great. However, it is disconcerting that so many judges’ opinions about the case are in line with the juries they oversee. It leaves me with three possibilities (or a combination thereof):

a) In 95% of cases, there is a clear winner and loser that most people would agree on. In fact, this decision is so clear, that juries and judges are consistently on the same page about verdict and damages.

b) Judges tend to forget about the cases where they disagreed with the jury, so the 95% number is based on hindsight bias. Who wants to remember the cases one oversees where the wrong parties (in your opinion) are celebrating?

c) Those who believe “juries get it right 95% of the time” are subconsciously helping the jury agreement with their own opinion. Saying this may get me in a little hot water with some of the judiciary. However, I believe it is something that should be talked about.

The American Society of Trial Consultants’ (ASTC has Professional Standards which prevent members from publishing win/loss records. There are several reasons for this, but one of the most powerful is the inability to define “wins” and “losses.” Is a plaintiff verdict for $1 million in a case that was supposed to be worth $10 million a win or a loss, and for whom? I suggest the definition of “right” falls into a similar category.

Saturday, June 04, 2011

Willful Ignorance at the Department of Justice, and Its Consequences

by James Scanlan, Esq.

In a September 4, 2010 Truth in Justice item styled “Doubtful Progress on Professional Responsibility at DOJ,” I questioned the judgment of the Department of Justice reflected in its recent creation of a professional responsibility award, noting that what was essentially an award for being honest could eventually be the subject of derision within the Department. A month later the Department presented the first Claudia J. Flynn Award for Professional Responsibility to retiring Criminal Division Deputy Assistant Attorney General John C. Keeney. In this instance, the award – which was described as recognizing “a Department attorney who has made significant contributions in the area of professional responsibility by successfully handling a sensitive and challenging professional responsibility issue in an exemplary fashion and/or leading efforts to ensure that Department attorneys carry out their duties in accordance with the rules of professional conduct” – appears to have been presented for providing guidance on professional responsibility issues rather than demonstrating professional responsibility. The presentation to Keeney thus doe not implicate the concern I raised about an award for honesty. But the award and its presentation to Keeney raised a number of other issues.

The September 4 item had also criticized the Department of Justice policy of refusing to investigate allegations of misconduct that were or could have been addressed in litigation, which the Department asserted as its reason for failing to consider whether the conduct of Bruce C. Swartz as Deputy Independent Counsel in United States v. Deborah Gore Dean indicated that he was unfit to serve in his current position as Deputy Assistant Attorney General in the Criminal Division. The policy treats prosecutorial abuse as something solely to be revealed by defendants in the courts and ignores the Department’s own obligation to expose such abuse regardless of whether a defendant is able effectively to do so. Reliance on the policy to refuse to examine Swartz’s conduct in the Dean case highlights one of the policy’s serious shortcomings since the issues I raised about Swartz principally involve his deceiving the courts in covering up prosecutorial abuses. The policy thus rewards efforts to deceive courts as long as they are successful. In any case, whatever the supposed interests underlying the policy, it certainly makes no sense to rely on it to refuse to determine whether persons are fit to hold high positions in the Department. See the Truth in Justice items of February 6, 2011 (“Bruce Swartz – Our Man Abroad”) and March 10, 2011 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) regarding Swartz’s responsibilities in representing the Department of Justice before foreign nations.

The Department also relied on the policy as a basis for refusing to investigate whether Robert E. O'Neill, then nominee for United States Attorney for the Middle District of Florida, had lied on his application for the position. In an evident attempt to minimize a District of Columbia Bar Counsel investigation of his conduct in the Dean case O’Neill stated that the investigation was initiated by the convicted defendant; in fact it was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. The Department purported to rely on the policy even though the false statement quite obviously was not something that was or could have been addressed in litigation. The purported reliance on a patently inapplicable policy to avoid examining dishonest or criminal conduct of its high officials is among the clearest evidence that the Department cannot be trusted either to ensure the integrity of its officials or to deal straightforwardly with the public. See the Truth in Justice items of October 3, 2011 (“Whom Can We Trust?”) regarding the confirming of O’Neill as United States Attorney notwithstanding the false statement on his application and February 19, 2011 (“Robert E. O’Neill and 18 U.S.C. § 1001”) regarding the likelihood that the false statement on the application or a like false statement during the nomination/confirmation process violated federal law.

The September 4, 2010 item mentioned at the outset had focused on a particularly egregious prosecutorial abuse by Swartz and O’Neill in the Dean case. As discussed more fully in Section B.1 of the main Prosecutorial Misconduct page on, Swartz and lead trial counsel O’Neill pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would seem to directly contradict defendant Deborah Gore Dean’s testimony about a call she made to Agent Cain in April 1989. O’Neill then relied heavily on Agent Cain’s testimony to provocatively assert in closing argument that Dean lied on the witness stand. Agent Cain had evidently been persuaded that his seeming categorical denial of any recollection of the call from Dean would be literally true because it technically applied to a different date from that given by Dean.

In a post-trial motion alleging pervasive prosecutorial abuse, Dean maintained that Agent Cain committed perjury and that prosecutors knew or should have known that he did. At that point, the only appropriate course for Swartz, who defended against the allegation, would have been to advise the court of the literal truth rationale underlying Agent Cain’s testimony. Had Swartz done so, however, there was good chance that the court (which almost overturned the verdict for other identified abuses) would have dismissed the indictment and recommended that Swartz and O’Neill be sanctioned or prosecuted for suborning perjury.

So Swartz instead sought to cover up what he and O’Neill had done by leading the court to believe that the testimonies were irreconcilable and that Agent Cain had told the truth while Dean had lied. As part of an aggressive strategy in this regard, Independent Counsel attorneys even tried to have Dean’s sentence increased by six months for lying about the call. In deceiving the court in an effort to prevent discovery into the matter Swartz and those assisting him likely engaged in a conspiracy to obstruct of justice. See Addendum 3 of the Bruce C. Swartz profile regarding some of Swartz’s more hypocritical behavior in deceiving the court on the matter.

As it happens, one of the persons aiding Swartz in covering up this matter was Claudia J. Flynn, the name source of the Department of Justice’s professional responsibility award. Flynn had been an AUSA in the United States Attorney’s office in the New Jersey since 1984 and served as the Deputy Chief of the office’s Criminal Division before joining the Office of Independent Counsel in 1992. At a February 22, 1994 hearing where Swartz resisted discovery concerning Agent Cain’s testimony, Flynn appeared for the purpose of arguing sentencing issues, including that involving the probation officer’s recommendation that Dean’s sentence be increased for lying about the call to Agent Cain.

It would turn out that Flynn did not have the opportunity to address the matter. The court refused even to hear argument, indicating that it believed that Dean had probably told the truth. But inasmuch as the effort to show that Dean lied about the call to Agent Cain was an integral part of the scheme to keep the court from finding out the truth about Agent Cain’s testimony, if the scheme constituted a conspiracy to obstruct justice, Flynn was party to it. Whether or not a crime was committed, however, Swartz and Flynn had engaged in prosecutorial abuse of sufficient gravity that they ought not to have thereafter held positions in the Department of Justice.

Later in 1994 Flynn returned to the New Jersey United States Attorney’s office to become Chief of the office’s Criminal Division. Then in February 1997 (possibly with the support of her former supervisor Swartz who had since become a Special Assistant in Main Justice’s Criminal Division) Flynn was appointed Chief of Staff to Criminal Division Acting Assistant Attorney General John C. Keeney.

On learning that Flynn was Keeney’s Chief of Staff, I wrote to Flynn, by letters of June 10, 1997, July 6, 1997, and August 18, 1997, concerning implications of her role in covering up Independent Counsel conduct regarding Agent Cain and seeking information on her tenure with the Office of Independent Counsel and Department of Justice. Receiving no reply from Flynn, by letter of October 6, 1997, I wrote to Keeney, detailing the events concerning Agent Cain and Flynn’s involvement with the matter, and advising Keeney of his obligations, not only to see that Flynn was removed from her current position, but to bring to the attention of appropriate authorities evidence that Flynn was involved in a conspiracy to obstruct justice. By letter to Keeney of December 5, 1997, I also sought information on Flynn’s tenure with the Criminal Division.

Keeney did not respond to either of these letters. And, though I continued to mention Flynn in correspondence to other Department officials concerning Independent Counsel conduct in the Dean case, the Department never mentioned Flynn in its correspondence back to me.

I assume that the Department failed to seriously consider whether Flynn’s involvement in the Agent Cain matter indicated either that she ought not to hold a high position in the Department of Justice or warranted her prosecution. Possibly such failure rested in the policy of refusing to consider matters that were or could have been addressed in litigation. And possibly Keeney and others in the Department simply ignored the allegations.

In any case, my raising these issues appeared to have no effect on Flynn’s career at the Department and in no manner to influence consideration of her suitability for particular assignments. For in 2000 then Deputy Attorney General Eric H. Holder, Jr. appointed Flynn as the first permanent director of the Professional Responsibility Advisory Office. Flynn held that position until retiring shortly before passing away in 2006.

After being forced to have the conviction of the late Senator Ted Stevens overturned because of prosecutorial abuses in the Criminal Division’s Public Integrity Section, and recognizing that the Department must give greater attention to ensuring the integrity of its prosecutions, in October 2009, the Department created the Claudia J. Flynn Award for Professional Responsibility ostensibly as part of the effort to further that goal. I raised with the Department the appropriateness of the Flynn award in the same November 2, 2009 letter to Attorney General Holder by which I most recently sought the removal of Swartz (by reference to a then password protected page that addressed the matter in detail). The Department’s response of December 28, 2009, made no reference to the matter. But, according to the Department’s lights, the rationale proffered for refusing to investigate the issues I raised regarding Swartz would apply as well to the issues I raised about the Flynn award. The shortcomings of such policy that are so evident in the refusal to consider the issues as they bear on Swartz’s suitability to serve in his current position are equally evident in the refusal to consider the issues as they bear on the appropriateness of naming a professional responsibility award after Flynn. For, though her role was limited, Flynn was not merely involved in serious prosecutorial misconduct, but was involved in such conduct in a case that epitomizes a prosecutorial philosophy in which the truth is irrelevant. See generally the Prosecutorial Misconduct and Misconduct Profiles pages of

Failing to consider these issues, however, the Department went on to present the award in October 2010. And it chose to name as the first recipient Deputy Assistant Attorney General Keeney, one of the principal Department officials who could have prevented the situation where the Department has a professional responsibility award named after an attorney who is known to have been a party to prosecutorial abuse, as well as the situation where individuals known to have been deeply enmeshed in pervasive abuses now hold one of the most important positions in the Criminal Division and one of the most important United States Attorney posts. See my letters to Keeney of November 30, 1995, and March 11, 1996, regarding Swartz and O’Neill.

The Stevens affair highlighted serious prosecutorial ethics problems in the Department. There is reason to believe that such problems are longstanding. Notably, most of the offending attorneys in the Dean case were experienced federal prosecutors, as Bruce C. Swartz would himself point out in maintaining that Independent Counsel attorneys had done nothing improper whatever. Long-time federal prosecutor Jo Ann Harris, lead trial counsel at the time an indictment was drafted containing various statements or inferences contradicted by materials in Independent Counsel files and the decision was made to ignore the district court’s instructions regarding the production of exculpatory material, had gone on to be the Assistant Attorney General for the Criminal Division by the time Swartz and Flynn appeared at the February 22, 1994 hearing. Later that year Harris would be appointed to Attorney General Janet Reno’s Advisory Board on Professional Responsibility, part of a Reno initiative to address prosecutorial abuse that, so far as one can tell, accomplished nothing of note. See the Jo Ann Harris profile and the March 2, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris.”

Further, it was Associate Deputy Attorney General David Margolis who, during the week of December 12, 1994, first suggested to me that Agent Cain’s testimony may have been elicited on the basis that even though Dean’s testimony that Agent Cain seemed to contradict was true, Agent Cain’s testimony was also literally true. That Agent Cain’s testimony was elicited on such basis necessarily meant both that Independent Counsel attorneys had calculatedly undertaken to deceive the jury in order to lead the jury falsely to believe that the defendant committed perjury and that Swartz and those assisting him had deceived the court in covering up the truth about the nature of Cain’s testimony. But Margolis raised the point apparently as a basis for believing that Independent Counsel conduct was not as egregious as I maintained. Margolis has for quite some time been regarded as the conscience of the Department of Justice and, along with Keeney, has greatly influenced the Department’s policies on a variety of prosecutorial ethics issues. But it is a flawed ethos that fails to consider it a grave abuse for government attorneys, by whatever means, to lead courts and juries to believe things those attorneys know to be false.

An award for professional responsibility, whether for demonstrating it or for providing guidance on it, is probably not a good idea in any event. So it is hard to say that presenting it to someone other than Keeney would have done more toward addressing the Department’s prosecutorial ethics problems. But presenting the award to Keeney does seem more of a tribute to a regime that created the problems than a step toward solving them. The same may be said of presenting the award to Margolis, which, left to its own thinking, the Department is certain to do within the
next few years.

I am not sure what to say of the Department’s one day presenting the award to Swartz. But given the Department’s policy of willful ignorance as to matters that supposedly were or could have been raised in litigation, that would hardly come as a surprise.

Uncertainty demands clemency for death-row inmate

The following commentary by Marilyn Johanek was published in the Toledo Blade on June 2, 2011.

Shawn Hawkins has friends in high places. Not only does the Ohio death row inmate have all the usual opponents of capital punishment working to spare his life, set to
end in 13 days, but even conservative, pro-death penalty Republicans are on board.

Last weekend, an unusual appeal on Hawkins' behalf appeared in some Toledo Diocese parish bulletins. It encouraged the faithful to contact Gov. John Kasich and press for leniency.

In February, the Catholic Bishops of Ohio, including Bishop Leonard Blair of Toledo, called on lawmakers to abolish executions. Now the Catholic Church appears determined to bring its influence to bear on a particular clemency cause.

So who is Shawn Hawkins, and why should we care whether he dies by lethal injection on June 14th? Court records show he was a small-time criminal and convicted drug dealer before a jury found him guilty of killing two Cincinnati men in 1989 in an apparent drug deal gone bad.

He admits he helped arrange the deal, but he has steadfastly denied that he committed the double-murder. If it weren't for the powerful backing his case has received from prominent death-penalty proponents, I'd plead indifference.

I have little interest in or sympathy for the doomed on death row who proclaim their innocence or find religion as their date with the grim reaper nears. The brutal murder of my cousin years ago hardened me to prison compassion.

Yet when state Sen. Bill Seitz (R., Cincinnati) and former Ohio Secretary of State Ken Blackwell, both well-known conservatives who support the death penalty, said they believed Hawkins should receive mercy, I was intrigued. Former Ohio Attorney General Jim Petro, now Mr. Kasich's chancellor of higher education, agreed with his Republican colleagues and joined them to write to the governor and Ohio Parole Board asking that Hawkins be spared.

Then, in a most uncommon development, the parole board voted unanimously to recommend clemency. That's happened only a handful of times since Ohio resumed executions in 1999, putting 44 convicted killers to death since then.

Only six condemned inmates have had their execution sentences commuted to life in prison without parole. Three argued successfully that addiction or disease warranted mercy, and three, like Hawkins, contended their innocence did.

The parole board said it wasn't convinced that Hawkins, who at 42 has spent half his life in prison, was innocent. But the clemency report said uncertainty about the appropriateness of the death sentence in his case sealed the recommendation.

Defense attorneys maintain that doubt surrounds every element of the Hawkins saga, and the parole board was persuaded. The litany of problems in the case includes flawed evidence -- a partial fingerprint of Hawkins found at the scene of the murders allegedly was handled improperly -- changing stories from the sole eyewitness to the crime, and the possible involvement of other people who were never fully investigated by police.

The parole board also was bothered by what it considered Hawkins' ineffective original counsel and a prosecution that never established the defendant possessed the murder weapon. More troubling were claims by the inmate's lawyers that new forensic analysis disputed the prosecution's contention that one of the victims was killed in a car by Hawkins. Three witnesses came forward to provide alibis for him for the time of the murders.

Hawkins is no Boy Scout. But was he the perpetrator of cold-blooded, execution-style slayings, or merely an accomplice to the crime? If the latter, does his crime merit execution?

His lawyers insist the case is less about guilt or innocence than about whether the state is prepared to kill people when the evidence against them is unclear. In an April 18 letter to Governor Kasich, Mr. Blackwell wrote that Hawkins does not deserve to die.

"The quality of evidence against him and the manner in which the trial was conducted are not such that he should suffer such a fate," Mr. Blackwell wrote.

"Beyond a reasonable doubt" is the standard of proof we insist on in criminal trials, because a defendant's liberty or life may hang in the balance. It doesn't mean absolute certainty but, as one legal definition puts it, "proof of such a convincing character that you would be willing to rely and act upon it without hesitation."

In Hawkins' case, reasonable doubt caused the parole board to conclude that execution could be an irreversible wrong. Mr. Kasich cannot take that risk.

Marilou Johanek is a Blade commentary writer.

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