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.