Legal Fictions and Farces

by James Scanlan, Esq.

It was with regard to the legal fiction that a wife acts under her husband’s direction that Mr. Bumble famously retorted that if such was the law’s view, “the law is a ass – a idiot.”

A comparable obtuseness exists in the law’s belief that a judge’s instruction to disregard statements improperly put before a jury can neutralize the effect of such statements when the jury would otherwise consider them of consequence. As conscientious jurors struggle to reach a just verdict, especially with conflicting testimony, many will believe that the moral course is to disregard the court’s instruction rather than disregard statements that might assist them in a difficult search for the truth. And even jurors who are committed to following the judge’s instruction commonly remain influenced by statements they think they are disregarding.

Thus, in the Roger Clemens case that is the subject of Truth in Justice items of July 27 and August 4, 2011, D.C. District Court Judge Reggie B. Walton wisely rejected the prosecution’s suggestion that a simple instruction to disregard a video presentation of inadmissible evidence could effectively counter its impact on the jury.

In the case of United States v. Dean that is the subject of more than a dozen Truth in Justice items over the last year focusing on the misconduct of Independent Counsel attorneys including Robert E. O'Neill (currently United States Attorney for the Middle District of Florida) or Bruce C. Swartz (currently Deputy Assistant Attorney General for the Department of Justice’s Criminal Division), there occurred far less insightful appraisals of the effect of a curative instruction. As with other matters in the case, several instances of deception on the part of the prosecutors were also involved.

A. Trial and Post-Trial Proceedings

Robert E. O'Neill is the United States Attorney who was recently appointed to the position notwithstanding indisputable evidence that he lied on his Florida Federal Judicial Nominating Commission application regarding the initiation of a District of Columbia Office of Bar Counsel investigation of his conduct in the Dean case and notwithstanding that the false statement on his application or like false statement elsewhere during the process of securing the position almost certainly violated 18 U.S.C. § 1001. As discussed 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,” O’Neill has a penchant for calling people liars in his prosecutions, often provocatively, as in his “a liar is a liar” remarks in United States v. Spellissy. O’Neill may well use the tactic when he personally tries the pending case against former Hillsborough County Commissioner Kevin L. White, a cases involving the same false statements statute under which O’Neill could himself be prosecuted until 2014 or 2015. See the July 18, 2011 Truth in Justice item styled “United States Attorney Robert E. O’Neill and the Impending Prosecution of Kevin L. White.”

When O’Neill prosecuted the Dean case as an Associate Independent Counsel in 1993, a substantial part of his closing argument was devoted to repeatedly asserting that the defendant, Deborah Gore Dean, had lied on the witness stand. O’Neill used some form of the word “lie” over 50 times in the context of statements either that Dean herself lied or that Dean had falsely accused others of lying. The pervasiveness of such statements, which are listed here, is probably unrivaled in reported cases. Among them were such provocative statements as that Dean’s testimony “is rotten to the core,” “is lies piled upon lies,” and “is filtered with lies,” and that “[y]ou can throw it out the window into a garbage pail for what it's worth, for having lied to you.” While the case included a number of false statement and perjury counts, almost none of O’Neill’s “lie” statements, and none of the more provocative ones, related to those charges, which O’Neill hardly discussed at all. Rather, the statements were aimed generally at attacking Dean’s credibility.

The attack on Dean’s credibility was quite important to the prosecution’s case. As discussed in the June 29, 2011 Truth in Justice item styled “Robert E. O’Neill’s Tricks of the Trade – One
(The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)” (Trick I), O’Neill even pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading or false testimony in order that O’Neill could falsely lead the jury to believe that Dean lied about calling Cain in April 1989 to complain about the treatment of former Attorney General John N. Mitchell in a HUD Inspector General’s Report authored by Cain. (While appearing to categorically contradict Dean, the testimony had been crafted, though imperfectly, to literally mean only that Dean had not called Cain on the date the report was released internally at HUD, ten days before Dean received a copy of it.) O’Neill’s claims that Cain’s testimony showed that Dean lied on the stand were not necessarily couched in his most provocative language (e.g., “We had to bring [Agent Cain] in just to show that she lied about that” and “Al Cain told you, the Special Agent from HUD, that conversation never ever happened.”), but they were forcefully presented. And, given that Cain’s testimony appeared to directly contradict Dean regarding a key matter and given that Cain was a black government agent and Dean was being tried before an entirely black jury, O’Neill’s usage of Cain’s testimony comprised the most compelling part of O’Neill attack on Dean’s credibility and probably the most compelling part of the entire argument.

Later parts of the Tricks of the Trade series will show other deceptive actions O’Neill took in order to enable him to lead the jury falsely to believe either that Dean lied or that Dean falsely accused others of lying, some of which matters are already treated in the Robert E. O’ Neill profile and related materials. See, for example, the Russell Cartwright Receipt document concerning the way O’Neill confronted Dean with a receipt of a lobbyist that O’Neill knew to be false, and then pressed her to state that the receipt must be false, in order that O’Neill could later lead the jury to believe that Dean falsely accused the lobbyist and others of creating false receipts.

After the case was presented to the jury, D. C. District Court Judge Thomas F. Hogan became concerned about some case law taking issue with a prosecutor’s stating that a defendant lied. The case law in the area may generally be described as reflecting two concerns. First, a prosecutor’s assertions that a defendant lied may be inflammatory. Second, the assertions may be perceived as reflecting the personal opinion of the prosecutor, which it is believed would carry substantial weight with a jury. For example, a prosecutor’s explicit statement that in his or her personal opinion the defendant lied would typically be a compelling basis at least for a new trial.

With regard to the first matter, it warrants note that calling a person a “liar” is rather more inflammatory than stating that the person lied. And, while O’Neill’s argument was certainly inflammatory, he never actually used the word “liar.” With regard to the second matter, while O’Neill’s remarks may well have come across as his personal opinion (as they apparently did to Judge Hogan), he was careful to avoid any explicit statement that the remarks reflected his personal opinion.

In any event, after consulting with counsel about a D.C. Circuit case holding, according to Hogan, that statements that a person lied were improper “personal comment by counsel,” Hogan decided he should provide the jury what he regarded as curative instruction. Tr. 3589-91. He did so in these terms (Tr. 3593-95):

“Okay. All right, Ladies and Gentlemen, first as to the arguments you heard yesterday and the day before, I take it, but particularly as to yesterday and the day before, the closing argument and more particularly as to the prosecutors' closing arguments, there were comments made as to using the word ‘liar’ or ‘lying’ and the like, and it is obviously, the issue is for you as the jury to make a decision keeping in mind the evidence in the case, and it is not the opinion of counsel, that is, whatever their personal belief is, that is appropriate, so that an argument to you that someone is lying is really an expression of personal opinion by the attorney, as opposed to pointing you to the evidence and saying it's for you to make up your mind whether or not someone is telling the truth. I want you to keep that in mind.

“It's the evidence you have to focus on and not the statements of counsel, which I informed you previously are not evidence in the case.

“The Court will be sending back to you shortly the exhibits in the case, and as I said previously, then you review the exhibits along with your recollection jointly of what the evidence is in the case, the testimony of the witnesses, and in following my instructions, you deliberate on that basis. And you're not to be influenced by any personal expressions of whether someone is worthy of belief or not by counsel in the case.”

Thus, while O’Neill had avoided the provocative term “liar,” Hogan himself used the term in purporting to remind the jury what O’Neill had said. More important, in the first paragraph of the instruction, Hogan three times suggested or stated to the jury the statements that the defendant had lied were in fact “the opinion of [the prosecutor],” the “personal belief” of the prosecutor, or the “personal opinion” of the prosecutor, adding in the third paragraph a reference to the prosecutor’s “personal expressions of whether someone is worthy of belief.” Thus, in his effort to cure the problem that the jury might perceive that the statements reflected O’Neill’s personal opinion, Hogan repeatedly stated explicitly that the statements were O’Neill’s personal opinion.

There is an irony here beyond that in Hogan’s doing what O’Neill had been careful not to do. As reflected in Tricks I and the O’Neill profile, much of the time, and possibly the overwhelming majority or all of the time, when O’Neill stated that Dean had lied, his personal opinion was that Dean had not lied. In the case of the two assertions that the Dean lied about her conversation with Agent Cain, for example, not only was it O’Neill’s personal opinion that Dean had not lied, O’Neill knew with absolute certainty that Dean had not lied.

When Dean filed a motion for a new trial based on pervasive prosecutorial abuses, at a February 14, 1994 hearing, Judge Hogan recognized that the abuses were indeed widespread, including that Independent Counsel attorneys had reason to know that at least two government witnesses had lied. And Hogan repeatedly noted his concerns about the “cumulative effect” of identified abuses, observing (at 29) that it was “almost impossible to quantify the[ir] total impact” on the defendant’s ability to defend herself. Typically, when one party has created a situation where it is impossible to sort things out (in this instance, the prosecution), a court is expected to rule against that party, which for a time it appeared Hogan was going to do. Nevertheless, with little more than a page of explanation, Hogan refused to grant a new trial. Tr. 32-33.

But Hogan separately, and summarily, treated the closing argument issue as follows (Tr. 33):

“[The Government] also is accused of improper closing argument, I think the Court took care of that appropriate[ly] with its own sua sponte instructions it gave after consulting with counsel about it that this was, it had to be recognized, a perjury case, and it's very hard to argue a case of perjury unless you are allowed to refer to the defendant's testimony and have the jury consider what it's worth and taking all that into account.”

Given that the statements as issue had almost nothing to do with the perjury charges, as Hogan had to know, the reference to perjury is at least disingenuous. But even if the point were pertinent, the casual deference to the curative instruction reflects an obliviousness to a reality in which the instruction to disregard the prosecutor’s personal opinion was unlikely to have any appreciable effect on the jury while Hogan’s several statements that the prosecutors’ remarks in fact reflected the prosecutor’s personal opinion were likely to have substantial effect on the jury. Moreover, while he may not have been aware of the fact when he gave the instruction, by the time he relied on it, Hogan had ample reason to know that many of O’Neill’s statements that Dean had lied could not have reflected O’Neill’s personal opinion.

Hogan had additional reason to know that eight days later when, at a February 22, 1994 hearing, he was faced with defense request for a discrete inquiry that was likely to show whether Agent Cain committed perjury with complicity of Independent Counsel attorneys when he denied that Dean had called him in April 1989. If that or anything close to it had occurred, it would mean that four days after Hogan for the third time had chastised O’Neill for what Hogan regarded as playing to the racial differences between the defendant and the jury (Tr. 3899-901), O’Neill had done the same thing in the extreme by calling a black agent to lead a black jury falsely to believe that the white defendant had lied. It would also mean that for two months leading up to the hearing, Independent Counsel attorneys, including the respected former court of appeals judge and now Independent Counsel Arlin M. Adams, had been deceiving Hogan in order to cover up their actions concerning agent Cain (indeed that Deputy Independent Counsel Bruce C. Swartz was at that very hearing deceiving Hogan to his face, and doing so in a manner that most judges would regard as insulting to their intelligence, as discussed in Addendum 3 to the Bruce C. Swartz profile).

But even though Hogan on the same day made clear that he believed that Dean had called Agent Cain as she said, he denied the request for discovery. And even though Hogan’s statements at the hearing of February 14, 1994, already had impliedly found that the government had been putting on evidence that it knew, or had compelling reason to believe, was false, on this occasion, observing with regard to the Cain matter (at 21) that that the evidence “doesn't mean of necessity the government is putting on information they knew was false before the jury,” Hogan declined to find out whether in point of fact the government was putting on information its representatives knew was false.

There are occasions when the law, as administered by some, prefers not to know the truth.

See the February 22, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams” and a May 31, 2009 document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” regarding possible motivations for Hogan’s decision.

B. The Appellate Process

While the fact that Hogan himself told the jury that the statements that Dean lied reflected the prosecutor’s personal opinion escaped attention in the district court, the Independent Counsel recognized that they might present a problem on appeal. Such recognition is best reflected by the Independent Counsel’s brief in the court of appeals, which was signed by Bruce C. Swartz, the subject of many Truth in Justice items concerning, inter alia, his repeated efforts to deceive the courts in responding to allegations of prosecutorial abuse (as discussed in Addendum 7 to the Bruce C. Swartz profile). In addition to quoting Hogan’s disingenuous observation that the case was a perjury case (at 54), the brief twice emphasized the distinction between "personal opinion" and argument, observing after citing two D.C. Circuit cases (at 53): "This Circuit has long recognized the distinction between a prosecutor's expression of his personal opinion as to a witness's veracity and his argument based on the evidence that a witness's testimony is a lie." It then noted (at 53-54): “At no point did the prosecutor violate the injunction against expressing his personal opinion regarding Dean's credibility."

Whether or not the brief correctly characterized the way O'Neill's comments would be perceived by the jury, it accurately identified the absolute prohibition of a prosecutor's expression of personal opinion because of the weight such opinion would be expected to carry with a jury. Yet, when the brief then went on to argue that, in any event, the district court's curative instructions had satisfactorily addressed the matter, the brief would describe those instructions as follows at (58):

“[T]he court specifically instructed the jury that while the words ‘lie’ and ‘lying’ had been used in the closing arguments, the ‘issue is for you as the jury to make a decision depending on the evidence in the case,’ since ‘[i]t's the evidence you have to focus on and not the statements of counsel, which I informed you previously are not evidence in the case.’ Tr. 3593-94.”

Comparison of the above-quoted language with the actual instruction reveals that the brief has drawn material from the first two paragraphs of the instruction, but has eliminated from the quotation of the first paragraph the three instances in which Hogan advised the jury that the statements were in fact the personal opinion of the prosecutor. Specifically, the brief excludes the following material:

“... and it is not the opinion of counsel, that is, whatever their personal belief is, that is appropriate, so that an argument to you that someone is lying is really an expression of personal opinion by the attorney, as opposed to pointing you to the evidence and saying it's for you to make up your mind whether or not someone is telling the truth. I want you to keep that in mind.”

Moreover, the brief presented the matter in a way to avoid any indication that material was elided. The brief instead gave the impression that it was simply paraphrasing the court’s statements.

In its May 26, 1995 decision, after citing a number of the more provocative “lie” statements by O’Neill (¶¶130-36), none of which involved the perjury charges, the court of appeals stated (¶137):

“’Lies’ and ‘lying’ are hard words. But this was closing argument, not a polite social conversation. Dean was charged with perjury. The prosecutor had every right to argue that she had not told the truth.”

Then, while indicating that it was not greatly troubled that the prosecutor would use hard words in the circumstances, the court pointed out that that the important thing was that the prosecutor “refrains from giving his personal opinion.” It concluded by stating (id.):

“In this case, to the extent the prosecutor's remarks spilled over into expressions of personal belief, or may have been so perceived by the jurors – for example, ‘she's the only one we know who definitively did lie’ – the district court cured the problem. The court instructed the jury not to consider the opinion of counsel about who lied because it was up to the jury alone to decide who was telling the truth.”

The statement, while seeming not to recognize the extent to which the district court’s instruction explicitly confirmed any impression that the remarks were the prosecutor’s opinion, seems to recognize at least that the court’s curative instruction did make a reference to personal opinion. Yet, given the recognized impact of the perception that the remarks are a prosecutor’s personal opinion has on a jury, it would seem virtually impossible to correct the problem by telling a jury that, while the statements are the prosecutor’s personal opinion, the jury should simply disregard them. Thus, as with Hogan, the court of appeals’ handling of the matter seems rather casual and thoughtless.

When Dean sought review in the Supreme Court, the Independent Counsel opposition (there authored by Deputy Independent Counsel Dianne J. Smith and retained counsel Charles Rothfeld and Michael E. Lackey, Jr.) again, by omission, reflected the drafters’ concern about the problematic nature of the district court’s instruction. But in this instance, while implying that it was quoting the district court’s “curative instructions” on which the court of appeals had relied, the opposition (at 11-12) ignored those instructions entirely. The opposition instead quoted from the court’s earlier general instructions on credibility. These were given on a different day and about 60 transcript pages away from the problematic instruction on which the court of appeals had actually relied.

Whether the Independent Counsel’s approach in the court of appeals or Supreme Court would be deemed an honest one – and I doubt that either court would so regard it ¬– the manner in which the Independent Counsel diverted the courts from Hogan’s statements that the remarks were the prosecutor’s personal opinion does highlight the problems with an instruction that tells a jury that the prosecutor’s statements that a defendant had lied were in fact the prosecutor’s personal opinion.

The considerations that would typically require a new trial where the prosecutor explicitly states that he is expressing his personal opinion ¬regardless of any curative instruction apply with like force, perhaps with greater force, when the court, albeit mistakenly, tells the jury that the prosecutor was expressing his personal opinion.

See the May 31, 2008 document styled “The Putatively Curative Instructions that Informed the Jury that the Prosecutor’s Provocative Statements that the Defendant Had Lied Reflected the Prosecutor’s Personal Opinion” regarding some additional aspects of this matter.