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.

Illinois Repeals Death Penalty

*Breaking News*

Here is a message we are happy to share from Murder Victims Families for Reconciliation.

Reconciliation means accepting that you cannot undo the murder but you can decide how you want to live afterwards.
March 9, 2011

Dear Friends,

Illinois Governor Pat Quinn *just* signed the bill to repeal the death penalty and reallocate funds from its Capital Litigation Trust Fund to provide law enforcement training and services to families of homicide victims. This makes Illinois the 4th state in the country to repeal the death penalty since 2005, following New York, New Jersey, and New Mexico.

“Illinois joins a growing list states and other Americans who recognize that the death penalty simply does not work,” said Beth Wood, Executive Director of MVFR. “Illinois has been under a moratorium for ten years, has had two study commissions, and passed dozens of reforms to try and make the death penalty work. But the system continued to make mistakes while costing millions of dollars and dragging victims’ families through an endless ordeal.”

ACT NOW!

Take a moment to thank the Governor.

Please call Governor Quinn and thank him for his thoughtful attention and courageous decision in favor of repeal! He made history in Illinois today, and we need to let him know we're proud!

Springfield Office: 217-782-0244

Chicago Office: 312-814-2121

Scour your newspapers, blogs, and other websites for any mention of the Illinois repeal over the next few days. When you see some, send a letter to the editor or comment on the blog or web post in support of the repeal. Post the stories to Facebook or Twitter with a big hooray. Make sure to identify yourself as a member or supporter of MVFR in any comments, so that your legislators start to get the hint – you want repeal too [If you're in Illinois -- be sure to thank your legislators for this common sense move to improve the system]!

For every state that repeals the death penalty, we get one step closer here too. Momentum is contagious. This is a moment of celebration for us all!

Warmly,

Beth Wood, Executive Director

The Remarkable Careers of Sometimes Prosecutor David M. Barrett

by James Scanlan, Esq.

Those who examine the materials underlying my Truth in Justice editorials of June 26, July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, February 19, February 22, and March 3, 2011, including the Prosecutorial Misconduct page and the profiles on Robert E. O’Neill, Bruce C. Swartz, Arlin M. Adams, Jo Ann Harris, Paula A. Sweeney, and Robert J. Meyer, will find some remarkable things about the way attorneys under Independent Counsel Arlin M. Adams operated in U.S. v. Dean. Some related events are remarkable as well.

The 1990 appointment of Adams to investigate abuses of HUD housing programs arose out of congressional hearings that began in May 1989. They in turn arose out of an investigation by the HUD Inspector General (IG) of apparent improper influence in the allocation of funds in HUD’s moderate rehabilitation (mod rehab) program. The HUD IG investigation, headed by Supervisory Special Agent Alvin R. Cain, Jr. (who is mentioned or alluded to in many of the referenced Truth in Justice editorials and Addendum 1 hereto) had focused on Thomas T. Demery, Assistant Secretary for Housing from October 1986 until January 1989, and Demery’s seeming favoritism toward persons in the housing industry supporting a charity Demery helped found. After failing to have Demery removed from the mod rehab funding process in 1988, the HUD IG issued an extensive report in April 1989, naming Demery in its title.

The principal congressional hearings, which ran until May 1990, were chaired by the late Congressman Tom Lantos. They are discussed on the Lantos Hearings page of jpscanlan.com, especially in an approximately 25,000-word document that I shall refer to here simply as the Inquiry Document. It discusses the way that Demery, aided by the public relations firm of Hill & Knowlton and his own ardent denials of any impropriety, including denials that he even knew the identity of developers and consultants benefiting from his funding decisions, was generally quite successful in steering the congressional investigation and most of the press interest away from himself. Demery might have been entirely successful but for HUD’s October 1989 release of documents from Demery’s word-processing diskettes, which, among other things, included a November 1, 1987 list of pending mod rehab requests matched with the developers or consultants promoting the requests. That item alone seemed to establish that several of Demery’s sworn statements were false. Limiting the count to matters that are pretty clear, materials eventually available, including confessions by Demery, would seem to indicate that Demery lied to the Lantos subcommittee or the House Banking Committee about 30 times. See Appendix D to my August 30, 1997 letter to Independent Counsel Larry D. Thompson.

There are many remarkable things recorded in the Inquiry Document, especially concerning a congressional committee’s ability and desire to find the truth about something it purports to be investigating. The influence of Hill & Knowlton on the proceedings, discussed in Sections A.3 and B.3 of Part II, should be appraised in conjunction with information first disclosed by John R. McArthur concerning the role, in October 1990, of Hill & Knowlton (then retained by the Kuwaiti government) in presenting before Lantos’s unofficial Congressional Human Rights Caucus apparently false testimony aimed at causing the United States to go to war with Iraq (as discussed, with links provided, in item 1 on the Lantos Hearings page).

But the Inquiry Document was written sometime in 1991, well before an event that may be as remarkable as anything in the hearings themselves. Demery’s November 1, 1987 list had matched a Moore, Oklahoma mod rehab request with David M. Barrett. Barrett was a Washington lawyer and prominent Republican fundraiser who was also a housing developer involved in HUD-related programs. He also had a close relationship with Demery, as reflected, for example, in Demery’s July 29, 1987 letter observing, among other things: “ As always, I expect much fruit to come from the meetings you arrange.” Barrett had caught the attention of the HUD IG investigators early in their investigation, and, in a November 4, 1988 memorandum where the IG sought to have Demery removed from the mod rehab funding process, the IG (at 2) specifically cited Demery’s modifying of a Midland, Texas allocation to make it match the number of units in a Barrett project.

Through most of the Lantos hearings, however, Barrett managed to escape notice. And when a December 11, 1989 New York Times article raised issues about Barrett’s benefitting from his friendship with Demery, Demery responded, much in the categorical manner shown before the Lantos subcommittee: “I had [sic] never had any discussion with Mr. Barrett about Mod Rehab – period.”

But at a hearing on May 23, 1990, Lantos was possessed, perhaps reluctantly, of a Barrett Chronology that recorded Demery’s connections with Barrett reflected in Demery’s phone logs and word-processing diskettes, including the November 1, 1987 list matching Barrett’s name with the Moore, Oklahoma mod rehab request. So Lantos asked at least a few questions about Demery’s contacts with Barrett. In the hearing Demery acknowledged he had discussed the request with Barrett. But Demery also stated, though falsely, that the request matched with Barrett was not funded. Barrett then received some limited attention in the subcommittee’s final report, though rather less attention than seemed warranted based solely on information in the Barrett Chronology, the IG’s November 4, 1988 memorandum, and the May 23, 1990 hearing. See Sections II.B.1.c and III.B of the Inquiry Document

Publicly available information such as that recorded in the materials just mentioned would have provided Independent Counsel Arlin M. Adams a basis for a conspiracy charge involving Demery and Barrett that would have been considerably stronger than many conspiracy charges Adams did pursue. Such charge could well have involved a friend of Barrett named John Mamoulides, a district attorney in Jefferson Parrish, Louisiana who was also involved in housing matters, and who, along with Barrett, would arrange various things for Demery in the New Orleans area. For example, on November 23, 1987, the same day that Demery was causing the funding of the Moore, Oklahoma mod rehab request (while apparently leading HUD Secretary Samuel R. Pierce, Jr. to believe that it was funded because of interest of an Oklahoma Senator) Demery’s phone logs indicated that Barrett was advising Demery that Barrett and Mamoulides would take care of Demery’s accommodations in an upcoming trip to New Orleans. Any charge would likely be much stronger once the publicly available information was augmented with the types of information readily available to an Independent Counsel. The last overt act of such a conspiracy, so far as I know and assuming that neither Demery nor Barrett ever told Independent Counsel investigators anything false or misleading about their interactions and Demery’s funding decisions, would have occurred at the May 23, 1990 hearing when Demery falsely denied that the request he had matched with Barrett on the November 1, 1987 list was funded.

But Adams had plenty of other things to charge Demery with, which Adams in fact did, first in a 9-count indictment in June 1992, then in a 19-count superseding indictment in December 1992 (including causing, on November 23, 1987, the funding of another mod rehab request on the November 1, 1987 list for someone who had provided him free accommodations). The referenced Inquiry Document suggests that Barrett was among a large number of persons whose connections with Demery might have formed a basis for prosecution. Indeed, but for a preoccupation with finding that it had been unfair for the HUD IG to single out Demery in the title of the mod rehab report, the Lantos subcommittee might well have found that few decisions Demery made in the many programs he administered were made for reasons other than to benefit a friend or compensate someone for past or future favors.

In any event, the failure of Adams’ attorneys to take an interest in Demery’s connections with Barrett caused the Barrett story to remain dormant until May 24, 1995. On that day – which, coincidentally, may have been the day after the limitations period expired on a conspiracy involving Demery and Barrett – the D.C. Circuit’s Division for the Purpose of Appointing Independent Counsels (usually referred to as the “Special Division”) appointed Barrett to the position of Independent Counsel to investigate whether HUD Secretary Henry Cisneros lied about payments to a mistress during his background investigation. The next day, a Washington Post account of the appointment was largely devoted to recording opinions on what an excellent Independent Counsel Barrett would make, with only passing reference to Barrett’s mention in the matters investigated by Lantos. On the same day, the New York Times gave Barrett’s involvement in those matters much greater attention, quoting Lantos’s observation that the appointment was “mindboggling.”

Independent Counsel Arlin M. Adams, who had met with the Special Division on May 15, 1995 to discuss his own resignation, apparently raised no objection to the Barrett appointment either before or after it took place. Four year later, Adams would tell the Washington Post that he could not recall being asked about it. See Addendum 1 hereto.

The Barrett tenure as Independent Counsel would be a matter of some controversy, at least for its protraction. In January 1997, when Barrett had expended but $902,000, a Legal Times article would bear the title “What’s Taking David Barrett So Long?” In January 2006, when Barrett was forced, against his will, to shut down the investigation, it had expended $22,750,000 – some of that, according to an Acknowledgment included in Barrett’s report (at sixth page), paid to John Mamoulides (who retired from his district attorney position in 1996). While for a time some observers supported Barrett’s claims that a cover-up had thwarted his investigation, the prevailing view was probably closer to that of former Justice Department official Robert S. Litt (now General Counsel of the Office of the Director of National Intelligence), who in a May 21, 2005 letter described the investigation as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” For reasons expressed in many editorials here, I do not automatically regard a Justice Department official’s appraisal of prosecutor conduct as insightful, or even as bearing a relationship to reality. I do, however, believe that the 1997 Legal Times piece was aptly titled.

Yet, if Barrett’s tenure as an Independent Counsel was remarkable, it is not clear that it was more remarkable than the appointment itself. The Inquiry Document presents an unflattering picture of Tom Lantos’s conduct of the HUD hearings. But it is hard to disagree with him as to the remarkable nature of the Barrett appointment. In that regard, it may rival the recent appointment of Robert E. O’Neill as United States Attorney, notwithstanding, among other things, that he lied on his application for the position.

Barrett is again on the Washington scene as part of a lobbying firm called Barrett Capitol Strategies. The firm touts its extensive Capitol Hill and agency contacts – the assets that made Barrett a major beneficiary of HUD programs and that may as well have caused him to receive only limited attention in the Lantos hearings and none from Independent Counsel Arlin M. Adams, and, for that matter, that may have led to his appointment as Independent Counsel. Barrett’s Barrett Capitol Strategies biography only briefly mentions his role as Independent Counsel, adding:

Upon completion of his investigation Barrett was awarded the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award. The inscription reads, “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation,” signed Louis Freeh, Director.

In light of the encomium from FBI Director Freeh, one might wonder whether Barrett’s investigation was as improvidently protracted as many believe. I do not doubt that Barrett received the award, just as I did not doubt it when the award appeared in Barrett’s biography while he was Independent Counsel. But as reflected by the earlier biography, Barrett received the award prior to the 2006 conclusion of his investigation. Presumably, he received it, for whatever reason, no later than June 2001, the last month in which Louis Freeh served as Director of the FBI.

Would but that we could all so easily recast problematic episodes of our pasts. Compare Robert E. O’Neill’s representation that a District of Columbia Bar Counsel investigation of his conduct in U.S. v. Dean was initiated by the convicted defendant rather than by Bar Counsel itself, as discussed, for example, 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.”

Addendum 1 – David M. Barrett and Judge Thomas F. Hogan
Through no fault of his own, David M. Barrett – or, rather, the mention of his name – may have had an important role in the outcome of U.S. v. Dean, which was tried before Judge Thomas F. Hogan, a close friend of Barrett. The document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” discusses the way that, shortly before calling Supervisory Special Agent Alvin R. Cain, Jr. to provide immensely improbable testimony in seeming contradiction of the defendant’s testimony, Independent Counsel attorneys sought to undermine the defendant’s credibility in Hogan’s eyes by bringing to his attention the defendant’s innocuous off-the-stand remark about Barrett and Hogan. (Compare that document’s interpretation of factors influencing Hogan with the interpretation in my February 23, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.”) The document styled “The Responsibility of Independent Counsel Arlin M. Adams for the Appointment of Independent Counsel David M. Barrett” addresses the likelihood that the manner in which Independent Counsel attorneys had used the statement about Barrett and Hogan influenced the decision of Independent Counsel Arlin M. Adams not to bring to the attention of the Special Division the varied matters calling into question the suitability of Barrett to serve as Independent Counsel.

Addendum 2 – Thomas T. Demery’s Sworn Denials That He Ever Lied to Congress
Thomas T. Demery also had an important role in U.S. v. Dean. In 1992, the Independent Counsel indicted Demery for perjury for lying to Congress. In the course of reaching a plea agreement that did not include a perjury charge, Demery acknowledged that the statements underlying his perjury charges in the indictment were false and also acknowledged things that would have formed bases for similar charges. Pursuant to an agreement whereby he might avoid prison if he provided completely truthful testimony as a cooperating witness, Demery testified for the government in the Dean case. In doing so, just as he had repeatedly and unequivocally lied to Congress, Demery repeatedly and unequivocally denied that he had ever lied to Congress. Section B.6 of the Prosecutorial Misconduct page and the materials it references address the varied remarkable – nay, astonishing – things Bruce C. Swartz and other Independent Counsel attorneys, as well as retained counsel, said to make the courts in the Dean case believe that trial counsel Robert E. O'Neill did not recognize that Demery’s denials of ever having lied to Congress were false, as well as the Independent Counsel’s implied representation to the court in Demery’s own case that Demery had provided completely truthful testimony in fulfillment of his plea agreement. That section and Section E.3 of the O’Neill profile also address the improbability that Demery would have falsely denied having lied to Congress unless instructed to do so by O’Neill.

The presumption of innocence

The following opinion by Stephen Boyd was published by the Winston-Salem Journal on March 6, 2011.


On Dec. 21, 2003, Willard Brown ended a tragic episode in our community's history by admitting to the police that he raped and murdered Deborah Sykes in August 1984. He apologized to Sykes' family and to Darryl Hunt, admitting that Hunt had nothing to do with it.

Since Hunt's exoneration in February 2004, the Journal has published more than a few letters and had reader responses posted to its website that express an unfortunate sentiment: If Hunt didn't do this, he did other things in the past or would do things in the future for which he probably deserved to go to prison, keeping our streets safer.

I might well have agreed — before I started paying close attention. Having moved to Winston-Salem two weeks after Hunt's first trial in 1985, I did not pay much attention to the coverage of the saga and, if asked, might have repeated what the police and district attorney's office said repeatedly to the press: There were several people involved in the murder, and Hunt was probably one of them.

After reading Phoebe Zerwick's series in November 2003 and talking with Larry Little and the Revs. Carlton Eversley and John Mendez, I began to pay more attention. What I have learned subsequent to 2003 has changed my perspective radically.

In 1985, Hunt was offered a $12,000 reward and told he would not be charged in the crime, if he simply said his friend, Sammy Mitchell, did it. He said, "No, not if I have to lie on Sammy to get it." After his conviction was overturned and before the second trial, the prosecution offered him a plea bargain: Admit to second-degree murder and he could go home that day with the five years he had already served. Hunt said, "No." When asked why, he gave two reasons: He wouldn't bear false witness, and Sykes' family deserved to know who killed her. Had Hunt agreed to either of those offers, justice would never have been served. Justice requires that the right person be convicted and incarcerated, not simply someone against whom a case can be made.

In 1994, Mark Rabil and Hunt's defense team, over the objections of the prosecution, petitioned that DNA analysis of the rape kit be conducted. That analysis revealed that the three suspects implicated in the state's theory of the crime — Hunt, Mitchell and Johnny Gray — could not have been the rapist. Knowing then that the rapist was not in custody, neither the Winston-Salem Police Department nor the district attorney's office reopened the investigation to identify Sykes' brutal murderer.

Rabil, however, kept filing appeals and, finally, in spring 2003, filed a motion to test the DNA evidence in a North Carolina database of violent, convicted felons. That testing led to the identification of Willard Brown as the murderer.

Fortunately, or providentially — as I believe — the case was solved, but not without a very high price and not without the courage, persistence and integrity of both Hunt and Rabil and, along with them, a number of other community advocates for justice, who would not give up on the truth.

So, a decision to pay more careful attention and to develop relationships with some of those involved in these events taught me several lessons. In order to preserve a cardinal principle of our criminal-justice system — the presumption of innocence — we, in the community and in the jury box, must listen and make informed judgments, not simply hold opinions based on those of others. We must carefully distinguish any particular person, along with his or her past — real or perceived — from the crime with which they are charged and wait for evidence, and then weigh its credibility without prejudice.

As for the opinion that our streets would be safer without Hunt among us, I couldn't disagree more. Since his release, Hunt has created the Darryl Hunt Project for Freedom and Justice that educates the public about needed reforms in areas such as more effective eyewitness identification procedures, reviews innocence claims of inmates and helps ex-offenders break the cycle of recidivism. He also serves on the board of directors of the North Carolina Center on Actual Innocence; as chair, Client Policy Group, National Legal Aid Defenders Association (Washington, D.C.); and on the board of the North Carolina Prison Legal Services.

I am very glad that Hunt is back in our community and am honored to work with him and others in these community efforts, including pursuing truth and justice in the Silk Plant Forest Case. If the enrichment that comes from paying closer attention and developing new relationships appeals to you, visit the website http://darrylhuntproject.org/ and join us.

Stephen Boyd is on the advisory board of the Darryl Hunt Project for Freedom and Justice and is the Easley professor of religion at Wake Forest University. He is the author of the forthcoming book Making Justice Our Business: The Wrongful Conviction of Darryl Hunt and the Work of Faith.

In Gould And Taylor Case, Does Connecticut Supreme Court Know The Law?

The following opinion was published in the New Haven Advocate on March 2, 2011.

Doubt it

by David R. Cameron

After the recent oral arguments before the Connecticut Supreme Court, the fate of George Gould and Ronald Taylor may depend on what the justices decide constitutes “clear and convincing evidence” of actual innocence. But judging by their questions and comments, it’s not clear they know what that means.

Gould and Taylor were convicted in 1995 of murdering a New Haven bodega owner in the early hours of July 4, 1993 and sentenced to 80 years in prison. They were convicted because of the testimony of Doreen Stiles, a former drug-addicted prostitute. Stiles said that as she approached the store she heard voices demand that a safe be opened, screams in Spanish, and a gunshot. Moments later, she saw two men leave. She identified Gould and Taylor as the men.

There was no other evidence linking them to the murder. In his closing statement, the trial prosecutor told the jury, “This case rises and falls on the testimony of Doreen Stiles. If you believe her, you’ll convict. If you think she’s lying, you’ll acquit.”

Many years later, Stiles recanted. At a 2009 habeas hearing before Judge Stanley T. Fuger, she testified she had not been near the store, had not seen the men, and had made up the whole story during a six-hour interrogation in which she was threatened with arrest and offered assistance in buying heroin.

Stiles was hospitalized at the time of the trial and her testimony was videotaped, so Fuger was able to see it and compare it with her testimony at the habeas hearing. He concluded she lied in her trial testimony and threw out the convictions.

The state challenged his decision, claiming he applied the wrong standard of proof to their claim of actual innocence, that Stiles’ recantation alone was not sufficient to establish their innocence and they were obliged to prove they were actually innocent.

In Miller v. Commissioner of Correction (1997), the Court established a two-fold standard of proof that a habeas petitioner must meet in order to prevail on a claim of actual innocence. First, the petitioner must persuade the habeas court by “clear and convincing evidence” that the petitioner is actually innocent. Second, the petitioner must establish that, after considering all of that evidence, no reasonable fact finder would find the petitioner guilty.

The question before the Court reduced to this: If, as the trial prosecutor told the jury, the only evidence supporting the conviction of Gould and Taylor was Stiles’ testimony and if that testimony was, as Stiles later testified and Fuger concluded, fabricated in its entirety, does that constitute “clear and convincing evidence” of their actual innocence?

Supervisory Assistant State’s Attorney Michael O’Hare said no, her recantation alone did not constitute proof of their actual innocence. Several justices appeared to agree with his position that Gould and Taylor needed to affirmatively prove their innocence.

But O’Hare and the justices neglected an essential part of the Miller ruling. After establishing the “clear and convincing” standard, that ruling went on to say, “The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.” As the Court put it in an earlier ruling, quoted in Miller, it is “a standard higher than a probability but lower than beyond reasonable doubt.”

Several individuals have been exonerated here for crimes they did not commit and for which they spent many years in prison. The reasons for their wrongful convictions varied. But all of the wrongful convictions shared one attribute in common: all were affirmed by the Connecticut Supreme Court.

By the standard set forth in Miller, Stiles’ credible recantation of her trial testimony, which constituted the only evidence supporting their conviction, represents “clear and convincing evidence” that George Gould and Ronald Taylor are actually innocent. Hopefully, before deciding the case, the justices will read Miller again and realize that “clear and convincing” means just that – clear and convincing.

David R. Cameron is a professor of political science at Yale University.

The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris

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.

With a man's life at stake, DNA test is appropriate

The following editorial was published on February 28, 2011 by the Cleveland Plain Dealer.

By The Plain Dealer Editorial Board

Why would Portage County Prosecutor Victor Vigluicci fight a motion for the DNA testing of a cigarette butt that could help exonerate a man on death row?

Vigluicci says the Ohio Innocence Project motion is a waste of time because an appellate court and the state Supreme Court already denied prior motions from convicted murderer Tyrone Noling.
But the prior motions didn't address the need to DNA test the cigarette butt -- which blood tests after the crime determined had not been smoked by Noling or his co-defendent.

The question now is, who was the smoker?

Attention to that detail seems fully merited in this long-running case, in which the courts repeatedly have declined to consider new evidence that might exonerate Noling in the killing of an elderly Portage County couple.

Noling is no angel. He's a robber with a rap sheet. But the chief witnesses against him have recanted, and another man has stepped forward to claim that his late foster brother admitted to the crime. That kind of uncertainty requires Ohio to slow down and make sure of its case.

Carrie Wood, an attorney with the Innocence Project, argues that the new motion is driven by new evidence that raises doubt about Noling's guilt in the 1990 murders of Bearnhardt and Cora Hartig.

Wood wants to test the cigarette for DNA to see whether it matches that of convicted murderer Daniel Wilson, whose DNA is stored in a criminal database. Wilson was executed in 2009 for burning a woman alive.

Police initially considered Wilson a suspect in the Hartigs' deaths.

Noling has maintained his innocence for more than two decades. Any evidence that casts doubt on his guilt must be considered. Justice demands it.

Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams

by James Scanlan, Esq.

In United States v. Dean (which is discussed or alluded to in my Truth in Justice editorials of June 26 , July 11, August 17, September 4, September 26, and October 3, 2010, and February 6 and February 19, 2011, concerning Robert E. O’Neill and Bruce C. Swartz), at a hearing on February 14, 1994, Judge Thomas F. Hogan of the District Court for the District of Columbia repeatedly noted his concerns about the “cumulative effect” of identified prosecutorial 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 (at 30-31), Hogan refused to grant a new trial.

Requesting reconsideration, the defendant sought a piece of discovery that she maintained would show that a key government witness committed perjury concerning a matter given provocative attention in closing argument. But at a hearing on February 22, 1994, Hogan denied discovery even though he apparently believed that the defendant had told the truth. Observing (at 21) that the matter “could be argued either way . . . but it doesn’t mean of necessity that the government is putting on information they knew was false,” Hogan refused to allow the discrete inquiry that could reveal whether the government in fact deliberately used false testimony.

Part of the reason for both rulings may have involved deference to, and disinclination to embarrass, Independent Counsel Arlin M. Adams, a highly regarded former federal judge, who had served with distinction on the U.S. Court of Appeals for the Third Circuit from 1969 until 1987 and had been several times a serious Supreme Court candidate. In May 1995, three judges comprising the D.C. Circuit’s Special Division overseeing independent counsels showed like deference to Judge Adams, notwithstanding Judge Hogan’s having excoriated the prosecutors in what Robert E. O’Neill would describe as Adams’ “showcase trial.” By letter of May 17, 1995, in conveying its “unmeasured appreciation for a job well done,” the Special Division added: “No one has better carried out the role of independent counsel than you.”

Nearing 90, Adams is presently one of the most revered former jurists in the country. A current or former trustee of a number of prominent institutions, he has also served as Chancellor of the Philadelphia Bar Association, Chair of the Supreme Court Judicial Fellows Commission, and President of the American Judicature Society and the American Philosophical Society. In 2001 Adams was honored by the creation of the Arlin M. Adams Center for Law and Society at Susquehanna University. In 2005 the Annenberg Foundation established the Arlin M. Adams Professorship in Constitutional Law at the University of Pennsylvania Law School, and in 2007, the Earle Mack College of Law of Drexel University created an Arlin M. Adams Professorship of Legal Writing, naming Judge Adams an honorary member of its inaugural class. In announcing the Penn Law professorship, Dean Michael A. Fitts observed: “Arlin Adams' unquestionable integrity and prudent leadership exemplify the highest ideals of the legal profession.”

But a profile on Arlin M. Adams that is akin to the profiles I maintain on Bruce C. Swartz and Robert E. O’Neill shows that Adams was himself much involved in the abuses perpetrated by Swartz and O’Neill in prosecuting the Dean case. And inasmuch as Adams was in charge, he is more responsible than either Swartz or O’Neill, whether or not his stature played a substantial role in causing the abuses to go unaddressed.

Adams has an additional matter to answer for. Many of the abuses in the case – including the remarkable matter highlighted in most of the referenced Truth in Justice editorials, especially those of September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”) and February 6, 2011 (“Bruce Swartz ­– Our Man Abroad”), and that is the subject of Sections B.1 and B.1a of my Prosecutorial Misconduct page (PMP), Section B of the Robert E. O’Neill profile, and Sections A and E and Addendums 3, 4, and 7 of the Bruce C. Swartz profile – involved claims that Deborah Gore Dean had caused HUD to take certain actions to benefit former Attorney General John N. Mitchell. Mitchell, who had died in November 1988, about six months before the HUD scandal broke, had been regarded as a stepfather by Dean. See Section C, D, and E.1 of the O’Neill profile and Sections B, D, E of the Swartz Profile regarding varied matters concerning Mitchell and Addendum 2 to the Swartz profile regarding the less than candid responses to an appellate judge’s inquiries about how Mitchell’s notoriety may have affected the case. See also Section B.3 of PMP, which shows not only that Dean was innocent of the allegations involving Mitchell, but with regard to the one project on which the court of appeals somehow found sufficient evidence to sustain a conviction, Independent Counsel attorneys (a) knew with virtually certainty that Dean was innocent of the charge before they brought it, (b) deliberately forwent the obvious inquiries that would establish beyond any doubt that Dean was innocent, and (c) then used false evidence to prove the claim.

Adams had a significant prior history with Mitchell. Shortly after he was appointed Independent Counsel in 1990, Adams told USA Today that he might have been appointed to the Supreme Court (in 1971) if had not offended then Attorney General Mitchell by a decision concerning anti-war activist Daniel Berrigan. Adams was not exaggerating. According to Bob Woodward and Scott Armstrong’s 1979 book, The Brethren (at 400), Richard Nixon had promised Adams a Supreme Court appointment, but Mitchell vetoed it. According to James Rosen’s 2008 book on Mitchell, The Strong Man (at 484), Adams also clashed with Mitchell at the 1968 Republican convention, which “earned him a tongue-lashing from Mitchell that he never forgot.”

Given that Dean had been a central figure in matters Adams was to investigate, and that Dean’s connection to Mitchell was often mentioned in the press (sometimes with suggestions that she took actions to benefit Mitchell), a responsible (or prudent) lawyer in Adams’ position would have declined the appointment solely to avoid any appearance of impropriety. The failure to do so may yet haunt him or his memory.

When it became known in June 1992 that Adams was bringing an indictment alleging a conspiracy involving Dean and Mitchell, Dean, citing the USA Today article, requested that Adams recuse himself. By letter of June 23, 1992 to Dean’s counsel, Adams denied ever having any animosity toward Mitchell, and stated that “[t]o the extent that the ongoing investigation involves . . . John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Adams added: “In addition, of course, it the grand jury, not this Office, that determines whether or not Ms. Dean will be indicted on particular charges; and it is the petit jury, not this Office, the will ultimately decide whether or not Ms. Dean is guilty of those charges.”

Assuming Adams truly believed he bore no animosity toward Mitchell, one would still expect Adams to recognize the need to avoid any appearance that personal bias will influence a criminal proceeding, as he should have done two years earlier. And anyone familiar with the workings of a federal grand jury would regard as utterly fatuous the statement that the grand jury rather than the prosecutor decides what indictments to bring.

Nevertheless, Adams’ point about the grand jury does highlight an additional aspect of the matter. As of the time of the issuance of the Superseding Indictment on July 7, 1992, the process of deceiving the defense, the jury, and the courts was only beginning. But Adams’s attorneys had already been deceiving the grand jury. That is, presumably the grand jury was not told that numerous statements or inferences in the Superseding Indictment were false. It can be taken for granted, for example, that the grand jury was not told that the conspiratorial reference in the indictment to “the contact at HUD” with regard to a project called Park Towers (part of the Mitchell count) was not a reference to Dean or that eight other key inferences underlying the Park Towers charge were known or believed to be false. See Section C of the O’Neill profile. It can also be taken for granted that the grand jury was not informed that telephone message slips found in Mitchell’s files indicated that Mitchell had secured funding for a project called Arama through Dean’s predecessor. Certainly the grand jury was not informed that, as a result of the message slips and other evidence, Independent Counsel attorneys were virtually certain that Dean was innocent of the Arama charge, but that those attorneys nevertheless believed they could secure a conviction by leading the petit jury to believe various things the attorneys knew or believed to be false. And I doubt that the grand jury was told that Government Exhibit 25 was a fabrication. See Sections B.3 and B.9a of PMP and Section D of the O’Neill profile.

In the event my interpretation the conduct of Adams’ prosecutors in the Dean case becomes widely known, varied institutions may find the Adams name a sort of ironical albatross. This would seem especially so for the Arlin M. Adams Center for Law and Society. The Center is obviously a well-meaning institution and among its admirable missions is the promotion of a criminal justice system that would preclude the type of conduct perpetrated by Adams and his subordinates in United States v. Dean or severely punish it when it occurs. Its first full time director, the recently-deceased Allan D. Sobel, would write on such on such things as prosecutorial misconduct. One item was styled “Prosecutors Rarely Penalized for Misdeeds.” True enough.

Florida won’t pay for injustice

The following opinion by Fred Grimm was published by the Miami Herald on February 19, 2011.

All this talk about compensation for wrongful convictions. Not in Florida. Not for the likes of Anthony Caravella.

Why, it’s Caravella who owes Florida — $71.93 a day. Comes to $682,615.70 for the 26 years Anthony mooched room and board off the Florida penal system, taking up valuable prison space for a crime someone committed.

The lousy freeloader. He’s damn lucky the Florida Legislature doesn’t send him a bill.

Compensation? This is a Legislature bent on cutting public school and state university budgets, pension costs, healthcare for the poor and disabled, nursing-home services for the elderly. Some pathetic case from Miramar, IQ of 67, busted at 15 and imprisoned for the next 26 years for a crime he didn’t commit, released March 25 without job skills? Get real.

Let’s examine the only facts that matter: Anthony Caravella hasn’t established a political action committee, hired a lobbyist or ponied up crucial campaign contributions. He belongs to a politically impotent constituency: Floridians whose lives were ruined by shoddy police investigations, negligent prosecutors, oblivious judges. A bunch of convenient stooges for a justice system in need of quick and easy convictions. In 1983, Caravella, young and slow minded, was easily bullied into confessing to a rape and murder that, 26 years later, DNA testing proved he didn’t commit.

Florida did pass a Victims of Wrongful Incarceration Compensation Act three years ago, after an embarrassing slew of convictions were reversed, most after DNA testing. The law authorized paying innocents $50,000 for every year spent behind bars. It was an “illusory impact,” said Seth Miller, director of the Florida Innocence Project. Miller said the law included a “clean hands” provision that disqualifies a wrongfully convicted prisoner with a prior felony conviction.

“Clean hands” proved to be brilliant money saver for Florida (the only state with such a proviso). Cops don’t find their patsies on the membership rolls of the chamber of commerce. Miramar police knew Caravella from a string of juvenile offenses – the same crimes that now preclude him from compensation.

None of the dozen convicted men cleared by DNA testing in Florida have received compensation. A Sun Sentinel reporter found several afflicted with poverty, living off food stamps. Caravella had spent time in a homeless shelter. Only one, James Bain, who did 35 years of hard time, qualifies under “clean hands” and will likely get his money.

After all, William Dillon, who did 27 years on a trumped up murder conviction, had been busted in 1979 for possession of a single Quaalude. Of course, he’s out of the money.

In a Kafka-like twist, Orlando Boquete, who did 13 years for a murder and robbery he didn’t commit, doesn’t qualify because he managed to escape prison while serving his wrongful sentence.
Luis Diaz, the so-called Bird Road Rapist of Miami-Dade County who, as it turned out, wasn’t, did 25 years. Sorry, Luis. No money.

The list goes on; ruined lives for whom wrongful incarceration compensation remains an illusionary concept. Sorry guys but fairness . . . that’s a budget buster.

U.S. Attorney Robert E. O’Neill and 18 U.S.C. § 1001

By James Scanlan, Esq.

In Truth in Justice editorials of June 26 , July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, 2011, I discussed that Robert E. O’Neill (subject of this profile on jpscanlan.com) was nominated and confirmed for the position of U.S. Attorney for the Middle District of Florida notwithstanding that he made a false statement on the U.S. Attorney application he submitted to the Florida Federal Judicial Nominating Commission in June 2009. In the application, in an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in United States v. Dean, O’Neill stated that the investigation was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a Court of Appeals opinion “deplor[ing]” certain conduct of O’Neill and his colleagues.

In discussing this matter, I have at times mentioned the possibility or likelihood that O’Neil violated 18 U.S.C. § 1001 by making the same statement to representatives of a federal executive or legislative body during the vetting or confirmation process. But I also raised the possibility that the statement on the Nominating Commission application itself violated that statute. In that regard, the August 17 item (“Additional Problems with Middle District of Florida U.S. Attorney Nomination”) discussed a suit brought against O’Neill and others by a former Assistant U.S. Attorney named Jeffrey Del Fuoco, who alleged, inter alia, that O’Neill defamed him by statements in the Nominating Commission application. I noted that in seeking to dismiss the case, Department of Justice attorneys representing O’Neill and Attorney General Eric H. Holder, Jr. had taken the position that the O’Neill’s statements in the application enjoyed an absolute privilege as to defamation issues because the Nominating Commission is a “quasi-legislative body established by members of the U.S. Senate.” I noted that the characterization would provide another argument as to why O’Neill’s false statement in the Nominating Commission application itself violated 18 U.S.C. § 1001.

In an Order of February 11, 2011, Judge James D. Whittemore of the U.S. District Court for the Middle District of Florida dismissed the Del Fuoco suit, holding, inter alia, that O’Neill’s statement on the Nominating Commission application were not defamatory and in any case were protected opinion under Florida law. While not resolving what privileges may exist for statements made on a Nominating Commission application, Whittemore discussed (at 6-9) the way that the status of the Nominating Commission bore on such issue. I have not so far found anything in the discussion that is particularly helpful as to the implications of the status of the Nominating Commission regarding the 18 U.S.C. § 1001 issue, save that Judge Whittemore seems to view the Nominating Commission the same way the Department of Justice does. But in the course of discussing policy reasons favoring a privilege rule that would promote candid responses in applications submitted to the Nominating Commission, Judge Whittemore observed (at 8): “Foremost among these policy reasons is that the President of the United States and members of the United States Senate will rely on the information disclosed by the applicant.”

In the event that Judge Whittemore is correct that the application is forwarded to the President and members of the Senate (or any federal entity), and O’Neill was aware of such fact, those are reasons that the false statement on the application would seem to violate 18 U.S.C. § 1001. But O’Neill is the principal federal law enforcement officer in the Middle District of Florida. So that office is unlikely to take an interest in the matter. As I have noted in a few of the earlier items, by letter dated August 13, 2010, Jay Macklin, General Counsel for the Executive Office for United States Attorneys, advised that the Department of Justice would not investigate any of the issues I had raised with the Department concerning O’Neill’s suitability for the U.S. Attorney position or his then current position of Chief of the Criminal Division in the Middle District of Florida, including the false statement on the Nominating Commission application, because it was Office of Professional Responsibility policy “to refrain from investigating issues or allegations that were addressed, or that could have been addressed, in the course of litigation.” Quite obviously that does not apply to the false statement on the Nominating Commission application. But the Department seems committed to a course of ignoring this particular probable or certain violation of 18 U.S.C. § 1001 by a person seeking a high law enforcement position.

Presumably, however, in the Middle District of Florida federal prosecutors will continue to enforce 18 U.S.C. § 1001 against persons who are not the U. S. Attorney. And, unless he recuses himself, O’Neill will have a key role in establishing office policy on such issues as whether a false statement on an application to the Florida Federal Judicial Nominating Commission violates 18 U.S.C. § 1001, standards for determining whether a false statement is material, and generally the vigor with which 18 U.S.C. § 1001 should be enforced.

In the September 26, 2010 item (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”), I discussed reasons why O’Neill would find it wise to avoid forums where he might be asked whether he lied on his U.S. Attorney application. The same holds for forums where he might be asked about any aspect of 18 U.S.C. § 1001.

Addendum
In the August 17, 2010 item I also discussed the fact that the Del Fuoco complaint alleged that O’Neill had committed perjury in a 2005 deposition by denying that he had made certain putatively threatening statements in the workplace and identified particular individuals who were said to have heard O’Neill make these statements in the workplace. I noted that I had been led to understand that there was some concern within the Middle District U.S. Attorney’s office that the head of the office might soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case went forward, some of those people might be deposed on the matter. Judge Whittemore’s ruling would seem to eliminate the latter concern though it would have no bearing on the former.

Graves injustice

The following editorial was published by the Houston Chronicle on February 15, 2011.

Exonerated death row inmate deserves state compensation for imprisonment

It might not be as unjust as spending 18 years in a state prison for a wrongful conviction. But in denying former death row inmate Anthony Graves state compensation for his ordeal, Texas Comptroller Susan Combs and her staff have trumped grievous judicial error with injustice by technicality.

Because a trial judge neglected to use the words "actual innocence" in an order releasing Graves and dismissing capital murder convictions against him for the killings of six people, the comptroller's staff rejected his application for a $1.4 million state-mandated wrongful imprisonment payment under the Tim Cole Act.

Graves was incriminated by false testimony of one of the participants in the 1992 robbery-murders and prosecutorial misconduct documented by former Houston Assistant District Attorney Kelly Siegler. She served as a special prosecutor reviewing the case after a federal appeals court voided Graves' conviction in 2006 and ordered a new trial. At Siegler's recommendation, the charges were dropped and Graves freed.

Siegler, known as a hard-line law-and- order prosecutor during her Houston career, has no doubt that Graves is innocent and deserves the state payment.

"I'm willing to testify to the fact that we believe he is innocent," she told the Chronicle. "I've signed an affidavit. I'm not sure what we are supposed to do to make it happen."

The latest complication occurred when the judge overseeing a new trial, Reva Towslee-Corbett, signed an order last year dismissing charges against Graves but failed to use the words "actual innocence." The law only allows 15 days to amend such an order. As Towslee-Corbett did not, and no longer has jurisdiction over the matter, Graves' attorney Nicole Casarez filed a compensation request with the comptroller, hoping that declarations of Graves' innocence from Siegler and Burleson-Washington County District Attorney Bill Parham would suffice.

That hope was dashed last week when the comptroller's office e-mailed a letter to Casarez stating that the judge's order was insufficient to qualify for compensation.

Graves, who has shown amazing forbearance and understanding through his long ordeal, reacted in similar fashion. "Nothing has ever been easy for me on this road to justice," he said. "I haven't given up on it, and I hope justice will prevail and I'll be compensated." Attorney Casarez indicated a civil suit to claim the state payment is an option.

It's obvious to us that under the spirit of the state legislation passed in 2009, Graves deserves compensation. No one disputes the fact that the man is actually innocent. And the $1.4 million payment that he's due according to the state's formula hardly makes up for the loss of freedom for most of his adult life. The state has paid more than $30 million to 67 wrongfully imprisoned Texans. Graves should be the 68th.

Comptroller Combs has appeared before the Chronicle editorial board in the past and earned our endorsement for office. We believe she is a fair-minded and diligent public official who should not be a party to this obvious injustice by technicality. We urge her to review the exceptional circumstances of the Graves case and do the right thing. No one can return his lost years, but the state of Texas can pay him the money.

We owe it to him.

Lenore Skenazy: When we always assume the worst

The following opinion by Lenore Skenazy was published by the San Gabriel Valley (CA) Tribune on February 14, 2011.

SHAKEN baby syndrome.

It's a horrible term most of us are familiar with, even though it only came to public consciousness maybe 20 years ago. And now, as it turns out, many people may be in prison because we got it wrong.

A recent New York Times Magazine story by Emily Bazelon, "Shaken-Baby Syndrome Faces New Questions in Court," is a shocking look at how our desire to save the children - and be ever on the alert for child killers - may have led us astray.

The main thesis is that the symptoms that indicate a baby has been severely shaken don't always show up immediately after the shaking. We used to think they did. So some caregivers who went to prison because they were the most recent people seen with the babies were perhaps wrongly convicted. The babies could have been hurt hours or perhaps even days earlier - by other people - and just happened to succumb while in their care.

It's even possible that in some cases the "shaken babies" weren't shaken at all but suffered a stroke or manifested the "shaken" symptoms after a concussion that may or may not have been inflicted deliberately. In other words: We don't know enough about this syndrome to be certain about whom to sentence.

Yet off to prison the caregivers went, for two reasons. First, of course, we THOUGHT we had the scenario right. Arrest the caregiver at the scene of the crime.

But the other reason is our absolute willingness to engage in "worst first" thinking.

That's my term for our current tendency to jump to the very worst possible conclusion first, no matter how unlikely it might be. In the case of shaken baby syndrome, many of the caregivers were considered kindly, patient women. They had spotless records. They never had been seen hurting any kids before.

But because we have been conditioned to believe that perverts, predators and baby killers are always hiding among us (like Salem's witches), it was easy for us to ignore all the positive evidence about these women and instantly embrace the idea that they were monsters.

This is the same mentality that led a nation to believe the worst of three generations of caregivers at the McMartin preschool in the 1980s. That was when a series of children testified, after lots of "repressed memories" were dredged up by a zealous social worker, that the McMartin family members working at the school not only molested them but also dragged them into secret tunnels, flushed them down toilets, lopped off the ears of bunnies and sacrificed a giraffe - wild stuff.

"Worst first" thinking meant that rather than assume "these kids have let their imaginations run wild," the public thought, "Just goes to show you that our kids are always in danger! Those MONSTERS." And off to prison those caregivers went, too.

We seem to lose our critical faculties when we contemplate children in danger, not only because our love overwhelms reason but also because we have been told over and over again that it is SMART to be SUSPICIOUS. Why does that old man want to give cornet lessons? Why does that executive want to be a Boy Scout leader?

This explains why so many schools now require background checks for volunteers. (Why do they REALLY want to help out?) It explains why many Sunday schools require two teachers in a classroom.

This eagerness to think the worst of anyone having anything to do with our kids is making us paranoid. Far from making the world safer, it also seems to be putting some innocent people in prison. It's time to take a deep breath and think the worst ... later. A lot later. Only after facts and reason have weighed in first.

lskenazy@yahoo.com

Lenore Skenazy is the author of "Free-Range Kids: How to Raise Safe, Self-Reliant Children (Without Going Nuts with Worry)" and "Who's the Blonde That Married What's-His-Name? The Ultimate Tip-of-the-Tongue Test of Everything You Know You Know -- But Can't Remember Right Now." She is a columnist with Creators Syndicate.

Justice has not been served in the case of a 27-year prisoner

The following editorial was published by the Washington Post on February 12, 2011.

THOMAS HAYNESWORTH has spent the past 27 years behind bars for crimes he probably did not commit.

Mr. Haynesworth was 18 years old and had a clean record when he was charged in Richmond in 1984 with raping or assaulting four women. He pleaded not guilty to all charges but was convicted in three of the four cases and sentenced to some 70 years in prison.

Mr. Haynesworth was offered a glimmer of hope in 2005 when then-Gov. Mark R. Warner (D) ordered a review of thousands of criminal cases after the exoneration of five wrongly convicted men. DNA evidence proved that Mr. Haynesworth was innocent of two rapes - one for which he was convicted and the other where the jury acquitted him based on other evidence. The DNA conclusively pointed the finger at another Virginia man, a serial rapist who came to be known as "the Black Ninja" and who is serving multiple life sentences for other crimes.

Mr. Haynesworth, now 45, and his lawyers from the Mid-Atlantic Innocence Project have petitioned a Virginia appeals court to throw out the two remaining convictions. They have garnered support from some extraordinary sources, including Virginia Attorney General Ken Cuccinelli II, Henrico County prosecutor Wade Kizer and Richmond prosecutor Michael Herring. "New evidence calls into question those convictions. I support his petition," Mr. Cuccinelli said in a statement. Mr. Herring told The Post's Maria Glod that "this is a sad case of the wrong guy locked up."

No DNA evidence was salvaged from these remaining cases, but the attacks closely resemble those committed by the Black Ninja - a black man who attacked white women between the ages of 15 and 30. Inconsistencies in the victims' description of the attacker - a relatively commonplace occurrence with victims and alleged perpetrators of different races - point to Mr. Haynesworth's innocence. One victim - a 5-foot-8½-inch woman - said that the attacker was taller than she was; Mr. Haynesworth, at 5 feet 6½ inches, did not fit the bill. Mr. Haynesworth also passed two polygraph tests.

The Virginia Court of Appeals has Mr. Haynesworth's fate in its hands and should act expeditiously. Mr. Haynesworth's lawyers have held off on filing a pardon petition with Gov. Robert F. McDonnell (R) to allow the court system to work; governors rarely act before the courts have had their final say, and in Virginia any pardon petition must first be vetted by the state Parole Board, which further delays a final disposition. But Mr. Haynesworth's lawyers should turn to the board and the governor's office if the appeals court does not act within a few months.

Mr. Warner deserves credit for insisting on the review that allowed for the discoveries in Mr. Haynesworth's case. Mr. Cuccinelli, Mr. Kiser and Mr. Herring are to be commended for demonstrating that prosecutors and lawyers for the state serve as honorably when they prevent an innocent man from unjust incarceration as they do when they ensure that the guilty do not go unpunished. Still, Mr. Haynesworth can never get his years back, and as long as he remains in prison, justice is disserved.

Grant overdue audit of Wisconsin Office of Lawyer Regulation

The following is a Wisconsin State Journal editorial published on Thursday, February 10, 2011

Wisconsin's wimpy and secretive Office of Lawyer Regulation definitely needs a state audit.

The Joint Legislative Audit Committee should quickly approve Sen. Mary Lazich's request for a "comprehensive, independent review" that she correctly called "long overdue."

The OLR showed how badly it is failing to do its job last year with its mishandling of the Ken Kratz case. The OLR is supposed to hold lawyers accountable for wrongdoing. Yet it lamely ruled that Kratz's obnoxious and unethical behavior involving a domestic abuse victim didn't constitute misconduct.

Kratz, while serving as the Calumet County district attorney, tried to spark an affair with the traumatized woman while simultaneously prosecuting her ex-boyfriend. Kratz sent some 30 text messages such as: "Are you the kind of girl that likes secret contact with an older married elected DA... the riskier the better?"

The woman complained to police that she felt pressured to have a relationship with Kratz or he would drop charges against her boyfriend. And what would have happened if the woman had agreed to a relationship with Kratz? Would he have gone overboard in prosecuting her ex-boyfriend to try to impress her?

Not until then-Gov. Jim Doyle moved to force Kratz from office did Kratz resign.

The OLR's shortcomings go way beyond one embarrassing case. Lazich cited recent articles in the Milwaukee Journal Sentinel raising "serious concerns about the timeliness, quality and effectiveness of the work of this office." The newspaper found at least 135 lawyers continuing to practice in Wisconsin after breaking the law.

"The system is run by lawyers and is for lawyers," said Michael Frisch, an expert on lawyer discipline at Georgetown University.

State Journal reporting has raised similar concerns about the OLR in recent years.

The state Supreme Court should tighten its rules on lawyers and require transparency at the OLR.

At the same time, the Joint Legislative Audit Committee should approve Lazich's wise call for an audit.

The public deserves a broad and independent assessment.

Bruce Swartz ­– Our Man Abroad

by James Scanlan, Esq.

Since at least 2001 Bruce C. Swartz has been the Deputy Assistant Attorney General in the Department of Justice’s Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. At least in this era, this is certainly one of the most important career positions in the Department and it is likely more important than many presidentially-appointed positions. A Google search for “bruce swartz deputy 2011” will give one a hint, though surely only a hint, of the scope of Swartz’s current involvement in crucial international issues, as will a like search with the word “wikileaks” added.

Among my Truth in Justice editorials regarding the nomination of Robert E. O’Neill for United States Attorney for the Middle District of Florida (June 26 , July 11, August 17, September 4, September 26, and October 3, 2010) the September 4 item (“Doubtful Progress on Professional Responsibility at DOJ”) gave special attention to Swartz, who, as Deputy Independent Counsel, supervised O’Neill’s prosecution of United States v. Dean and then responded to allegations of pervasive prosecutorial misconduct. The item discussed that during the trial Swartz and O’Neill pressured a government agent into giving misleading testimony in order to enable O’Neill to provocatively assert that the defendant had lied about a conversation with the agent, even though Swartz and O’Neill knew that the defendant’s testimony was true. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. The item also discussed Swartz’s efforts to deceive the court in covering up these actions when the matter was raised in a post-trial motion. As part of an aggressive strategy in that regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation.

The agent was Supervisory Special Agent Alvin R. Cain, Jr., and actions of Swartz, O’Neill, and their colleagues regarding Agent Cain are discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page (PMP), Sections A and E and Addendums 3 and 4 of the Bruce C. Swartz profile, and Section B of the Robert E. O’Neill profile. Readers of those materials will conclude that, assuming my interpretation is essentially correct, Swartz’s actions certainly were heinous and probably were criminal as well. And I doubt that many will question my interpretation, which, it warrants note, was originally suggested to me by Associate Deputy Attorney General David Margolis – albeit, incongruously, as a reason for believing that the conduct of Swartz and O’Neill was not as egregious as I maintained. See Sections B.1 and B.8 of PMP and Section B.1 of my May 25, 1995 letter to Margolis.

The September 4 item also suggested that Swartz’s actions in generally defending against allegations of prosecutorial abuse could serve as a case study of impermissible evasions and deceptions that prosecutors employ to hide their misconduct. In Addendum 2 to a September 26 item (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”), I then noted that Addendum 7 had been added to the Swartz profile to further develop that point and suggest measures to ensure that prosecutors respond truthfully to misconduct allegations.

The September 4 item also discussed the Department of Justice’s recent refusal to consider whether Swartz’s actions concerning Agent Cain’s testimony and other aspects of the Dean prosecution called into question Swartz’s fitness to serve in his current position. The Department based its refusal on the grounds that it was Office of Professional Responsibility policy not to investigate matters that were or could have been addressed in litigation. It seems a fair assumption that the Department has failed even to ask Cain (or Swartz or O’Neill) whether the allegations concerning Cain’s testimony are true.

Nevertheless, the Department of Justice, by putting Swartz forward to represent it in dealing with foreign nations, has impliedly assured those nations that it has no basis to question Swartz’s integrity. Such, at any rate, is what representatives of those nations have every reason to expect.

What then are representatives of those nations to think when they inquire into the background of the person with whom they are dealing on highly sensitive issues by a simple Internet search for, say, “bruce c. swartz” or “bruce swartz department of justice,” and they are taken immediately to one of the Truth in Justice editorials or one of the pages I maintain on Swartz’s conduct (as recently happened to representatives of Hungary and the European Union and as from time to time happens to representatives of varied foreign governments)? One thing that they might reasonably think is that they ought not to regard Swartz as a trustworthy person in their dealings with him. A more important thing that they might reasonably think is that they cannot trust the Department of Justice that has impliedly assured them that Swartz is a person of integrity. That failure of trust goes not merely to the Department’s word, but to the Department’s judgment, given that both the allegations against Swartz and the Department’s dubious justification for refusing to examine them are so readily available on the Internet.

This point holds even as to the Department’s implied assurances. But the matter will rise to another level if a foreign government confronts the Department with some perceived basis for distrusting Swartz and the Department is placed in the position of deciding whether it can affirmatively, and truthfully, vouch for Swartz’s integrity. That, I think, is something that it would be impossible for the Department to do without thoroughly investigating Swartz’s conduct in the Dean case, including what actions he may have taken to cover up that conduct in a District of Columbia Office of Bar Counsel investigation (which investigation is the same one that Robert E. O’Neill lied about in his United States Attorney application). See Section B.11a of PMP and Addendum 7 to the Swartz profile.

The Department of Justice’s approach to the allegations against Swartz, as with the refusal to allow Robert E. O’Neill’s false statement on his application or varied other indications of dishonesty to stand as an obstacle to his appointment, is presumably founded on the belief that too few people will ever know about the matter to cause the Department serious embarrassment. The belief was likely sounder prior to the advent of the Internet, but the belief still may be correct. Yet, even if the Department never experiences significant embarrassment from its failure to ensure the integrity of its officials, that will leave open the question of the extent to which perceptions arising from the Department’s failure compromise the interests of the United States or diminish the regard in which the nation’s officials and institutions are held by foreign governments.

My October 3 editorial, which addressed whether citizens of the United States can rely on assurances of the Department of Justice (or the Senate Judiciary Committee) as to the integrity of public officials given what we know about the confirmation of Robert E. O’Neill, was titled “Whom Can We Trust?” This item could have been titled “Whom Can They Trust?”

Justice must be served to keep Nancy Smith and Joseph Allen free

The following editorial was published by the Lisbon, Ohio Morning Journal on February 6, 2011.


Efforts are under way on several levels to keep Nancy Smith and Joseph Allen from being sent back to prison. Those efforts need to continue until both get their lives back.

On Monday, defense attorney Jack Bradley and Lorain County Common Pleas Judge James Burge intend to file motions asking the Ohio Supreme Court to reconsider its ruling that overturned Burge’s acquittals of Smith and Allen.

In 1994, the two were found guilty of taking several young children who rode Smith’s Head Start bus to Allen’s Lorain home and sexually abusing them and received long sentences.

After a minor error in a sentencing entry sent the pair to Burge’s courtroom in 2009, rather than correct the error, Burge acquitted them, stating he believed they were innocent. Last month, the Ohio Supreme Court ruled Burge lacked jurisdiction to do so and ordered the judge to restore their original prison sentences.

Bradley said since the Ohio Supreme Court recently issued an opinion on another case, State v. Ross, in which it determined it was unconstitutional to overturn an acquittal, he feels the high court has an obligation to clarify why it is overturning Burge’s acquittal of Smith and Allen.

The Ohio Innocence Project, part of the Innocence Network, is also continuing to lend support. The Ohio group sent a 2007 letter to the Ohio Parole Board stating there was an overwhelmingly amount of evidence indicating both were innocent.

The letter cited affidavits from school aides who rode with Smith on the week of the alleged crimes saying no inappropriate conduct occurred. The letter also said the children were “subject to questionable and coercive investigative tactics” that hindered Smith’s ability to “have an adequate defense and a fair trial.”

Smith and Allen were unjustly prosecuted, wrongly convicted and forced to serve 15 years in prison for crimes they didn’t commit. Now, unless the Ohio Supreme Court reverse its own ruling, it appears it will be the first high court in American history to send two people who have been found innocent back to prison.

Supporters of Smith and Allen are ready to take their plight to the U.S. Supreme Court.

Whatever it takes, justice will be done only when Nancy Smith and Joseph Allen are cleared and allowed to remain free.