Issue 281
March 5, 2004
Her Majesty the Queen v. Smith (S.C.C.)
Her Majesty the Queen v. K.K. (Ont. C.A.)
* * * * *
Her Majesty the Queen v. Smith (S.C.C.), Judgment
Released on March 4, 2004
The Appellant was convicted of second-degree murder in 1985 and sentenced to life imprisonment. He maintained his innocence throughout the proceedings and promptly filed a notice of appeal. The Appellant had a falling out with his counsel shortly after that. The Appellant did everything in his power to move the appeal ahead, however it was not until April 1993 that he was able to retain his present lawyer. The Appellant was granted bail pending appeal in November of 1993. He was at that time terminally ill with lung cancer and passed away in February of 1994. The appeal sat until April 16, 2001, when the Crown moved to abate the appeal.
Binnie J. for the Supreme Court of Canada held that when an Appellant dies after having properly filed a notice of appeal, the jurisdiction of the Court of Appeal continues. On the death of an Appellant, an interested party who seeks to continue the appeal should bring a motion for substitution of the interested party or a personal representative for the deceased.
The Court recognized a significant problem in this scenario being that a deceased Appellant cannot give instructions and is not amenable to the direction of the Court.
Once a live representative has been substituted the Court must determine whether special circumstances exist which make proceeding with the appeal “in the interests of justice”. The Court gave the following non-exhaustive list of factors to be considered in this determination:
“..the presence of a proper adversarial context; the strength of the grounds of the appeal; the existence of special circumstances that transcend the death of the individual Appellant/Respondent; the expenditure of limited judicial resources; etc.”
The Supreme Court agreed with the Court of Appeal’s finding that this was not an exceptional case in which discretion should be exercised in favour of a continuation, despite finding that the grounds of appeal were serious in this case and had the appeal been determined in the Appellant’s lifetime a new trial would have been the correct result.
*****
The Appellant K.K. was charged with six pairs of charges of a sexual nature involving six different complainants. Four counts were historic separated from the other two by several decades. The Appellant was convicted by a jury of sexually assaulting five of the six complainants and designated a long term offender.
The Crown, in cross examining the defence witnesses elicited bad character evidence relating to the Appellant. K.K. himself admitted on cross examination that he was physically abusive to his former wife. The former wife, called by the defence, testified that K.K. had physically and sexually abused her throughout the marriage. Other defence witnesses testified to incidents of inappropriate conduct between K.K. and young females.
At trial, no objection was raised to the line of questioning the Crown pursued and no objection to the admissibility of the bad character evidence. There was no ruling on the admissibility of the evidence. The trial judge did not address the issue of bad character evidence during the charge to the jury, and specifically no instruction was given to the jury concerning propensity reasoning.
Justice Goudge writing for the Court of Appeal found that even assuming the evidence was admissible, it clearly required a caution from the judge because it portrayed the Appellant as a person who physically and sexually abused his wife and conducted himself inappropriately with young females. The judge also found that the probative value of the evidence was dubious and that the prejudicial effect was serious and hard to overstate. The trial judge ought to have instructed the jury that this evidence was not to be relied on as proof that the appellant is the sort of person who would commit the offences charged.
The Court also commented on the failure of defence counsel to object to the absence of such a caution (or the admissibility of the evidence at all). “…where, as here, the error relates to a non-direction on an important legal principle, the failure to object at trial will have much less significance in determining the merits of this ground of appeal.”
Justice Goudge also commented that it would have been preferable, in the circumstances, to separate the counts of historic complaints from the contemporary complaints, though it was in the trial judge’s discretion to proceed as he did. Having chosen to proceed with all complaints in one trial, the trial judge ought to have cautioned the jury about propensity reasoning. It was not enough for the judge to warn the jury that they should not use the evidence of one count as evidence on the other counts.
The Court of Appeal set aside the Appellant’s conviction and ordered a new trial. The long term offender declaration was also quashed.
* * * * *
The following article appeared in the Washington Post (on-line edition) on March 3, 2004:
In
Martha Stewart's Defense, A High-Priced 'Everyman'
Studiously
Rumpled Attorney Morvillo Lets the Zingers Fly
By Lynne
Duke
NEW YORK,
March 2 -- Balding, with a deep comb-over, plus hunched shoulders, a
double chin,
and glasses resting low on a bulky nose, Robert G. Morvillo raised his arms in
disbelief. All was quiet inside Courtroom 110 of U.S. District Court for the
drama of the defense's closing arguments in the Martha Stewart stock-sale
conspiracy trial. And Morvillo, for years one of the city's most watched
litigators, did not disappoint.
"They
weren't on the same page! They weren't even in the same book!" he bellowed
to the jury, saying that any allegation of conspiracy between Stewart and
co-defendant Peter Bacanovic was a joke.
"One
was reading 'Ship of Fools' and the other was reading 'Song of Bernadette.' To
believe the prosecution's story, you gotta believe in Jimmy Breslin's 'The Gang
That Couldn't Shoot Straight.' "
Morvillo's
words dripped with ridicule. The government's case against Stewart and
Bacanovic had "serious, major, gaping, huge holes." And in yet
another literary reference, he said the government had presented a case that
was just "a confederacy of dunces."
He
blustered, he whispered, he spoke as he would to a good friend. This moment,
this day, was Morvillo's forte: playing to a jury, holding it in the palm of
his hand (or at least trying to) and talking to the jurors as if he were trying
to right an outrageously grievous wrong.
His
reputation within New York's legal fraternity is that of an ace litigator with
whom only the foolish would relish a fight. It made perfect sense, some in the profession
said, that Stewart turned to Morvillo to get her out of the mess of her ImClone
Systems stock sale and the federal charges of conspiracy and obstruction of
justice it wrought. (The most serious charge, securities fraud, was dismissed
last week.)
But Morvillo
and Stewart make an odd client-lawyer pair. With the look of an overworked
insurance man, he is as rumpled as she is perfectly put together. Something
about the 66-year-old Morvillo conjures a gabby New York cabby. Though he is
among that cadre of stratospherically high-priced litigators whose clients are
headline names, something about him is an "everyman."
"He's
certainly not the slickest," says Rick Fischbein, founding partner of
Fischbein Badillo Wagner Harding. "Juries always like him. He's not
supercilious. He doesn't come across as a slick, sharp attorney. He comes
across as a kind of regular guy. And he's a devastating cross-examiner."
His
courtroom demeanor is not a shtick, says Victor A. Kovner, a legal confederate
and admirer of Morvillo. Kovner is a senior partner at Davis Wright Tremaine, a
former corporation counsel of New York and an avid reader of Morvillo's column,
"White Collar Crime," in the New York Law Journal.
"All
lawyers who are doing trial work and other forms of litigation are 'on,' "
Kovner says. "But I don't think he presents himself and his arguments in a
manner that is inconsistent with how he conducts himself generally. He doesn't
act."
In the
courtroom, presided over by Judge Miriam Goldman Cedarbaum, outbursts aren't
allowed. There is, after all, the gavel to contend with.
But in the
overflow room, where about 100 lawyers, reporters and laypeople watched the
closed-circuit proceedings Tuesday on a huge screen, Morvillo's closing made
for much theater. Hoots and laughter punctuated Morvillo's presentation as his
zingers hit their mark in this peanut gallery.
People
howled when he let loose with his first line: an apology to prosecutors for the
way he began his opening argument back in January, when he characterized the
Stewart case as a product of "the Justice Department of John
Ashcroft."
Today, he
said with high drama, "I will never, ever mention that name again in an
American court of justice."
He is the
name partner of Morvillo, Abramowitz, Grand, Iason & Silberberg, a
40-lawyer firm he established in 1973. Among his other well-known clients was
Rep. Robert Garcia, convicted of extortion in the 1989 Wedtech scandal. In
another bribery case, he won acquittal in 1987 for John Zaccaro, husband of former
Democratic vice presidential candidate Geraldine Ferraro. He also represented
the Saudi financier Adnan Khashoggi, alleged to have siphoned money from the
Philippines for Ferdinand and Imelda Marcos but acquitted with them in a
federal case. Two years ago he represented Robert Iler, who played the son of
Tony Soprano of the HBO series "The Sopranos," on a robbery charge
(he got probation).
In the 1960s
and 1970s, Morvillo served in the U.S. attorney's office for the Southern
District of New York. He was a chief trial assistant in the fraud unit there,
and then chief of the criminal division, where he mentored a young assistant
U.S. attorney named Rudolph Giuliani.
Giuliani
watched and learned as Morvillo led the criminal division in prosecuting a
controversial police corruption case that came to be popularized in the movie
"Prince of the City."
"It was
a very, very hotly contested case, and he won the case," says Giuliani,
the former U.S. attorney and New York mayor. (A judge later noted
disapprovingly, though, that a federal informant was allowed to walk away with
thousands of dollars in stolen money.)
"His
style as a prosecutor was no different from his style as a defense
lawyer," Giuliani says. "He's
very passionate -- passionate, over the top, very emotional and fiery"
(qualities, by the way, that came to be associated with Giuliani as well).
It is by
design, says Giuliani, that Morvillo dresses understatedly. Giuliani recalled
how his boss used to berate attorneys in his division if they were overdressed.
"He
used to get annoyed if assistant U.S. attorneys were dressed up too well,"
Giuliani recalls. "He used to say, 'Jurors don't want to see prosecutors
in $500 suits.' "
Morvillo has
the "single greatest asset a trial lawyer could have," Giuliani says.
"Some people can be gracious. Some people can be tough. Some people can be
charming. Some people can be grumpy. But the core is honesty. People trust him.
He's a straight guy."
Tuesday,
Morvillo stroked the jury. He thanked them for their sacrifice. He told them
how important they were, that now it was their turn to send a message. At one
point, as he attempted to sow reasonable doubt, he listed what he said the
prosecution had failed to produce to prove its case: notes, e-mails, documents,
witnesses, etc. Then, sarcastically but in a near-whisper, he said to the rapt
jurors, “Don’t we need something like that?”
The case
goes to the jury Wednesday.
* * * * *
The following article appeared in The New York Times (on-line edition) on March 3, 2004:
Gavel
for Some, and Muffins for Others
By Jonathan
D. Glater
If Martha
Stewart were a judge, she might run her courtroom much as the judge overseeing
her criminal trial has done.
Miriam
Goldman Cedarbaum has allowed lawyers to make their arguments but has hurried
them along when they began to ramble, reined them in when they misspoke, chided
them when they were rude and even corrected their grammar. She has made a
concentrated effort to make sure that the jurors are comfortable, going so far
as to serve them muffins in the morning.
She has
also, some lawyers and court regulars suggest, run the trial with formality and
a respect for the rights of the defendants that may ultimately benefit Ms.
Stewart and her co-defendant, Peter E. Bacanovic. And although some of her rulings have earned criticism, she has
kept what could have been a chaotic proceeding, driven by grandstanding lawyers
and a swarm of ever-eager journalists, orderly and firmly under her control.
"She
seems to have done a very good job of controlling what could've been an
explosive situation," said Joseph T. McLaughlin, managing partner of the
New York office at Heller Ehrman White & McAuliffe. "She's got a jury
that undoubtedly is following every move and facial expression."
How the jury
perceives the judge and her handling of the lawyers in the case could well
affect their deliberations, several lawyers said. She has repeatedly criticized
one lawyer for Mr. Bacanovic, for example, and has shown relatively more
deference to Robert G. Morvillo, Ms. Stewart's lawyer. The differences will
probably affect how jurors think about the closing arguments that they heard on
Monday and Tuesday.
"I
would think that Martha got a good draw here," said one lawyer who has
appeared in front of the judge and who declined to be identified because he
might appear in front of her in the future. "This judge would have a much
harder time putting her away for a long time."
Judge
Cedarbaum is expected to instruct jurors today on the conclusions they must
reach to come to a verdict. Jurors pay close attention to her, said one lawyer
who served as the judge's law clerk, and the instructions will be important in
the case.
In cases he
saw while working for the judge, he said, "the jurors loved the judge.''
"They
had complete trust in her, they meticulously followed the instructions that
they were given."
But Judge
Cedarbaum has also taken the case in unusual and unanticipated directions,
making some surprising decisions in the course of the trial. Last week she
threw out a novel securities charge against Ms. Stewart before the jury could
consider it. Earlier, she upheld defense lawyers' objections to efforts by
prosecutors to show the jury telephone records that prosecutors argued would
show calls between Ms. Stewart and Mr.
Bacanovic, who among other things are charged with conspiring to hinder
an investigation of Ms. Stewart's
sale of ImClone Systems stock in December 2001. And to the frustration of the
news media, she has consistently tried to close some proceedings to the public.
"That
surprised me," said one lawyer who had appeared in front of the judge. He
speculated that she did so to protect the jury's privacy. Another lawyer suggested that perhaps the
judge sought to keep reporters out to head off a potential basis for an appeal
by defense lawyers who might argue that the jury was affected by their
presence.
Judge
Cedarbaum attended the same college, Barnard, that Ms. Stewart did, but more
than a decade separates them. The judge went on to Columbia Law School,
graduating in 1953, followed by a prestigious federal clerkship and then a
stint in the United States attorney's office - the same office that is
prosecuting Ms. Stewart - before embarking on a varied legal career in which
she, like Ms. Stewart, was consistently breaking into an arena that at the time did not have many
women. She was one of 8 women in her law school class of 280; at the time, the
only female law clerk to a federal district judge in Manhattan; and one of two
women in the United States attorney's office when she was there.
"She
was certainly a rarity in the United States attorney's office," recalled
Judge Leonard B. Sand of Federal District Court, who met Judge Cedarbaum in
that office in the early 1950's. "Her tremendous ability was such that she
opened doors that were not generally open to women."
Lawyers who
have appeared before Judge Cedarbaum use words like "meticulous,"
"cautious" and "deliberate" to describe her. It is telling
that when she tossed out the securities fraud charge, she did not conclude that
the legal theory behind it was unfounded but that the evidence was not enough
to prove it, one lawyer said.
"She's
not going to rush to break new legal ground if she doesn't have to," this
lawyer said.
But she is
quick to point out lawyers' fumbles during the trial. At one point, one
prosecutor, Michael Schachter, put a question to a witness and was visibly
surprised by the answer. The judge offered this piece of advice, useful to any
trial lawyer: "Always a good idea to know the answers to the questions you
ask."
The judge
corrected Ms. Stewart's lawyer, Robert G. Morvillo, when he asked a witness,
"Did you gift some of your shares when you were the general counsel of
Martha Stewart Living Omnimedia?"
After the
witness answered, the judge commented that the word "gift'' was really a
noun.
Mr.
Morvillo: "My English teacher would be ashamed of me, your honor."
After the
jury reaches a verdict in the trial of Ms. Stewart and Mr. Bacanovic, the judge
has another big event to look forward to: a reunion with former law clerks,
currently scheduled for the end of the month, one clerk said.
"We're
all looking forward to whatever stories she has at this one," the clerk
said.
Constance L.
Hays and Leslie Eaton contributed reporting for this article.
* * * * *
The
following article appeared in The New York Times (on-line edition) on March 4,
2004:
THE BLACKMUN
PAPERS
Documents
Reveal the Evolution of a Supreme Court Justice
By Linda
Greenhouse
WASHINGTON,
March 3 - In the spring of 1992, Justice Harry A. Blackmun's struggle to preserve the right to
abortion he had articulated for the Supreme Court two decades earlier was
headed for bitter failure.
Five
justices had voted in a closed-door conference to uphold provisions in a
restrictive Pennsylvania abortion law. Roe v. Wade was in peril. Then, suddenly, everything changed. A letter
from Justice Anthony M. Kennedy, whom Justice Blackmun had long since written
off as a potential ally, arrived at his chambers.
"Dear
Harry," the letter began. "I need to see you as soon as you have a
few free moments. I want to tell you about some developments in Planned
Parenthood v. Casey, and at least part of what I say should come as welcome
news."
It would be
another month before the nation learned the news that Justice Kennedy delivered
in person the next day: a trio of Republican-appointed justices had secretly
formed a team to preserve the right to abortion. After the meeting, Justice Blackmun picked up a pink memo pad and
scribbled, "Roe sound."
The news was
a gift that brought vindication, and not only because Justice Blackmun knew he
would be remembered for the opinion he had produced at the start of his Supreme
Court career. In ways he could not have predicted, the experience of writing
and then defending Roe v. Wade had changed him, launching the middle-aged Nixon
appointee on a journey that now found him, at 83 and nearing retirement, the
most liberal member of the Supreme Court.
He had been
a central figure at a time of transition, someone who first curbed the
liberalism lingering from the Warren court, then acted as a brake on the rising
conservative forces of the Burger and Rehnquist courts.
It was a
remarkable evolution, the outline of which is apparent from the official record
of votes and opinions in the thousands of cases that came before the court
during his 24-year tenure. But Justice Blackmun left behind much more. He had
collected more than a half-million letters, notes, memos and journals that
provide a fuller portrait of him and offer
insights
into the life of the court during the last quarter of the 20th century.
After
retiring in 1994, he gave the papers to the Library of Congress on the
condition that they remain closed for five years after his death, a restriction
that expires Thursday. That unusually short period allows the public to learn
his views of colleagues still on the bench, something justices do not often
permit. The New York Times got an advance look at the documents.
They
disclose behind-the-scenes shifts during decision-making and the origins of
important rulings, including Roe v. Wade. The papers show the disarray of the
Burger court and the relative calm of the Rehnquist court. They also tell a very human story: how the
long friendship between Warren Burger and Harry Blackmun could not survive the
cauldron of their joint service on the nation's highest court.
And they
help explain one man's journey. Justice Blackmun did not simply stand still
while the court around him became more conservative. His movement across the
court's spectrum was not just relative, but absolute; while the court went in
one direction, he went in another.
A dissenter
from the court's 1972 decision that struck down all existing death penalty
laws, he ended his career in 1994 with a ringing denunciation of capital
punishment that left him as the court's sole categorical dissenter on the
issue. His papers contain the record of a painful episode in his pre-Supreme
Court judicial career, when he yielded
to collegial
pressure and withdrew remarks indicating his personal opposition to the death
penalty.
His regret
was lasting; his parting statement on the issue - "From this day forward,
I no longer shall tinker with the machinery of death" - may have been a
long-delayed expiation.
At first a
skeptical bystander while the court wrestled with whether to expand
constitutional protection for women's rights - in his private notes, he
disparaged a brief filed in a sex discrimination case by Prof. Ruth Bader
Ginsburg as "filled with emotion" - he eventually enlisted in the
cause and expressed the hope that his work had contributed to "the
progress of the emancipation of women."
Although he
kept a journal of sorts and compiled sketchy notes for a memoir, which are
included in his papers, Justice Blackmun never settled on a narrative that
explained his own life. "I feel as though I have been a cork on a
fast-moving stream propelled by forces over which I had little control,"
he wrote in notes for a speech at the Aspen Institute in
Colorado
after his retirement.
Yet in that
same draft, he also suggested that in grappling with the ideas that came his
way, he had been something more than a passive participant in the education of
Harry Blackmun. "There is a broad education to be gained in constitutional
philosophy when one comes to the Supreme Court," he wrote.
Shaped by
Roe v. Wade
A political
scientist, Joseph F. Kobylka of Southern Methodist University, who has been
working on a biography of Justice Blackmun, sees Roe v. Wade as a catalyst for
many of the changes in Justice Blackmun's approach to issues. Their
correspondence and some of Professor Kobylka's draft chapters are among the
papers.
The effort
of defending the right to abortion in an increasingly hostile climate made
Justice Blackmun more sensitive to women's rights and to equality claims in
general, Professor Kobylka has written. Similarly, he argues, Roe v. Wade also
turned Justice Blackmun into a strong defender of free speech; his first
opinion for the court in the area of commercial speech, a landmark decision,
found First Amendment protection for a
Virginia
newspaper publisher who printed an advertisement for an abortion referral service
that was then illegal.
"He was
not a man with a generalized philosophy," Prof. Richard Epstein of the
University of Chicago said of Justice Blackmun. "He was an absolute
straight shooter who thought that hard work would get him to the right
place."
Among the
papers - contained in more than 1,500 boxes - are memos Justice Blackmun dictated to himself while
preparing to hear arguments, revealing his responses to the cases. He also took
notes at the justices' closed-door conferences after arguments and kept an
"opinion log" as cases moved through the decision-making process,
showing the court at work in real time. He even kept notes the justices passed
along the bench during arguments ("V.P. Agnew Just Resigned!! Mets 2 Reds
0.")
One of the
surprises in the papers is the revelation that Justice Kennedy changed his mind
midway through another major case in 1992. That case, Lee v. Weisman,
challenged the constitutionality of clergy-led prayers at public school
graduations.
Assigned by
Chief Justice Rehnquist to write the opinion for a 5-to-4 majority upholding
the prayers, Justice Kennedy informed Justice Blackmun, who was one of the four
dissenters, that after several months "my draft looked quite wrong."
His new draft, declaring the prayers unconstitutional, became the opinion for
the new 5-to-4 majority.
While
Justice Blackmun played an important role in the court's decisions on free
speech, religion, and federalism, research for this article focused on the
evolution of his views on abortion and the death penalty, the areas for which
he was best known.
His years on
the court spanned a tumultuous period. He arrived in June 1970; 16 years after
Brown v. Board of Education, the court was still dealing with the legacy of
segregation. The Bakke case and the subtleties of the debate on affirmative
action lay ahead. So did Watergate and its dramatic clash of presidential and
judicial power. So did recognition of sex discrimination as a constitutional
harm.
On the
court, the old liberal order was vanishing. Chief Justice Earl Warren had
retired a year earlier. Justice Hugo L. Black would be gone in little more than
a year, William O. Douglas in five. It would be more than two decades before a
Democratic president would have a chance to make a Supreme Court nomination.
By the time
he joined the court, the seat vacated by Justice Abe Fortas had been empty for
more than a year. Harry Blackmun was President Nixon's third choice, "Old
No. 3," as he liked to call himself.
At 61, with
11 years on a federal appeals court behind him, he was neither inexperienced
nor unsophisticated. But the transition was difficult, and an early incident
shook his confidence. He was laboring over some of his first dissenting
opinions when Justice Black complained that Justice Blackmun's failure to
deliver them was holding up the announcement of decisions in two cases.
"I
think it would not be inappropriate, without criticizing anyone on the Court,
to state that I believe we are further behind in handing down opinions at this
time of year than we have ever been since I became a justice, more than 33
years ago," the 84-year-old Black wrote on Jan. 11, 1971.
He
distributed his letter to the other justices. In an institution where ritual
politeness is the norm for internal communications, this was a stinging rebuke
from an iconic figure. He also misspelled his new colleague's name as
"Blackman." After the new justice replied defensively, Justice Black
backed off.
Confronting
Capital Punishment
A number of
death penalty cases were working their way toward the court, and as his second
term was barely under way, Justice Blackmun had to confront a question that
troubled him throughout his judicial career: how to reconcile his personal
opposition to capital punishment with his vision of the role of a judge. It was
to be the great challenge of his decades on the court, and he struggled over it
more than he did over abortion.
His papers
from his tenure on the United States Court of Appeals for the Eighth Circuit
tell of the first time he dealt with the issue. The case was Pope v. United
States, a murder case that had fascinated the Midwest. Duane Pope was not a hardened criminal but a
college football star, raised on a Kansas farm, who days after his graduation
robbed a bank and killed three people. All seven appeals court judges voted in
1967 to uphold his
conviction
and death sentence. The opinion fell to Judge Blackmun.
To his
draft, he added a concluding paragraph expressing doubt about the suitability
of the sentence and about capital punishment in general.
Perhaps
executive clemency would be appropriate, he said.
The
paragraph caused a stir inside the court. Two judges called it
"gratuitous." Judge Blackmun removed it, but he was deeply wounded.
"I strongly feel that the characterization by two of you that that
paragraph is `gratuitous' is unfair," he wrote. "The paragraph was
written out of a feeling of sincerity and conviction on my part."
The others
then took offense, with one suggesting that Justice Blackmun had accused him of
unfairness. The conflict passed after another judge intervened. But Justice
Blackmun was left with regret.
Seven months
later, he recounted the episode in a letter to his friend, Warren Burger.
"I continue to kick myself for withdrawing my comment about capital
punishment," he said. "In retrospect, I suppose it was expediency,
namely to avoid a hoedown on the court. Yet, I was right about it and one never
should compromise when one is right."
Now, on the
Supreme Court, he faced the issue again. "I am, of course, on record as
opposing the death penalty as a policy matter," he wrote in a 1972 memo to
himself as the court was preparing to rule that all existing death penalty laws
were unconstitutional. "I meant to say it in the Pope opinion for the
Eighth Circuit, but this was withdrawn by the urging of a majority of the
court." He still believed, as he wrote in his dissenting
opinion,
that the question was one for legislators rather than judges.
Four years
later, Justice Blackmun went along when the court reauthorized the death
penalty. By the mid-1980's, though, more and more appeals for last-minute stays
of execution were reaching the court. How to handle these requests became an
urgent matter in the summer of 1985 as Florida was preparing to execute Willie
Darden, convicted of robbing and murdering a furniture store owner.
Justice
Blackmun joined three others in providing the necessary four votes to hear Mr.
Darden's appeal. But a fifth vote, necessary to grant the stay, was lacking.
For a sickening few hours, plans moved along to execute someone whose appeal
the court deemed worthy of attention. With hours to spare, a reluctant Justice
Lewis F. Powell Jr. offered the fifth vote for a stay.
Justice
Blackmun's file documents the bitter clash that resulted. The next day, Justice
Powell called for a change in the court's rules to avoid what he called
manipulation in capital cases. It should take five justices, not the usual
"rule of four," to hear such an appeal, he said.
Justice
William J. Brennan Jr. countered that it should take only four, not the usual
five, to grant a stay of execution. As tempers and rhetoric became more heated,
Justice Rehnquist intervened. Perhaps the Darden case would prove unusual, he
said, adding that "I would prefer to wait and see what happens" in
future cases.
The court
did not change its rules, but the Darden case troubled Justice Blackmun. He
became a regular dissenter as the court upheld death sentences and supported
restrictions on access by state death-row inmates to federal court review.
Thanks From
Death Row
In the
summer of 1993, a law clerk suggested that the time had come to declare
publicly an "abolitionist position." In a memo that traced Justice
Blackmun's evolution on the issue, the clerk, Andrew Schapiro, wrote:
"Efforts to fine-tune the machinery of death cannot succeed."
With Justice
Blackmun's authorization, his clerks took on the project, not yet aware that it
would be his last term. They were looking for a suitable case, a death-sentence
appeal that a majority would predictably vote to deny. Justice Blackmun would
file the statement as a dissenting opinion.
After a
search of several months, the case the clerks selected was an appeal from a
Texas inmate, Bruce E. Callins, sentenced to death for killing a man in a bar.
Its very ordinariness commended it.
Adopting his
law clerks' language, Justice Blackmun delivered his denunciation of the death
penalty: Efforts to administer the death penalty fairly and consistently were
"doomed to failure," as the court would realize some day, he said,
adding: "I may not live to see that day, but I have faith that eventually
it will arrive."
After the
opinion was released on Feb. 21, 1994, a frail Justice Brennan, the passionate
death penalty opponent who had retired four years earlier, called to thank
Justice Blackmun for "the present."
A letter
arrived several months later, painstakingly printed on lined yellow paper.
"Dear Sir: I felt such a overpowering need to write you & thank you
for reaching the decision you did on my case," Mr. Callins began. "I
cannot imagine what you must have went through in reaching such a major
decision." He said he hoped that Justice Blackmun was "at peace within
yourself for doing as you did."
Mr. Callins
was executed by lethal injection three years later. His sister, Nadeline
Robinson, wrote to inform Justice Blackmun. "He had mentioned your name to
me with great respect for you as an individual," she said.
Although
abortion would prove to be a more troubling issue for the court as a whole, it
posed considerably less of a personal challenge for Justice Blackmun. After 10
years as general counsel to the Mayo Clinic, he viewed the laws that criminalized
abortion laws as many in the medical profession did: as a threat to good
medical practice, a public health problem that drove desperate women into
harm's way.
"Certainly
a good faith medical judgment must be a defense to any charge" under the District
of Columbia's criminal abortion statute, Justice Blackmun wrote in a memo to
himself as an early challenge to that law was pending.
The records
of Roe v. Wade itself, available in the papers of several other justices who
were on the court in 1973, have been mined by scholars.
While the
Blackmun papers illuminate his own role and offer some fascinating detail, they
do not change the basic narrative.
However, his files on the District of Columbia case shed new light on
Justice Blackmun's readiness, earlier than has been recognized, to embrace the
right to privacy as the foundation for the right to abortion. That case, United
States v. Vuitch, began as a challenge to the District of Columbia's criminal
abortion statute. It was decided in 1971 without addressing the ultimate
constitutional issue, and so has been largely forgotten in the long shadow that
Roe v. Wade cast.
As was his
habit, Justice Blackmun dictated a memo to himself while he was preparing to
hear the argument in the case. "Here we go in the abortion field," he
began, reflecting the justices' awareness that abortion cases were steadily
making their way to the court's door.
In the memo,
he reviewed the court's recent precedents establishing a right to privacy for
the use of birth control and the private possession of pornography.
These cases
"afford potent precedence in the privacy field," he wrote, adding:
"I may have to push myself a bit, but I would not be offended by the
extension of privacy concepts to the point presented in the present case."
In his final sentence, he said: "I think I could go along with any
reasonable interpretation of the problem on principles of privacy."
An Unhappy
Assignment
It is clear
from the Roe v. Wade file that the justices hadn't anticipated the firestorm to
come. After the retirements of Justices Black and John M. Harlan, the court was
two members short in the fall of 1971 when it was time to schedule Roe v. Wade
for argument. Chief Justice Burger appointed Justice Blackmun to a screening
committee to decide which cases could be argued as scheduled, and which were so
controversial that they should be held for a full court.
While Roe v.
Wade was a candidate for deferral, "we didn't set it aside," Justice
Blackmun recalled in the 1995 oral history that is part of his collected
papers. "I don't know why we didn't set it aside. I think probably the
implication, the obvious implication, is that we didn't think it was that
important at that time."
Following
the first argument, and after a vigorous internal debate, the court decided
that Roe v. Wade should be heard by nine justices. Justices Rehnquist and
Powell had joined the court by the time the case was reargued in October 1972.
Justice
Blackmun made notes to himself in connection with the justices' post-argument
conference. It is not clear whether they were his prepared talking points, or
whether he made them after the discussion. (The abbreviations he used are
rendered as complete words in this article.)
Clearly, the
atmosphere surrounding abortion had darkened over the summer. "It is not a happy assignment - will be
excoriated," he wrote.
He then
sketched his thoughts for the eventual opinion, in a format strikingly like the
final product. "The right to privacy as exemplified in the decided cases
here. This is broad enough to encompass the decision whether to terminate a
pregnancy. . . . But, despite the arguments, the right is not absolute. There
is a point at which another interest is involved - life or the potential of
life. . . . I avoid any determination as to when life begins. Therefore, a
balancing of interests."
The notes
end with these reflections on the likely impact of the decision:
"1. A
majority of state statutes go down the drain.
2. It will be an unsettled period for a
while.
3. But most state legislatures will be
meeting in `73.
4. Any point in withholding the mandate? To
4/1."
This last
point raised the prospect of delaying the ruling's effective date until the
following April to give states time to adjust.
By late
December, five justices - Powell, Brennan, Thurgood Marshall, Douglas, and
Potter Stewart - had joined Justice Blackmun's proposed opinion. Chief Justice
Burger had indicated he agreed but frustrated the others by delaying signing on
for another month. In his oral history, Justice Blackmun speculated that the
delay was designed to push the announcement of the decision past President
Nixon's second inauguration on
Jan. 20,
1973, so as not to upstage or embarrass the president. On Jan. 22, the ruling
was issued, with only Justices Byron R. White and Rehnquist dissenting.
In the
deadpan style he used in a running "chronology of significant events"
he maintained throughout his years on the court, he recorded the ruling.
"Abortion decision down - L.B.J. dies," he wrote for Jan. 22. The
next day, reflecting official Catholic reaction, he wrote: "abortion flak
- 3 Cardinals - Vatican - Rochester wires!" The last item referred to a
telegram sent by the Mayo Clinic.
The ruling
was to change his life and galvanize the country. He received thousands of
angry letters, so many that the library kept only a small sample.
From 1973
on, Justice Blackmun dedicated himself to preserving Roe v. Wade as the
comfortable 7-to-2 majority dwindled. He was wary when Justices Sandra Day
O'Connor, Anthony Kennedy and David Souter arrived on the court, worried that
they would ultimately overturn the right to abortion. When he lost cases, he
wrote furious dissents in a deeply personal style, the evolution of which the
papers document.
As it turned
out in the Planned Parenthood v. Casey decision, it was that new generation of
justices who made the right secure. In
his oral history, conducted by one of his former law clerks, Prof. Harold
Hongju Koh of Yale Law School, Justice Blackmun pronounced himself content with
his role in defending the right to abortion and satisfied that Casey had
preserved it.
At the end
of the interviews, Professor Koh asked whether writing Roe v. Wade "was a
piece of good luck or bad luck." He had wondered about that himself,
Justice Blackmun replied. Then the 87-year-old retired justice said: "For
me personally it probably was a matter of more good luck than bad. I think one
grows in controversy."
Research
assistance for this article was provided by Francis J. Lorson and Stephanie K.
Wood.
* * * * *
The
following article appeared in the Los Angeles Times (on-line edition) on March
2, 2004:
Bryant
Defense Goes on Offense
By Steve
Henson, Times Staff Writer
EAGLE, Colo
- Kobe Bryant's attorneys went on the offensive Monday, making controversial
allegations about the sexual activity of the woman who has accused the Laker
star of rape.
The defense
claimed during a pretrial hearing and in a court filing that the woman has had
sex with two prosecution witnesses and that she also had intercourse only hours
after her encounter with Bryant.
Defense
attorney Hal Haddon told Judge Terry Ruckriegle that swabs of semen taken from
the neck, thigh and vaginal area of the 19-year-old accuser during an
examination 15 hours after the alleged rape were from a man other than Bryant.
Eagle County
Dist. Atty. Mark Hurlbert objected to the comment, prompting an extended
private conversation between the judge and attorneys. Haddon did not mention
the woman's sexual conduct again, but in a court document filed over the
weekend and made public Monday while court was in session he offered several
reasons why it is relevant and should be an exception to the rape-shield law.
Prosecutors
say that the woman's sexual past is not relevant to whether she was raped and
that it should not be allowed to be a topic at trial.
The woman
says she was assaulted on the night of June 30 at the Edwards, Colo., resort
where she worked. Bryant, 25, says they had consensual sex. He faces four years
to life in prison or 20 years to life on probation, if convicted.
The woman
had been scheduled to testify today, during her first appearance in court.
Early Monday, Ruckriegle denied a motion by the prosecution to limit defense
questioning of the woman. But after the lunch recess the judge rescinded that
decision.
It was not
entirely clear why the judge had a change of heart, but some observers
suggested he might have taken exception to Haddon's written motion. Acting on a
request from Hurlbert, Ruckriegle said he would take the motion under
advisement and postponed the woman's testimony until at least March 24, the
date of the next scheduled hearing.
Haddon's
filing reiterated earlier descriptions of defense strategy and added details
based on new evidence. He said testing of physical evidence from the rape kit
by the Colorado Bureau of Investigation last week revealed the semen from an
unidentified man.
In addition,
Haddon said the defense had established:
·
Evidence
that the accuser engaged in multiple acts of sexual intercourse within the two
days preceding her encounter with Bryant as well as within 15 hours afterward.
·
There is
"factual similarity" between the woman's sexual acts with other men
and the circumstances of her intercourse with Bryant. The acts also show the
"accuser's knowledge, intent, common plan, pattern and modus operandi with
respect to whether she consented to having sex with Bryant," the defense
said.
·
There is
evidence that the woman had sexual relationships with two prosecution
witnesses. A source close to the prosecution said the men are the woman's
ex-boyfriend, Matt Herr, and hotel bellman Bobby Pietrack. The woman called
Herr on her cellphone while driving home from her encounter with Bryant.
Pietrack followed her home in his car.
The sexual
history between the woman and those witnesses is relevant to their credibility,
Haddon said. Pietrack's testimony is especially important because he is the
first person the woman spoke to after leaving Bryant's hotel room.
Haddon also
said that evidence of sexual conduct soon after the alleged rape should be
admissible to rebut a contention by prosecutors that the woman was diagnosed
with post-traumatic stress disorder.
The defense contends
that the woman schemed to have sex with Bryant to attract attention from an
ex-boyfriend - probably Herr, whom she dated for two years. The woman overdosed
on pills in February and May 2003 in purported suicide attempts, which Bryant's
attorneys characterize as attention-getting acts.
Some
observers were appalled that the defense made such strong allegations in court
and in writing.
"I'm
seeing once again the defense throwing out information we don't know is true
just to discredit the victim in the court of public opinion," said Cindy
Stone, spokeswoman for the Colorado Coalition Against Sexual Assault.
Haddon's
mention of another man's semen came during the first hearing of the day.
Hurlbert argued unsuccessfully that prosecutors were not required to provide
the defense with two pairs of underwear worn by the woman the night of the
alleged sexual assault and during the rape examination.
After
testimony from defense expert Dr. Elizabeth Johnson, Ruckriegle ordered Hulbert
to turn over the underwear within 24 hours and for the defense to return it by
April 30.
Ruckriegle
also chastised Hurlbert when the prosecutor said he had not handed over the
underwear because an earlier order by the judge was unclear. It did not appear
that Hurlbert scored points with the judge at any juncture of the open portion
of the proceeding.
One bright
spot for prosecutors came when Bryant bodyguard Troy Laster testified during
part of a hearing on whether statements Bryant made to investigators July 1
should be suppressed because he was not read his Miranda rights.
Laster, an
off-duty LAPD officer, did not have a clear recollection of many details, and
his testimony did not appear to help Bryant's assertion that he believed he was
in custody at the time of the interrogation.
A portion of
the suppression hearing was conducted after lunch in closed session and it
should be completed today.
A hearing on
whether the defense should gain access to the woman's medical records was
concluded in closed court. Testimony was taken from an Eagle County detective
and Johnray Strickland, another ex-boyfriend of the alleged victim, and
Ruckriegle will issue a written decision.
Ruckriegle
also will make a decision on whether upcoming hearings on the admissibility of
the woman's medical and mental health records and of her alleged drug and
alcohol use will be conducted in closed court.
* * * * *
The
following article appeared in the Washington Post (on-line edition) on March 1,
2004:
For
Lawyer, This Case Is Personal
By Charles Lane
For any
lawyer, an oral argument before the U.S. Supreme Court is the professional
opportunity of a lifetime. But for E. Randol Schoenberg, a 37-year-old lawyer
from Los Angeles, his appearance in a case argued last Wednesday was a family
milestone as well.
Schoenberg
represents Maria Altmann, 88, in her bid to recover six near-priceless Gustav
Klimt paintings that once belonged to her wealthy Viennese Jewish family -- but
that have been hanging in the state-run Austrian National Gallery since Nazi officials
ran Altmann's ancestors out of Vienna and took the paintings.
The only
issue before the court in Austria v. Altmann, No. 03-13, the first Supreme
Court case involving art allegedly looted from Jews by the Nazis, is whether a
U.S. federal court has jurisdiction to hear claims such as Altmann's against
foreign governments.
For
Schoenberg, though, the case is also about keeping faith with his own Austrian
Jewish grandfathers, composer Arnold Schoenberg, exiled from Europe in
the 1930s,
and composer Eric Zeisl, a close friend of Altmann's late husband
Fritz.
"That's
why I am doing the case," Schoenberg said in an interview. "It
affects me, too. It seems so obvious to me, someone who's grown up in an
Austrian Jewish exile family, that no one who grew up with this would want
anything to do with the Austrian gallery."
Not
surprisingly, Schoenberg's opponents in the case see it differently. Austria
argues that its possession of the Klimts is the legal fulfillment of wishes
expressed by Altmann's aunt, Adele Bloch-Bauer, shortly before her death in
1925. Her will asked her husband, Ferdinand, an industrialist and art
collector, to give the paintings to the Austrian gallery upon his death, and in
1925 Ferdinand said he would comply.
"This
is not a Holocaust restitution case," said Eva Nowotny, Austria's
ambassador to the United States. "It's a dispute about the legality of a
will. From the Austrian perspective, this case was settled long ago."
But
Schoenberg notes that Ferdinand was forced to leave Vienna soon after the
German annexation of Austria in March 1938. While he was in Swiss exile, Nazi
lawyers seized the paintings and Bloch-Bauer's other property. In 1941, a Nazi
lawyer awarded the Klimts to the gallery in a letter signed "Heil Hitler."
That same year, Ferdinand wrote a letter expressing not satisfaction that his
wife's will was being carried out but frustration that the paintings had been
lost.
Ferdinand
rewrote his will before he died in exile in 1945. It awarded all of his
property to his brother's children, including Maria Altmann -- who made it to
the United States via England and became a citizen.
After the
war, a new Austrian government promised restitution to Jews. But, in 1948,
Austrian officials induced a Bloch-Bauer family lawyer to sign over the Klimts
to the gallery, in exchange for the release of their other property -- a
transaction of the kind modern Austria has since declared null and void.
Citing the
1925 will, Austrian officials say the new rule does not apply to the case of the
Altmann Klimts, which are thought to be worth more than $130 million.
It was not
until 1999, when investigations by the Austrian media cast doubt on the
provenance of the Klimts -- including the shimmering portrait "Adele
Bloch-Bauer I," one of the most popular in the Austrian National Gallery
-- that Altmann realized the paintings might not have been legally transferred.
She tried to sue in Austrian court, but switched to the United States after
Austrian authorities sought to impose hundreds of thousands of dollars in court
fees.
Schoenberg
has devoted most of the past five years to the effort to recover the paintings
-- delving into Austrian probate law, battling Austrian officials in court and
in the media, and, last Wednesday, standing before the Supreme Court, telling
the justices that giving Altmann a chance to win back her paintings in a U.S.
court would not impinge on the executive branch's foreign policy prerogatives,
or unfairly disrupt Austria's settled legal expectations, as Austria argues.
A federal
district judge in California and the San Francisco-based U.S. Court of Appeals
for the 9th Circuit have agreed with him. But, at the Supreme Court, Austria is
supported by the Bush administration, which takes no position on the dispute
over the paintings, but fears a flood of World War II property claims. Japan
and the French national railroad, which both face pending lawsuits related to
World War II human rights violations, also filed friend of the court briefs on
Austria's side.
After a
scandal over other Nazi-expropriated art in 1998, Austria passed a law that
actually returned much art to Jews, including Altmann. Austria has also
complied with U.S.-brokered agreements providing hundreds of millions of
dollars to victims of Nazi forced labor practices.
But, in
Schoenberg's view, that only makes it more difficult to understand why
the
Austrians continue to fight for the Klimts, given that Vienna could have bought
itself additional goodwill by negotiating a settlement with Altmann.
"It's
the third generation," he said. "The Nazi generation does the taking.
After the war, it's the next generation that does the fraud and the
withholding. And now it's the next generation, and that's what is so
disappointing. They should know better by now."
Yet, in the
Austrian government, Schoenberg has met an opponent as determined as he is.
"It's a
case of principle," Nowotny said. "Do you go back behind the
Holocaust and use the Holocaust to renegotiate something that was transacted
long before? We felt this is a case where we should stick to the principle of
it."
The Supreme
Court’s ruling is due by July.
* * * * *
The
following article appeared in The Guardian (on-line edition) on March 1, 2004:
A
risky libel defence
The danger
of journalists using unidentified sources has once again been highlighted in
the high court.
by Siobain
Butterworth
Mohammed
Abdul Latif Jameel, a wealthy businessman, flew into London last December on a
private jet for a libel action against the Wall Street Journal. He left the
high court three weeks later with £30,000 in his pocket and £10,000 for his
company. The lawyers, it is safe to say, made greater financial gains. The
Jameel case is a paradigm of libel tourism - a Saudi Arabian resident and a
Saudi Arabian company suing an American newspaper, published in Europe, in the
English high court. The Wall Street Journal did not claim that what it had
published was true, instead it argued that the article was protected by a
public-interest defence known as Reynolds privilege. The newspaper got an
unequivocal thumbs down from both judge and jury and, not for the first time,
Reynolds privilege proved to be a chimera.
The House of
Lords' decision in the Reynolds libel case in 1999 has seeped into the
collective legal consciousness, appearing in judgments about privacy,
confidence, disclosure of sources and, as the Hutton report showed, even
finding its way into government inquiries. Reynolds is the most libertarian
judgment in recent years in its recognition of the important role the press
plays in a democracy. The lexicon of Reynolds is frequently used, but what has
been its legacy? The Jameel case shows that there are inherent difficulties in
the defence.
In Reynolds,
the House of Lords recognised that libel laws should be applied in such a way
that they do not impose unnecessary restrictions on freedom of expression. They
took the view that defamation law did not need a radical overhaul to achieve
this because the common law had already developed the "duty/interest"
test (which Lord Nicholls preferred to call the "right to know" test)
to protect speech in certain circumstances. The test is whether the defendant
had a social or moral duty to communicate information and whether the public
had a corresponding interest in receiving it. Lord Nicholls saw that the
disadvantage of this approach is that the press cannot predict the legal
consequences of publication and so he produced guidelines for responsible
journalism in the form of 10 factors to be taken into account when deciding whether
a media defendant has passed the duty/interest test. The Nicholls factors
include: the seriousness of the allegation; the extent to which the subject
matter is of public concern; the source of the information; its status;
urgency; whether comment was sought; and whether the article contained the gist
of the claimant's side of the story.
In Jameel,
the Wall Street Journal reported that a Saudi Arabian company was one of a
number of organisations being monitored at the request of US law enforcement agencies,
to prevent them being used, wittingly or unwittingly, for the funnelling of
funds to terrorist organisations. This turned out to be untrue. The defendant
relied on the fact that the information had come from confidential sources who
did not want to be identified. The claimants were allowed to rebut the Reynolds
privilege defence by calling witness evidence attacking the journalist's case
about the information he had received from his sources - this was a novel legal
development.
In a
pre-trial ruling the court of appeal held that although the claimants could not
bring evidence to show that the sources were unreliable, they could call
witness evidence to show that there was no truth in the information and that
the sources were unlikely to have told the journalist what he said he was told
or he was mistaken in his understanding.
Lord Justice
Simon Brown issued this warning: "...journalists for their part should be
circumspect about referring to the quality of their anonymous sources lest they
thereby seek an untoward advantage in litigation".
In the
witness box the journalist accepted that the first source was actually a lead
and that he would not have relied on that information alone. Unfortunately for
the newspaper, the jury's answers to other questions made it clear that they
did not accept that the remaining four anonymous sources had confirmed the
information from the first source. The approach taken by the trial judge to the
Nicholls factors gives media defendants cause for concern. As far as the first
Nicholls factor was concerned - the seriousness of the allegation - Mr Justice
Eady took the view that the gravity of the allegations "permeates through
and affects most, if not all, of the other tests".
The comment
that news is a perishable commodity is often argued in favour of media
defendants and was included by Nicholls in relation to urgency, his sixth
factor, but in Jameel, this point was used against the press. The court said
that the need to be kept up to date should not be confused with the commercial
imperatives of the newspaper. In his legal analysis of whether Reynolds
privilege applied in this case, Mr Justice Eady appeared to take into
consideration an 11th factor when deciding that the "right to know"
test had not been satisfied.
This new
factor, derived from comments made by Lord Nicholls in Reynolds, was that the
value of the information to the public depends on its content and quality. He
was critical of the newspaper for naming names when the US government had given
an undertaking that names would not be disclosed. He considered that it was
neither urgent nor appropriate for the newspaper to have named the claimant,
remarking that it was doubtful whether the public interest would be served by
"blowing the gaff", on a government monitoring operation. His
approach to status, the fifth Nicholls factor, was also novel; in previous
judgments this factor has been neutral where there has been no previous
investigation, but in the Jameel case it weighed in the balance against the newspaper.
Mr Justice Eady said that he could see no reason why the public needed to know
names.
The Jameel
case illustrates how hard it is for a media publisher to succeed in a Reynolds
privilege defence when it is relying on unidentified sources. In these cases
Reynolds privilege should perhaps be seen as an umbrella which a journalist may
struggle to open out when an allegation he has published turns out to be either
untrue or impossible to prove - and which is easily blown inside out and
rendered a useless form of protection.
* * * * *
The
following article appeared in the Washington Post (on-line edition) on February
28, 2004:
FBI's
Discipline Practices Flawed, New Report Says
Associated
Press
The FBI has
a deeply flawed process for disciplining employees that leads to perceptions of
favoritism and unfairness and is run by an office characterized by some as a
snake pit that fails to attract top people, according to an independent review
released yesterday.
The 70-page
study of the FBI's Office of Professional Responsibility (OPR)concluded that
morale suffers throughout the bureau because of a feeling among agents that
managers are treated better in disciplinary cases than are rank-and-file
employees.
Although the
review could not find evidence of a systemic disparity, it concluded that
"the perception itself has had an enormous adverse impact" on the
agency.
The inquiry
was conducted by Wick Sollers, a lawyer with the Atlanta-based law firm King
& Spalding; another of the firm's partners, former attorney general Griffin
Bell ; and former top FBI executive Lee Colwell. It was requested by FBI
Director Robert S. Mueller III to deal with misgivings about the OPR raised in
another internal Justice Department report. That review came after FBI agent John
Roberts, in an October 2002 appearance on CBS's "60 Minutes," made
allegations about a double standard in discipline.
Roberts
resigned from the FBI effective yesterday, in part because he felt that the
independent report glossed over deep-seated problems in the disciplinary
system, said his attorney, Stephen M. Kohn.
The latest
review found numerous factors that contributed to perceptions of unfairness in
employee discipline, including a "vague, incomplete and deeply
flawed" system of punishment guidelines; a blurring of the policy of
firing anyone for lying, cheating or stealing; and the greater likelihood that
senior FBI managers are allowed to resign when under investigation rather than
be terminated.
* * * * *
The
following article appeared in The New York Times (on-line edition) on February
29, 2004:
OVERCOMPENSATING
In
Fraud Cases, Guilt Can Be Skin Deep
by Alex
Berenson
THE new wave
of corporate fraud trials was supposed to be about systemic problems with the
way American companies are run. The trials were supposed to be about the
collapse of accounting standards and the way huge stock option grants can
corrupt executives.
Instead
prosecutors have spent a lot of courtroom time talking about perks and
obstruction of justice - about floral arrangements and hotel bills run up by
the indicted executives, as well as whether they lied to prosecutors or federal
investigators.
In the trial
of L. Dennis Kozlowski, the former chairman of Tyco International who is
accused of looting his company, prosecutors have repeatedly presented evidence
of perks received by the defendant, even when the benefits seem only
tangentially related to the charges at hand.
The trial of John J. Rigas, the founder of
Adelphia Communications, and his sons Timothy and Michael, which began last
week, appears set to follow a similar tack. Prosecutors are preparing to
present evidence about safari vacations and a $13 million golf course allegedly
paid for out of corporate funds.
Meanwhile,
federal prosecutors investigating Computer Associates, the Long Island software
giant, have focused on alleged lies that executives told to prosecutors, not
the accounting chicanery that Computer Associates allegedly used to inflate its
profits.
Prosecutors
have good tactical reasons for making these trials more about executive greed
or obstruction of justice than about accounting or securities fraud, securities
lawyers say. White-collar crime cases are often difficult to prove, as
prosecutors learned again Friday when the judge in the Martha Stewart case
dismissed a securities fraud charge against Ms. Stewart that was at the core of
the indictment against her.
So
prosecutors look for every possible way to simplify the cases for jurors - and
to make defendants look bad.
Evidence of
defendants' lavish lifestyles is often used to provide a motive for fraud.
Jurors sometimes wonder why an executive making tens of millions of dollars
would cheat to make even more. Evidence of habitual gluttony helps provide the
answer.
"You're
trying to make the case that this individual is greedy, should not be viewed as
credible, is only out for himself,'' said Joel Seligman, dean of the Washington
University School of Law. "It does have a kind of relevance.''
But
prosecutors have other reasons for introducing evidence of extravagant
spending. Because the details of the fraud charges can be so difficult to
understand, jurors' decisions may ultimately turn on their personal impressions
of the indicted executives.
"It's a
lot more interesting to show the tape of Jimmy Buffett playing in the
background and people walking around nude and drunk than to show the dry
accounting evidence,'' said James Cox, a professor of corporate and securities
law at Duke University, in reference to a videotape played by prosecutors in
the Tyco trial about a birthday party for Mr. Kozlowski's wife, Karen. Tyco
paid $1 million, about half the cost, for the party.
"The
trial is partly about what the rules are, but a lot about what the defendant is,''
Mr. Cox said.
A classic
example of that principle came in 1989, when Leona Helmsley, the Manhattan
hotelier, was convicted of tax fraud and sentenced to four years in federal
prison after a trial in which she was portrayed as cruel and unfeeling.
The trial's
signature line came when a housekeeper told the jury that Ms. Helmsley had
said, "Only the little people pay taxes.'' In an editorial about the case,
The New York Times wrote that the housekeeper's testimony "probably
explains why Mrs. Helmsley made so many enemies and why the I.R.S. finds her a
suitable example."
The reliance
of prosecutors on obstruction of justice charges also arises in part from fears
that juries may not understand accounting frauds, said Robert A. Mintz, a
former federal prosecutor and the head of white-collar criminal defense
practice at McCarter & English. Obstruction cases, which are relatively
easy to prove, offer a sort of insurance policy, he said.
"These
complex financial cases are extremely difficult,'' Mr. Mintz said. "The
government has to be wary of bringing charges in a very high-profile
prosecution and then suffering a staggering defeat.''
There is one
major exception.
In the case
of Enron - the largest fraud investigation to come out of the stock market bust
of 2001 and 2002 - prosecutors seem to be focusing squarely on accounting
chicanery rather than on tangential issues. The 57-page indictment earlier this
month of Richard A. Causey, Enron's former chief accounting officer, and
Jeffrey K. Skilling, its former chief
executive,
makes no mention of $6,000 shower curtains or $17,000 visits to Mexico - both
of which featured prominently in the Kozlowski and Stewart cases.
Instead, it
outlines several complex accounting schemes that prosecutors say the executives
used to inflate Enron's stock price while selling their shares in the company.
By zeroing
in on actual accounting issues, prosecutors in the Enron trial may have made
their job more difficult, lawyers say, but they have increased the importance
of their case.
Already,
Enron is in a class by itself as an example of corporate malfeasance. The
company and its executives have come to symbolize the excesses of the 1990's
stock market boom. While seven former Enron officials have pleaded guilty to
various crimes so far, no jury has had to decide whether widespread accounting
gimmicky crossed the line into fraud.
In that
sense, the Enron case echoes that of Drexel Burnham Lambert and Michael Milken,
whose rise and fall came to symbolize the perceived excesses of Wall Street in
the 1980's. Mr. Milken served two years in prison after pleading guilty to six
minor violations of securities laws.
But he never
faced a jury, and a debate still festers over whether he actually did anything
wrong or was merely a scapegoat for public anger.
If Enron
prosecutors agree to a plea bargain on relatively minor charges with Mr.
Skilling and Mr. Causey, history's verdict on the Enron scandal will be
similarly cloudy. But with both sides seemingly intent on going to trial, a
jury may finally have a chance to render a verdict on the government's ability
to hold executives criminally responsible for financial malfeasance.
"In a
strange way, the public is ill-served when all of the defendants plead guilty
and the theories of the government are never put to the test," Mr. Mintz
said. "At some point, it can't be all about process. It has to be about
substance. In order to justify the enormous resources that have been committed
to these cases, there has to be a day of reckoning for the government. They
have to put it all on the line and gain a shot at gaining a criminal
conviction.''