Some months ago Ninth Circuit Judge Alex Kozinski wrote an important piece talking about the many way criminal prosecutions are not fair. A lot of it focused on the imperfect process behind key ingredients of prosecutions — eye witness testimony, fingerprint analysis, plea deals. But he also reprised his argument that we’ve seen an epidemic of Brady violations in recent years.
The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction.38 It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave—principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police.39 There is reason to doubt that prosecutors comply with these obligations fully. The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material.40 This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material, which runs contrary to the philosophy of the Brady/Giglio line of cases and increases the risk that highly exculpatory evidence will be suppressed. Beyond that, we have what I have described elsewhere as an “epidemic of Brady violations abroad in the land,”41 a phrase that has caused much controversy but brought about little change in the way prosecutors operate in the United States.
As Zoe Tillman writes, the DOJ is rolling out an effort to tell itself that the mean things said by a top Appellate judge aren’t true. Deputy Attorney General Sally Yates is going to give a speech telling prosecutors not to listen to that mean bully.
Deputy Attorney General Sally Yates on Tuesday is expected to deliver a rallying speech to a meeting of prosecutors that is a further response—albeit indirect—to Kozinski’s article.
Yates will say that the “overwhelming majority” of prosecutors honor their legal and ethical obligations, including the requirement that they turn over potentially favorable information to defense lawyers, according to a copy of her prepared remarks.
Yates’ planned remarks criticize defense lawyers who make allegations of prosecutorial misconduct “a standard litigation strategy,” and others who “irresponsibly” make misconduct allegations.
“Prosecutors are in these jobs because we care about our solemn obligation to seek justice, and when someone unfairly impugns that commitment, it strikes at the core of who we are,” Yates, who will speak at the National Prosecution Summit in Washington, is expected to say.
And the Associate Deputy Attorney General Andrew Goldsmith and U.S. Attorney John Walsh of Colorado wrote this letter, attempting to rebut that mean bully.
On its face, the entire effort is farcical. In recent years, DOJ has rewarded lawyers who helped it get away with misconduct. It failed, for years to give proper notice of Section 702 surveillance to defendants, and still hasn’t corrected the record with the Supreme Court about its false claim that it had been doing so. And until this summer, David Margolis served as an unwavering shield against DOJ actually disciplining its own.
But the funniest part of DOJ’s pushback is this paragraph from Goldsmith and Walsh’s letter.
On several occasions, Judge Kozinski referenced the prosecution of former senator Ted Stevens. The Stevens case, as others have noted, involved significant discovery failures and deserves to be held up as an object lesson to prosecutors. But the Department’s efforts in the aftermath of that case also deserve discussion. One of Eric Holder’s first acts after his swearing in as Attorney General was to seek dismissal of the conviction. In the months that followed, the Department undertook a sweeping review of its discovery-related procedures and instituted a string of new policies. All federal prosecutors, regardless of experience level, are now required to attend annual discovery trainings, while new prosecutors must attend rigorous, multi-day “discovery boot camps.” The Department developed a series of new policies governing the collection and disclosure of electronically stored information. And the Department established an extensive infrastructure of experienced prosecutors to focus on discovery issues, including a full-time national criminal discovery coordinator (who reports directly to the Deputy Attorney General, second only to the Attorney General herself at the Department of Justice) and discovery coordinators at each of the 93 U.S. Attorney’s Offices across the country.
That mean bully Alex Kozinski was wrong to bring up the time DOJ engaged in willful prosecutorial misconduct even of one of the most powerful men in the country, they say, because when caught doing so DOJ rolled out a system to try to prevent that from happening again.
Except that’s not all DOJ did. First, it went to great lengths to hide the independent review of its actions — a review which showed fairly rampant abuse. Then, when it conducted its own discipline of those who engaged in that abuse, it not only focused on the lower level prosecutors, but it also did nothing more than slap their wrists.
A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.
DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either prosecutor acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation.
Again, the Stevens case is a picture of what happens when prosecutorial misconduct is wielded against a very powerful white man — someone far more protected from abuse than the average federal defendant — and this is how things ended up, with a wrist-slap.
Maybe under her tenure, Yates plans to change this. Or maybe she just wants prosecutors not to worry too much about that bully in the Ninth.
But she needs to prove her intent through actions, not words, and thus far there’s little sign of those actions.
Update: Patrick Toomey also reminds me that DOJ the National Association of Criminal Defense Lawyers has been trying to get DOJ to share its guidelines on Brady, but thus far they’ve refused to give it over. NACDL has now appealed that to the DC Circuit.
Periodically, Jim Comey invites a group of select journalists in for lunch and eats them alive with his charisma and unsubstantiated claims. The first I noticed came when Comey made some false claims about National Security Letters, without a single journalist correcting him. More recently, Comey claimed FBI had arrested 10 people with ties to ISIS, only two of whom have every publicly appeared.
In this week’s edition, Comey got passionate about a claimed spike in crime.
And in unusually passionate remarks, the FBI director said he was “very concerned about what’s going on now with violent crime and murder rates across the country,” in cities as disparate as Omaha and Milwaukee.
At least in this instance, journalists are getting less credulous, because most (though not CNN) reported that in fact the crime stats released this week show a decline in crime, not a spike, even while they reported that violent crime in “many” cities has spiked.
Newly released federal data suggest a slight dip in violence across the nation in 2014. But Comey said those numbers may not be capturing what’s happening on the ground today. He’s been hearing similar concerns from police chiefs, he said.
Earlier this week, the FBI released data showing violent crime dropped slightly in 2014, but many big city police departments have reported significant jumps in shootings this year compared with last year.
In 2014, the number [of murders in NYC] had dropped to 328 — the lowest number of murders since the New York City Police Department began collecting statistics in 1963.)
None I saw, however, pointed out that the claim of a spike in “many” cities stems from a persistent propaganda effort that has been debunked as cherry-picking. Yes, there are a few cities with alarming spikes in violence, but they should be examined as cities, not as a trend that the FBI’s own data shows is moving in the opposite direction.
In his comments, Comey didn’t endorse the Ferguson effect. But he did say we need to move slowly on criminal justice reform both because of this alleged spike and because crime has gone down (!?!). Still from the HuffPo:
Comey said he didn’t know whether protests against police violence have made it harder for police to do their jobs, a theory that has been dubbed the “Ferguson effect.” “I’m not discounting it, but I just don’t know,” he said, adding that he was “focused on it, trying to figure it out.”
“Some have said police officers aren’t getting out of their cars and talking to gang-bangers on street corners anymore, but I don’t know,” he said. “What I do know is that a whole lot of people are dying. They are, according to the chiefs, overwhelmingly people of color, and we’ve got to care about that.”
The spike in crime made him want to be “thoughtful” on criminal justice reform, Comey added.
“My strong sense is that a significant portion of the change in our world since I was a prosecutor in New York in 1987 is due to law enforcement, but I’m sure there are lots of other things [going on],” he said.
“I just want to make sure that as we reform — first of all, we’re grateful that we actually have the space and time to think and talk about sentencing better, rehabilitating better, and [that] is a product of hard work over the past 25 years — but as we do it, are very, very thoughtful about where we used to be and how we got from that point to here,” Comey said.
As with encryption back doors, the data is not there (on that issue, DOJ simply doesn’t collect data on how often encryption prevents it from accessing data). But that’s not going to stop him from cautioning against criminal justice reform.
A few weeks back, I noted that Office of Legal Counsel had finally released its opinion on whether DOJ had to share everything its Inspector General requested, or could hold things (and investigations) up until the Deputy Attorney General decided such disclosure would be in the interest of DOJ.
OLC ruled against the Inspector General, finding that rules limiting dissemination of wiretap, grand jury, and financial data required DOJ’s preferred arrangement, even given Congress’ recent appropriations instructions to give Inspectors General what they need.
Senators Chuck Grassley and Ron Johnson and Congressmen Bob Goodlatte and John Conyers expressed concern about the opinion when it was released. Grassley now has a hearing — titled “‘All’ Means All: The Justice Department’s Failure to Comply with Its Legal Obligation to Ensure Inspector General Access to All Records Needed for Independent Oversight” — tomorrow to address the issue.
In anticipation of that hearing, the Inspectors General have brought out the big guns.
First, retired Senator and space hero wrote a letter, reminding that the intent when he and others in Congress passed the Inspector General act in 1978, they intended IGs to get access to everything.
The success of the IG Act is rooted in the principles on which the Act is grounded–independence, direct reporting to Congress, dedicated staff and resources, unrestricted access to agency records, subpoena power, special protections for agency employees who cooperate with the IG, and the ability to refer criminal matters to the Department of Justice without clearing such referrals through the agency. We considered these safeguards to be vital when we developed the Act and they remain essential today.
In addition, yesterday the Council of the Inspectors General on Integrity and Efficiency sent a letter to Ron Johnson, Tom Carper, Jason Chaffetz, and Elijah Cummings asking for immediate legislation to fix the problem created by the OLC memo. In addition to expressing concern about the impact of the memo for DOJ’s Inspector General (that IG, Michael Horowitz, is Chair of CIGIE, so that’s sort of him reiterating his concerns), the other agency IG’s worried that the memo might affect their ability to conduct their own work, as well.
The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work. Even absent this opinion, agencies such as the Peace Corps and the U.S. Chemical Safety and Hazard Investigation Board (CSB) have restricted or denied their OIGs access to agency records on claims of common law privileges or assertions that other laws prohibit access.
Uncertainty about the legal authority of Inspectors General to access all information in an agency’s possession could also negatively affect interactions between the staffs of the Offices of Inspector General and the agencies they oversee. Prior to this opinion, agency personnel could be confident, given the clear language of Section 6(a) of the IG Act, that they were required to and should share information openly with Inspector General staff, and typically they did so without reservation or delay. This led to increased candor during interviews, greater efficiency of investigations and other reviews, and earlier and more effective detection and resolution of waste, fraud, and abuse within Federal agencies. We are concerned that witnesses and other agency personnel, faced with uncertainty regarding the applicability of the OLC opinion to other records and situations, may now be less forthcoming and fearful of being accused of improperly divulging information. Such a shift in mindset also could deter whistleblowers from directly providing information about waste, fraud, abuse, or mismanagement to Inspectors General because of concern that the agency may later claim that the disclosure was improper and use that decision to retaliate against the whistleblower.
Neither FBI Director Jim Comey nor Deputy Attorney General Sally Yates are appearing at tomorrow’s hearing. FBI Associate Deputy Director Kevin Perkins and Associate Deputy Attorney General Carlos Uriarte have pulled the unpleasant duty of appearing on a panel with Horowitz. But I imagine Grassley intends tomorrow’s hearing to be rather aggressive.
For over a year, DOJ’s Inspector General has been trying to ensure it got ready access to things like grand jury materials (this has been pertinent in the Fast and Furious investigation and how DEA and FBI use the latter’s dragnet, among other things). As part of this effort, the IG asked OLC to weigh in on whether it should be able to access this information, or whether it needed to ask nicely, as it has been forced to do.
Here’s the opinion. Here’s the key passage:
In particular, Title III permits Department officials to disclose to OIG the contents of intercepted communications when doing so could aid the disclosing official or OIG in the performance of their duties related to law enforcement, including duties related to Department leadership’s supervision of law enforcement activities on a programmatic or policy basis. Rule 6(e) permits disclosure of grand jury materials to OIG if a qualifying attorney determines that such disclosure could assist her in the performance of her criminal law enforcement duties, including any supervisory law enforcement duties she may have. And FCRA permits the FBI to disclose to OIG consumer information obtained pursuant to section 626 if such disclosure could assist in the approval or conduct of foreign counterintelligence investigations, including in the supervision of such investigations on a programmatic or policy basis. In our view, however, Title III and Rule 6(e) forbid disclosures that have either an attenuated or no connection with the conduct of the Department’s criminal law enforcement programs or operations, and section 626 of FCRA forbids disclosures that have either an attenuated or no connection with the approval or conduct of foreign counterintelligence investigations.
And here’s OIG’s response.
Today’s opinion by the OLC undermines the OIG’s independence, which is a hallmark of the Inspector General system and is essential to carrying out the OIG’s oversight responsibilities under the Inspector General Act. The OLC’s opinion restricts the OIG’s ability to independently access all records in the Justice Department’s possession that are necessary for our audits, reviews, and investigations, and is contrary to the principles and express language set forth in the Inspector General Act.
The opinion also finds that, in adopting Section 218 of the Department of Justice’s FY 2015 Appropriations Act, Congress’ intent was not sufficiently clear to support independent OIG access to all records in the Department’s possession. The OLC’s opinion reaches this conclusion even though Congress passed Section 218 “to improve OIG access to Department documents and information” following the Department’s failure to independently and timely provide all responsive records to the OIG, and Section 218 explicitly provides that the Department may not use appropriated funds to withhold records from the OIG for reasons other than as expressly provided in the Inspector General Act.
As a result of the OLC’s opinion, the OIG will now need to obtain Justice Department permission in order to get access to important information in the Department’s files – putting the agency over which the OIG conducts oversight in the position of deciding whether to give the OIG access to the information necessary to conduct that oversight. The conflict with the principles enshrined in the Inspector General Act could not be clearer and, as a result, the OIG’s work will be adversely impacted.
The OIG will immediately ask Congress to pass legislation ensuring that the OIG has independent access to the information it needs for its work. The Attorney General and the Deputy Attorney General have each expressed their commitment to join the OIG in this effort.
Inspector General Michael E. Horowitz stated:
“I strongly disagree with the OLC opinion. Congress meant what it said when it authorized Inspectors General to independently access ‘all’ documents necessary to conduct effective oversight. Without such access, our Office’s ability to conduct its work will be significantly impaired, and it will be more difficult for us to detect and deter waste, fraud, and abuse, and to protect taxpayer dollars. We look forward to working with the Congress and the Justice Department to promptly remedy this serious situation.”
[This post has been updated to add the opinion.]
While it is not quite as exciting as Trump!-mania, the other news this morning is that DOJ is getting back into the baseball game. Having brought responsibility to the financial sector, sent the Wall Street scourges all to prison, and accountability to out of control warrior cops, DOJ is now focused like a laser on computer hacking by the St. Louis Cardinals. From the New York Times:
The F.B.I. and Justice Department prosecutors are investigating whether front-office officials for the St. Louis Cardinals, one of the most successful teams in baseball over the past two decades, hacked into internal networks of a rival team to steal closely guarded information about player personnel.
Investigators have uncovered evidence that Cardinals officials broke into a network of the Houston Astros that housed special databases the team had built, according to law enforcement officials. Internal discussions about trades, proprietary statistics and scouting reports were compromised, the officials said.
The officials did not say which employees were the focus of the investigation or whether the team’s highest-ranking officials were aware of the hacking or authorized it. The investigation is being led by the F.B.I.’s Houston field office and has progressed to the point that subpoenas have been served on the Cardinals and Major League Baseball for electronic correspondence.
The attack would represent the first known case of corporate espionage in which a professional sports team hacked the network of another team. Illegal intrusions into companies’ networks have become commonplace, but it is generally conducted by hackers operating in foreign countries, like Russia and China, who steal large tranches of data or trade secrets for military equipment and electronics.
Ay caramba, so the, arguably consistently best organization in MLB, the Cardinals, was hacking the consistently worst, or close thereto, team the Astros, in an effort to get ahead? Who is running the Cardinals these days, Bill Belichick? This is almost too stupid to be true, but there it is, in glaring black and white. Hard not to smell a full blown Congressional hearing inquest coming too, because that is just how they roll on The Hill. Maybe after their summer vacation.
But, all kidding aside, while the US government does not have a reputation for securing their own networks, it is scary to think what resources may be spent on what is effectively a civil matter between two baseball teams. It is always instructive to remember the ridiculous amount of time and money DOJ expended fruitlessly pursuing Roger Clemens. If you had forgotten my report on the DOJ Clemens absurdity, in its full graphical clarity, from almost exactly three years ago, click on and embiggen the graphic above, which is an official DOJ creation by the way, and recall all its sickening glory.
This is without even getting into the idiotic, and humiliatingly losing, pursuit DOJ made of Barry Bonds. It is hard to tell where DOJ is going, or how far it will go, with this excursion into a pissing match between two professional sports franchises, but if past is prologue, count on DOJ wasting an absolute ton of your and my tax money.
So, when the Department of Justice and Executive Branch come hat in hand screaming for more “cyber” resources and funding, remember just what it is they are doing with that money and those resources to date. And remember just how terminally stupid this case, and DOJ investigation into it, really is.
Loretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?
No. Nothing could be further from the truth.
This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).
But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.
And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.
Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.
This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.
And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?
For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.
That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.
The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.
And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.
Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.
So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.
There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.
No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).
As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:
These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.
So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.
But, without any question, my best early takeaway key is that the United States Government, knew, they bloody well knew, at the highest levels, that what was going on in their citizens’ name, legally constituted torture, that it was strictly illegal. They knew even a “necessity” self defense claim was likely no protection at all. All of the dissembling, coverup, legally insane memos by John Yoo, Jay Bybee et. al, and all the whitewashing in the world cannot now supersede the fact that the United States Government, knowing fully the immorality, and domestic and international illegality, proceeded to install an intentional and affirmative regime of torture.
Here, from page 33 of the Report, is the language establishing the above:
…drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution. The letter further indicated that “the interrogation team had concluded “that “the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”
They knew. And our government tortured anyway. Because they were crapping in their pants and afraid instead of protecting and defending the ethos of our country and its Founders.
First, at the insanely reckless, and inexplicably late hour of 8:00 pm, St. Louis prosecutor Bob McCulloch held one of the most surreal and disingenuous press conferences I have ever seen by a prosecutor in my life. Correction, not one of the most, but THE MOST. Here is the video and an uncorrected transcript from CSPAN.
The content is simply stunning. Prosecutor McCulloch basically gives a closing summation from the perspective of Darren Wilson’s personal defense attorney. Which makes sense, as that has been the clear and unmistakable posture of McCulloch from the outset of this charade. He glowingly recounts cherry picked aspects of Wilson’s testimony to support the officer’s narrative, and then attacks the numerous civilian, and mostly black, witnesses that support the Brown side of things as all being either mistaken, liars or not even there. Just amazing.
But, as I alluded to, it was not just the content, but the timing of McCulloch’s press conference as well. It was a consummately reckless and hideous thing to do to wait until well into the night and darkness to incite the tinderbox of emotion and protest. Here is Jeff Toobin at CNN:
Here’s the thing about that time of night: it’s dark. Anyone — anyone! — should have known that the decision in the Brown case would have been controversial. A decision not to indict, which was always possible, even likely, would have been sure to attract protests, even violence. Crowd control is always more difficult in the dark.
The grand jury’s deliberations concluded around lunchtime on Monday. It would have been simple to make the announcement while it was still daytime. Still, McCulloch said that he would not announce the grand jury’s decision until 8 p.m. CT.
The predictable reaction ensued. Protests began, some of them violent. Police responded with tear gas. Fires burned. Cars were destroyed. Gunshots were heard. The full scale of the damage was difficult to assess last night.
The ultimate verdict on the grand jury’s decision is up to history at this point. But the verdict on McCulloch opting to announce the decision at night is clear — and devastating.
That is spot on. Insane is a word that I have been using a lot in respect to this case, but it certainly applies to McCulloch’s dog and pony show timing.
Next is the actual grand jury materials and content, and what they mean to the injustice that has occurred in this matter. That one is going to take a lot longer to suss through and put together. I have read a few bits and pieces, notably much of Darren wilson’s grand jury testimony, but there are thousands of pages of material, and it will take me days to get through it properly. More will come, but for now, I want to give a couple of links to the full set of materials put together by others.
Here is the New York Times version. I think it is the best formatted and easiest to navigate so far.
They are all fine links from which to navigate and I link all three because they went to great trouble to do a public service in a short amount of time. They are owed thanks. The one substantive comment I will make for now is the way the standing prosecutors, Kathi Alizadeh and Sheila Whirley, spoon fed the witnesses, and especially Darren Wilson, and otherwise slanted everything imaginable, to support the exoneration of Wilson is just disgusting. I have read countless grand jury transcripts over the years, and I have NEVER seen anything that remotely resembles this kind of biased, for the defendant, dog and pony show. Again, it is simply insane and unheard of.
Okay, this entire grand jury was a farce, a charade, and a lie. It was a cravenly engineered whitewash by Bob McCulloch from start to the criminally reckless end with Ferguson in flames last night. And do not, like so many on social media seem to be doing, think the DOJ is going to bail the situation out by indicting Darren Wilson on federal charges. Even DOJ veterans say it is unlikely. I say there is not a chance in hell of an indictment against Wilson personally.
In closing, a few words by my friend Scott Greenfield from his excellent criminal defense blog Simple Justice:
Americans may be a smart, educated people, but we are lazy and ignorant. It’s too much effort for our delicate sensibilities to gain a deeper understanding of how our nation functions. This is why the Ferguson Lie happened. This is why the Ferguson Lie works.
That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion. To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury. Wachtler’s “ham sandwich” has grown trite in this discussion.
The Ferguson Lie is an appeal to our sense of fairness and transparency. We were played. McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie. To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence. The grand jury transcript will be disclosed to provide complete transparency. Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.
The grand jury did the dirty work that America needed done. The grand jury has spoken.
This is the lie.
Go read all of Scott’s piece, it is superb and exactly how I feel too.
For now though, I have to get off to court. There will be much more, but I am not sure when given the time to cull through the materials and the holidays. Until then, happy hunting in the treasure trove of documents, and post your findings and discussion in comments.
The handling of the BALCO series of investigations, both by lead investigator Jeff Novitsky and the US Attorneys office, has been relentlessly aggressive and marked by dubious, at best, tactics. Considering that the DOJ, during the entire time period, could not find the resources to prosecute the banksters who brought down the entire economy, BALCO was one of the most hideous wastes of taxpayer money imaginable.
Remarkably, the questionable tactics by DOJ may well be raising their ugly head yet again. Bonds’ appeal in the 9th Circuit is a somewhat mundane legal issue that has been fully briefed on the en banc petition for the better part of a year. The en banc hearing, before KOZINSKI, Chief Judge; and REINHARDT, O’SCANNLAIN, GRABER, WARDLAW, W. FLETCHER, RAWLINSON, CALLAHAN, N.R. SMITH, NGUYEN and FRIEDLAND, Circuit Judges is set for 2:00 pm tomorrow, Thursday September 18, 2014
Yet, less than 48 hours before the en banc rehearing is scheduled to commence, the DOJ has suddenly, and mysteriously, lodged sealed filings at 8:00 pm last night. These are Docket Numbers 64 and 65 respectively:
Filed UNDER SEAL Appellee USA motion to file a letter to the court under seal (PANEL). Deficiencies: None. Served on 09/16/2014.  (JFF)
Filed UNDER SEAL Appellee USA letter dated 09/16/2014 re: constructive amendment argument. (PANEL) Paper filing deficiency: None.  (JFF)
Here is Bonds’ Petition for Rehearing En Banc. Here is the previous panel decision in the 9th Circuit. If you don’t want to bother with the full pleadings, this article from the Orange County Breeze gives a nice synopsis of the scope of the en banc proceeding for Bonds.
As can quickly be discerned, the appeal centers really on common statutory interpretation as applied to the facts in the public trial record. The issue is whether there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child — in response to a question asking whether his trainer ever gave him any self-injectable substrances — was evasive, misleading, and capable of influencing the grand jury to minimize the trainer’s role in the distribution of performance enhancing drugs, and whether, under the law, that can properly constitute obstruction. I wrote an extensive piece arguing the weakness and infirmities of the verdict at the time it was handed down by the jury. Which is when the jury also acquitted Bonds of all the substantive underlying perjury counts.
Yes, the appeal is really that simple. So why, pray tell, does the DOJ need to be interjecting last minute sealed documents? What possible need could there be for anything to be sealed for this mundane criminal appeal? There may be a valid explanation, but it is nearly impossible to fathom what it could be.
I am willing to bet Bonds’ attorneys, Allen Ruby and Dennis Riordan, must be apoplectic.
UPDATE: Well well, I am sitting in Alice Cooperstown having lunch, waiting for my preliminary hearing to reconvene, and Josh Gerstein just sent me the answer to the question of this post. YES! Indeed the sealed filings are a slimy last minute trick pulled by the DOJ. DOJ was trying to insert grand jury testimony from the aforementioned government BALCO investigator, Jeff Novitsky, into the appeal when it has never, at any point of the proceedings, whether in the trial court or 9th Circuit, been part of the record or indictment.
Here is the responsive pleading just filed by Bonds’ attorney Dennis Riordan. Here is the pertinent part:
The grand jury transcripts referred to in the government’s motion and letter are not part of the record on appeal. Had they been before the district court in any form, the proper method of adding them to the appellate record would have been by means of a timely motion to correct or modify the record under Rule 10(e) of the Federal Rules of Appellate Procedure. The transcripts which are the subject of the government’s motion, however, were never placed before the district court in either pretrial, trial, or post-trial proceedings. Notably, the declaration of AUSA Merry Jean Chan which accompanies the government’s motion makes no claim that the transcripts were filed with the district court. “Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (citing, inter alia, United States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir.1979)).
Should the Court nonetheless wish to consider the transcripts in question, they fully support Mr. Bonds’s argument that the district court constructively amended the indictment by instructing on “Statement C” as a basis for conviction on the Count Five obstruction count, although that statement was not contained in the indictment. In his testimony, in discussing Statement C, then labeled “Statement F” before the grand jury, Novitsky admitted that Mr. Bonds had responded to the pending question—“Did Greg ever give you anything that required a syringe to inject yourself with?”—with a “denial” before veering off into a digression about “being a celebrity child.” (RT of February 3, 2011, at 110.) Novitsky’s admission that the prosecutor’s question was in fact answered by Mr. Bonds constituted a good reason why the grand jury would not have relied on Statement C in indicting on the obstruction charge. The only manner of accurately ascertaining whether a grand jury relied on an act in indicting is by the inclusion of that act in the indictment itself. Here, Statement C was expressly excised from the indictment by the use of asterisks. See Appellant Bonds’s Petition for Rehearing En Banc, at 16.
Hilarious. DOJ tries a patently inappropriate punk move and Dennis Riordan turns it around to bite them in the butt. Quite well deserved. You have to hand it to the DOJ in the BALCO cases, they are nothing if not consistently ethically dubious.