Transcripts For CSPAN2 Book Discussion On Licensed To Lie 20140823

Former federal prosecutor sidney howell. She talks about misconduct and what can be done about it. This is about 90 minutes. Good afternoon and welcome to the Cato Institute. Find the director of the project on criminal justice. Today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today Sidney Powell has written a new book entitled license to lie exposing corruption in the department of justice. The book recounts several cases in which ambitious prosecutors used a legal and unethical tactics to win their cases. Before we get to the panel of experts, i want to take a minute or two to a something of a foundation for the discussion thats going to follow but before i do that, let me ask those of you that came with cell phones if you would take a moment to quickly doublecheck and make sure that they are turned off as a courtesy to our speakers. That includes our panelists. [laughter] the first point i think that needs to be understood is that there has been an incredible growth in the federal criminal system over the past 30 years. In 1980 there were about 1500 federal prosecutors. Today there are close to 8,000. Second theres also been an explosion in the number of federal crimes on the books. We know there are about 4,000 federal statutes ons right now but when you take into account all of the federal regulations that are churned out by the regulatory agencies we are talking about tens of thousands of regulations that can be enforced in the crib. Rico criminal system. A representative from the department of justice is was explaining one of these statutes and as he was explaining the scope he was interested by one ointerpreted by oneof the justis Justice Stephen breyer and he said just a second. I think theres 200 million americans in the workplace and according to your definition of the Honest Services criminal statute about 150 million fold on the wrong side of that line. This was the point where he didnt really deny the point. Consider that for just a moment. In the eyes of the federal government we have 150 million americans that they consider to be criminals and thats just one of these federal criminal statutes. As i said there are thousands more. The spider web of regulations is so vast its hard for an ordinary citizen to go about their lives without breaking some rule or regulation. This is just not the same america that we grew up with. A lot of us can remember in expression when we were growing up that said Something Like lets not make a federal case out of it but that expression is losing its force given the growth of the federal criminal code. We also have to worry about situations people have not violated any one of these rules and regulations but nevertheless have been targeted by an unethical prosecutor. Their businesses fail, their families are shattered into andr life savings into going to attorneys and law firms that are going to defend them. As a matter of fact their own attorneys advised him to plead guilty but theyve met with the client and they are convinced they are innocent. If other peoplea lot of people d that have been . They argue the alternative is even worse. Its too risky. We are talking about complete bankruptcy if you dont plead guilty early in the process because the case will drag on. More money going into the attorneys. Even a longer jail sentence senr the journey chooses to believe the prosecutor rather than their version of events. So these are some of the problems analysts will be addressing along with specific cases. I will then introduced the guest commentators and then we will open up and take your questions about 15 minutes before we adjourn for the launching of stairs sai Sidney Powell servedn the department of justice under the u. S. Attorneys appointed by both political parties. During her to wear in the department she taught courses on criminal trials and appeals to other prosecutor prosecutors ate attorney generals advocacy institute. She has been the lead counsel on more than 500 appeals in federal court and for the past 20 years shes been in private practice ranging from federal judges to international corporations. Shes been reportedly raided by her peers as one of the best lawyers in america should see steve rico she is qualified to discuss ethics. Please welcome the author of licensed to lie, Sidney Powell. thank you all very much. I want to thank the Cato Institute for hosting this eve event. I very much appreciated. Appreciate it. Thank you judge Alex Kozinski and also ron weich. This is a very auspicious occasion. I think im going to start with the foreword to the book. The judge Alex Kozinski was kind enough to write it for me because the issues in the book are fundamental to the fairness of the legal system. The main premise underlying the book is prosecutors have an ethical and legal and constitutional obligation to disclose evidence that is favorable to the defense. There are legal reasons for its Supreme Court held in three d. Versus maryland that i has a constitutional obligation fundamental to do process. Then as a practical matter prosecutors have all the cards. The agents and Police Officers are at the first people on the scene if theres an immediate crime or they are the ones who have conducted an investigation into allegations to begin with or put together all the pieces to charge a crime. They have control of the evidence and of different sex. They have control of the expert witnesses and in the cases discussed in the book they have even more control than that. One of my challenges today will be to talk about the book without spoiling any of it for you because i do want you all to read it. Its written like a beagle thriller. I wanted people to be able to read it who were doctor attorneys and for attorneys also do find it interesting and detailed by it so that you can continue reading it but it is all true. It contains real transcript excerpts. One person asked me as i have embellished piece that he was giving me up 10 of the way to embellished for the sake of making it interesting. I said i hate to tell you i actually toned it down. Its not embellished. So with that in mind, there are a number of things in the book that i will share with you. Robert jackson was one of the great Supreme Court justices and as attorney general he gave a speech on april 1, 194 first 19t has been enshrined in legal history. He talks about the role of a federal prosecutor and how important it is for the prosecutor to think justice and not convictions. He explained that his best its one of the forces in society but at its worst he is one of the worst because he has such complete control over what can happen to an individual and so such broad discretion. A prosecutor can indict someone. He can have the case processed quietly and secretly or exclusive old public and humiliate and degrade the person as much as possible through the process. He had control over where the person goes to prison to large extent the government likes to sing only the bureau of prisons assigned at thats not accurate at all. In the cases we discussed in the book thats true. But yet, there is no overriding supervision of prosecutors. You will see that throughout the book also. Also. The discretion is virtually unbounded. Wed like to thinwe like to thid jury system as one that protects citizens but it doesnt. They are virtually a rubber stamp for prosecutors. Theres hardly a prosecutor in the country that couldnt get an indictment against a potato out of the grand jury if thats what they wanted to do or get a case billed if thats what they want. So the checks and balances need a serious revision. Its also important for federal judges to pay very close attention to trials. It used to be i think at least in my experience under ten different attorneys in three districts across the country over a period was ten years it used to be judges could trust the prosecutors to tell them what th the law was indicative facts straight. No attorney i ever worked with would have tolerated for two seconds the behavior that i saw that caused me to write the book. They all were adamant that we do it right and that we seek justice and be fair and carefully exercise our discretion to prosecute only cases that we had all the evidence and we were sure the person was guilty. We didnt have time or interest in going to look to find something to pin on someone. That wasnt our job. No u. S. Attorney i worked with belief that wa was our job if we didnt stack the kinds of indictment either. We would invite on one, two, three company b. For offenses assuming we have the evidence backed up to prove all of those beyond a reasonable doubt with no question in our mind that that is what should happen in the case. And we produced evidence favorable to the defense that the Supreme Court called brady evidence. That was our job. Ive stood in the court of appeals and confessed error when the trial lawyers got something wrong i wouldve told that we screwed that up. In fact if you run through the system, the word botched the quote in a footnote of a decision by urging goldberg where he quotes me explaining the agents botched it. I think thats the only time the word appears. Maybe i should do that search again to see if anybody else has used it but its in there. Lots of people want to know why i wrote the book and why i wrote the book now. The answer to the first question is i just could not stand what i had seen. It broke my heart. I have practiced before the fifth circuit for more than 30 years. Im not going to say how many more. Im going to keep that secret. But throughout my practice i have bragdon and applauded and loved the circuit for it to be given the chance i gave it the chance to correct and not get it right was more than i could stand. They also failed to do anything about it. I know im not the only leader that has seen this kind of injustice. As the judge said in the United States versus olson there is an epidemic of the violations abroad. It is an attempt problem that affects the fundamental fairness of all of our proceedings and if the prosecutors can do what they did who were Merrill Lynch executives in the United States senate and others were other Business Executives all of whom had fled stellar winds did everything right and believed in the system to have prosecutors literally make up crimes again against. Federal District Court of appeals not get it right word is simply heartbreaking to me. Thats why i had to write the book. I knew it had to be done with credibility. Defendants can tell you about all of the injustices they suffered and they say he was a convicted of selling. So i felt like it was time for some lawyer speak up. When i did it i had no idea what the reception would be. I did just that if anybody would pay the slightest bit of attention or not. It turns out people are paying attention and so i think each of you for being here to pay the attention to that issue because it is so important and there but for the grace of god go any one of us. If they can do with a date to us as Brendan Sullivan said senator ted stevens before the Merrill Lynch executives and wall street and houston and dallas they can do it to anyone. We also gave the Bar Association every chance to do something about it in at the Bar Associations did nothing. The texas bar bounced the great things like a super bowl. It practically came back by return mail even though it was written by the coauthor of the law of lawyering and considered one of the top experts in the country. It was a 30 page brief in numerous citations to the cases and of the definitive explanation of the fact that showed the defense and the fifth circuit opinion that found that yes the prosecutors suppress evidence favorable to the defense but it didnt matter. So when there are bounced back and thought about sending them the license i havent done that because the number of friends urged me to continue practicing which im not sure i can do but im still working on that possibility and then we also find with the bar against katherine dot dc bar swept it under the rug. The deputy counsel of the fbi said the department o departmene was the sending him against the ethical charges. They kept it for about 1 for abs and then without giving notice that new york bar punted it to the office of the responsibility within the department of justice. Yes you heard that right the department of justice was defending andrew weissman. You can pretty much figure out how the department of justice decided that one. In less than a week the office of responsibility ironically named in the department of justice now ironically named dismissed a grievance. I sat down and said okay you either have to put up or shut up so i decided to write the book. Thats a long explanation of why i wrote the book but that is the fundamental story. The book tells the story of any number of highprofile prosecutions because i want everyone in quitting judges to understand the human toll it makes when prosecutors violated the oath, the constitution and the rules of ethics. So there is a very human story that run throughout the book of my client in particular. Some of text things ted stevens. Most everyone thought Arthur Andersen was horribly guilty. I have to confess that i did also as soon as i started hearing about the enron disaster i knew that ramifications on people across the country, millions of people lost a lot of money and all their savings. It was a horrible outrage and most of us from everything that was reported in the press assumed anybody that had anything to do with enron was killed. I was one of those until i dug up the case of Arthur Andersen when the petition for the read hearing was due, and other petition for the fifth circuits appeaappeal for the file to the opening brief but decided to consult additional counsel in the preparation of 3. 17 i got involved. We had 14 or 30 days to get a t. The record was massive. They have a staff to divide it into the record at the time but it didnt take me long to wonder why the indictment charged that charged. The actual offense against andersen requires an element i couldnt figure out how they were going to prove and then when i read the instructions they had persuaded the judge in houston to alter the pattern and the jury instructions. Patterns are approved in every circuit for many offenses. If you use the power instruction will be affirmed on appeal. Its already been uncovered. When you deviate from the pattern instruction, that alone raises any number of red flags. There is rarely a reason to do that. But here they persuaded the court to do that. Between the indictment and the instructions i knew there was no way anderson should have been convicted. It turns out as i dug into it more the jury was out for ten days before theyve returned the verdict. The company Arthur Andersen was destroyed upon indictment. They represented 2300 companies. They hit 85,000 employees worldwide so easy 5,000 jobs were destroyed to avoid upheaval in the markets and once the case went to the fifth circuit affirmed without a problem. Finally the Supreme Court took the case and reversed it 9 9nothing because anderson didnt have fair warning that his conduct was criminal, witness tampering wasnt the statutes to use into the conduct wasnt criminal at the time and the jury instructions Justice Rehnquist wrote for the Unanimous Court said it was shocking how little clip ability the instructions required. They removed all elements of intent from the instructions. The prosecutor primarily responsible for the Arthur Andersen indictment and conviction is now the head of the Criminal Division of our department of justice. Her name is leslie caldwell. The co prosecutor became general counsel Deputy Director of the fbi. He went back from his days after convicting andersen they then turned their sights to the executives on wall street and wanted to send a message to wall street an and viewed the bankers and spies guys Getting Better but mobsters and suits. That was the basic attitude. The destruction gave them power when they went to any other organization because they knew that if they didnt cooperate fully they would receive the Death Penalty that Arthur Andersen suffered so they entered into the most courageo d just ive ever seen. They would see nothing publicly disagree on the task force view of the fact of the case but if the task force wanted to interview a single employee the Task Force Attorney could be present. They installed an overseer who reviewed the bills from the attorneys so we have to be careful to describe what we were working on to not let the government know what that was. They named 100 people as conspirators in the litigation at large which meant everyone had to lawyer up if they were smart at all they insisted clients plead the fifth amendment because if you talk and said anything that disagreed with the governments view of the case you were subject to perjury and obstruction of justice. They reminded any witness of the threats daily. Some witnesses got called as many as three times a day reminding them. So the prosecutors leslie caldwell, andrew weissman, kathryn shuts down any access by the Merrill Lynch to his to any defense witness and in fact our own inhouse counsel was threatened with indictment after she testified in the grand jury her status was changed from subject to target of the investigation so even when she took the witness stand for the defense which the lawyers didnt know she was going to do until the last minute was terrified. He sat in front of her taking notes the entire time she testified and they didnt give us any of the material or evidence favorable to the defense to the constitution required that we would be giving. They told the court repeatedly there was no material in this case. So the executives were convicted by the jury no surprise to lawyers were like deer in the headlights any time anything happened in the courtroom. The prosecution had witnesses that were cooperating with prosecution undetheprosecution t that gave him extraordinary benefits. Their witnesses were the people that had stolen money within enron and there were definitely some feeds within enron had testified against people that havent taken any money. As the District Court judge sent the defendants to prison, he said i realize you were just doing their jobs. The defendants didnt take a penny from anyone. Merrill lynch made money on the transaction and the enron group made 53 million on the transaction. No one lost any money and there were no misstatements to the market that would qualify the security fraud prosecution said they indicte indicted the defent under the Honest Services. Which alleged they had comes by your with enron cfo. That would be completely laughable were it not for the fact they couldnt get that indictment dismissed. Did they take any money or property from anyone . No that is the fraud in fact it means basically stealing. It really falls under one of the Ten Commandments but its gotten more complicated than that. It was something i had never seen before. I did Extensive Research and they couldnt find a single case in the courts that served as president for making the conduct alleged in this case a criminal offense much less a federal criminal offense. There wasnt one. No problem. Send them off to prison. Motion to dismiss the indictme indictment. Requests for the bill of particulars to tell us more about what the crime is we are supposed to have committed the night. When the fifth circuit got the request for the bail pending appeal they argued there was no substantial issue nevermind everything was wrong in the case from the indictment through the jury instructions also in fact id seen so many issues as existed in the case. It was going to be hard to convince that into something 50 to 100 pages of the circuit to decide. Usually youre lucky if there are one or two good issues that might warrant a reversal may we had so many in this case we couldnt begin to brief them a all. The fifth circuit denied the appeal in such district judge denied the Merrill Lynch executives had to report to prison involuntarily surrender. The judge did allow them to go to prisons to drive themselves as opposed to having them hold from the courtroom which is what the government asked for my old desk for 24 years in prison he gave them three to four years and allowed them to voluntarily report. All motions would unite and even saw three hearing because i couldnt believe the fifth circuit wasnt going to grant them the field that they denied rehearing also. Six years later fastforward. The ted stevens case has come along and judge sullivan different from the enron Case Questioned the government when they said there was no brady and he started requiring them to produce different parts of their investigatory materials and grand jury transcripts and fbi reports of the statements and each time they had to produce something it showed we should have been given thats before. To the point that they made it clear he was going to dismiss the indictment against ted stevens. At that point we had a new attorney general his name was eric holder and he said he was going to clean up the department of justice. He came in and dismissed the indictment in the interest of justice. I thought we are going to make some progress here now will be a good time to talk to the department of justice and let them know what has come to light because we finally got the note of thousands of hours of interviews and he had said there was actually no crime in that case either. Even he had agreed that there was no guarantee that would have made transaction a legal. He said that didnt happen. They proved the case only using the hearsay testimony of the subordinates and there was even one note that explained he had said one thing to his subordinatesubordinatesand anots at Merrill Lynch just like our defendants have said we only knew what he had told us in the fiveminute phone conversation. He was the witness of god what is against and the guarantor that made the transaction it legal from the getgo. We got nowhere with that either. We did talk to the department of justice and we were met with hostility and nobody ever responded to our application on the merit. The fifth circuit finally reversed the convictions after my client spent a year in prison they reversed 12 out of 14 counts against all of the defendants. They acquitted the 32yearold assistant in Merrill Lynch who have participated in the deal, acquitted him completely. He had served eight months in a maximumsecurity transfer facility in oklahoma 600 miles from his young family. Our other defendants were not given light duty either. None of them were in prison camps which i assure you most are not anything like you would think they cant as being. They were in a highlevel security with each level of prison security frankly comes additional threats to your own safety because it is the least violent criminals that are in the lowest secured facilities and the more violent as you go up the ladder. My client shared a cell with 13 people for the first part of his sentence. One of those people was set on fire in the middle of the night as he slept. There are other stories i wont use time on today but there was a lot that they had to deal with. Fortunately my client came out fairly well. He is a very affable guy. There is a poignant story of things that happened in his life before he went to prison that basically left him with an attitude of gratitude. So he went to prison with the idea of helping other people, teaching other people to read, teaching other inmates how to understand personal finances and even had hi his wife send materl to explain how to open a bank account and manage the basic household needs and budgeting and things like that. He said the prison system itself is a farce when it comes to any rehabilitation or education for people and theres another story from his prison but i will leave to your reading in the book so. After they were released from prison and after the judge had dismissed the indictment a third team of prosecutors finally produced evidence that they didnt know what was on the disc. They knew there were documents disc but they didnt realize the significance of the documents. They gave me a dis disc that contained yellow highlighted by the original prosecutors have evidence that was favorable to the defense that they had identified as favorable to the defense before the first trial and they had omitted the key words and information when they gave us a limited summary of what the actual participants in the transaction had said. One of the statement wa statemee and misleading in the summary that katherine who became the chief of the council and left recently had signed. She had said that jeff mcmahon who was the treasurer of enron at the time had also given a guarantee to the Merrill Lynch defendants and said he did not recall in the summary they gave us with his statements. It turns out there were multiple pages of his statement to multiple federal agents that consistently said the command said there was no guarantee and also said he was participating in the phone call that was so crucial to the case and that they didnt give a guarantee either so here we have evidence that reported the guarantor is the only alleged crime in the case who despised each other they agreed long ago before the case was even indicted that there was never any guarantee made to the executives in this case. So the executives spent a year in prison on an indictment that made it a crime while the prosecutors highlighted and hid the evidence from firsthand participants that said there was no criminal like to be in this case at all and the prosecutors became the chief white house counsel, Deputy Director of the fbi, Matthew Frederick became the attorney general for the Criminal Division under the Prior Administration that rushed to indict senator ted stevens and unseated the longestserving republican in the senate only to have the indictment dismissed after stevens lost his senate seat for the same kind of withholding evidence that happened in the Merrill Lynch and enron case. What can we do about this . The good news is there are things that can be done and i will run through them quickly. I will try to remind everyone we even have to remind a result there is a presumption of innocence. Everyone is entitled to the perception of innocence. We think when somebody is indicted to grand jury found probable cause we just think that somebody indicted dave got to be guilty. We have to remind ourselves and i have to remind myself everyone is entitled to the presumption of innocence and the government must be held to the burden of proof to be beyond a reasonable doubt. They must be held accountable when they do not produce evidence favorable to the defense. What can we do not regard . Judges can enter the brady complaints workers requiring the government to produce evidence of a set schedule so that the defendants have it in time to pair for the defense which is what the Supreme Court requires. Judges are now starting to do that more often. Judge sullivan started doing that after the report of the investigation and it was identified because he had identified a specific order they could be prosecuted for the intent into the Bar Associations must be commanded to step up and deal with that. Im hoping theres a public outcry in response to the book to urge our associations to be more responsible and i know theres going to be legislation introduced soon called the integrity act that should receive bipartisan support. There was an effort upon the publication of the report on the investigation the judge had ordered a bipartisan effort started by Lisa Murkowski from alaska to introduced the fairness and disclosure of evidence that it received support across the board. The aclu of the National Chamber of commerce of the association of lawyers, the american Bar Association every state Bar Association, everyone. Every Major Organization supported the fairness and disclosure of that in fact. The only group i know of that opposed the federal prosecutors that are now named department of justice. So there is great in efforts to introduce the prosecutorial integrity act that carries the same requirement of production on the government and attaches penalties for the failure to produce. Im going to urge everyone to support that legislation and that means getting more active about contacting your congressmen and senators and urging them to do something about it. The judges will start entering the Compliance Orders and reversing the convictions referring things to the Bar Association with a letter demanding action and the citizens start serving with an idea that a single juror can stop the conviction and you can tell us the judge is running a railroad in the courtroom or not. You will see the position in houston and the stevens case in the book and it is very distinct and unmistakable difference to the Judicial Attitudes can make and then judge kozinski who was going to the government accountable for its conduct. Its all about our participation, fundamental fairness and Holding Prosecutors accountable for the misconduct. Thank you. [applause] we are now going to turn to the guest commentators and the first is also well qualified to address the subject of the misconduct because over the course of his career he served in the executive branch, the legislative branch to private practice and now academia. Hes the dean of the university of Baltimore School of law. Before that he was appointed by president obama to the highranking position within the department of justice and he served as the assistant attorney general under eric holder for legislative affairs. In that role he represented the Justice Department on all legislative and oversight battersea for the congress. Earlier in his career he served as chief counsel to senator harry reid and before that to senator ted kennedy. He began his career as an assistant District Attorney in new york city so he brings prosecutorial experience to the discussion. Please welcome mr. Ron weich. [applause] i would like to thank hi timr the introduction and the Cato Institute for inviting me to be here. These are important issues sydney has raised in the book. I want to commend her for writing this book. There are lots of lawyers who see injustice in matters they handled and they deal with it by going out and having a drink but what sydney has done is taking her passion for justice and putting it out there for the world to see and to judge and it requires a great discipline to write a book like this is a detailed look 400 pages and she deserves a great credit for bringing her concerns to the audience. Having said that i want to say my reaction to the book is some what next. I think that there are overall themes in the book that i agree with and i will speak about those and i think as i said sidney deserves great credit for highlighting those into publicizing the problems in the criminal Justice System. At the same time i find her and indictment if you will love the prosecutors in the case that she handles to be unconvincing and i will explain why i reached that conclusion. What the speaker of the overall themes that i agree with. Sydney highlights in the book and in her opening remarks by tremendous power of prosecutors. Unilateral authority of individual prosecutors to ruin somebodys life Justice Jackson wrote about the obligation of prosecutors to use that power wisely and mindful of the fact its not to convict but to do justice. That is expressed all over the department of justice but sometimes there are real words and abuses. Before we get to the individual abuses that we see that in general i think the prosecutors ive seen both in the state witl and federal level are generally honorable. I think it is possible to paint with a broad brush understandig the problem to be sure there may have been abuses documented but in my experience, many prosecutors are honorable men and women that seek to do justice and the public interest. Nobodys getting rich being a prosecutor. They are doing it because the beauty thats the right thing to do and its commendable work for those that do it well. With that said, and i did see the power of a prosecutor is scary even if it is not abused just a judgment individual prosecutors get to make. I graduated as a young man. I was about 24yearsold. I was in the das office and i have yet to be because new york at the time had a system of predicate walls basically minimum mandatory laws that enabled me to decide whether someone was going to prison because i could breathe deeply through refused to plead to the greater offense and i was disturbed by that i had the power and i didnt think i should. I have supervisors and colleagues i could talk to but ultimately i felt i had too much power. As they went on i was ultimately disturbed enough to leave the office and go into more of a policy rule. Later i found myself at the Justice Department and again i saw prosecutors who i felt had too much power into some of them were overzealous in exercising that power and what i think needs to happen are absolutely on target there needs to be more checks, internal and external on individual prosecutors exercising discretion because nobody should have unilateral power essentially of life or death. A second theme i agree with is the issue of lengthy sentences. The cases she talks about our white collar cases but they say throughout the troubled Justice System child pornography cases where there has been the misconduct of people viewing certain material in the center of the worst punishment in the world that they they lose their job and are forced to stand in front of the court and face the consequences. They are then sent to prison for years or decades. When i was in the Justice Department [inaudible] i came to realize every single offense that i saw was about three times too long. A 30 year sentence and should have been tens. Mine should have been three and people that went to prison a couple of years probably didnt need to be there at all. During the issue of the prosecutorial is the issue of mandatory sentencing which has more power but the judges dont have the power to check certificate mandatory sentencing 930 crowd of my wife that leaves families against mandatory minimums and she is really getting traction in congress and at the Justice Department to deal with some of those abuses and what i think is so important is the printing conditions highlighted in sydneys book he had a tough time in the year he was in prison and other defendants face to face and everyone says the federal prison camps its really not like that. Any deprivation of liberty but the medical care in any prison including federal prisons are deplorable and should be addressed. Having said all of those good things about the book with me say i i find the single point some of them convincing. She tells two cases kind of parallel to each other. One i is the ted stevens prosecution where there is no doubt and i in his welldocumend accepted that there was abuse that led to the miscarriage of justice. The judge in the trial ultimately appointed a lawyer to do comprehensive independent review of the documented every aspect of the misconduct and the attorney general holder ultimately dismissed the indictment on his own. In the sydney questions whether they did that because they knew the judge was going to do it so why not. I can tell you i joined the Justice Department in my role several weeks after they made that decision. I heard him talk about it and it was very profound for the attorney general to dismiss that prosecution even if the judge was going to do it on his own for the department itself to take that step sends an Important Message and there was a very serious effort to reorient to disclose exculpatory socalled brady material. So that his once read of this defense case. The second story is about her client was a Merrill Lynch executive involved in the dealings with the enron corporation. Sydney alleges the misconduct in that casthis case and i do not n her sincerity and she plays up t her argument in greater detail in the book but unlike the stevens case where the attitude occasion found prosecutorial misconduct in the brown case and the attitude occasion found that the opposite is the federal District Court judge residing over the case rejected the argument into the fifth circuit had dismissed many of the accounts ocountsof the indictmef them. Nonetheless they rejected the prosecutorial misconduct and it was then appealed to the fifth circuit. The Supreme Court denied the petition to take the case and into three separate state Bar Associations declined to state that they have been gauged in misconduct. I dont know what to say. We have serious allegations by one side in the dispute. As i read the book i kept wanting to ask the other side what is your site of the story but we didnt get a lot of that. We know there was an attitude occasion. Its hard in peace cases especially the enron case and complex by the Financial Transactions and the procedural history over many years becomes complex. Its hard to judge it independently but i know we only got one side of the story. Theres another aspecthere is ae book that is of concern to me with a style that she recounts and litigation in the century provides transcripts of the argument especially in the District Court and some extent the fifth circuit and tells me what both sides are saying that she interrupts the kind of ridicule the arguments and the individuals making the arguments on the other side. She says kathy was seating and a stroke with a paper. A younger prosecutors she described as really stupid and beyond hope. She talks about Justice Department supervisors Justice Department supervisor had a smirk and affinity for a garage and as a tire which was a low blow to comment on the adversaries clothing and she ridicules the judge that provided. She never saw a judge work so hard in the face of contrary law to make sure the government would win the end she calls the judge clueless. She questions whether they might have been influenced by the people that helped them become judges whether they were intimidated by the high rank of the prosecutors whose misconduct was being challenged. Beyond these characterizations she has these very serious allegations that there wasnt just questionable judgment that the deliberate suppression of evidence and that is a tough allegation to make in the face of attitude occasion to the contrary. I know one of these prosecutors. Kathy was a colleague of mine we worked closely together. I worked for someone she became white house counsel. Shes an aggressive person, ambitious person as im and many of us are. She is an honorable person and i dont believe she is capable of the conduct that has been alleged. I dont know the prosecutors as well but i fall back on the attitude occasion. When the disputes are presented the protection of lifetime tenure review them. Sydney finds the review in adequate and i still believe in a system that results the disputes in that way. In the end i come back to applauding sidney for writing this book and its a contribution to the discussion. Im not persuaded by the central thesis and ive reject specific allegations about my former colleague and others and i reject tha this sort of wholesae allegations about production at the Justice Department but i appreciate sydney for giving us the opportunity to talk about these important issues. Thank you. [applause] the second commentator has been the judge for the ninth Circuit Court of appeals since 2007 and is well known for many things. His intellect and his sharp writing style. His magic trick is, his accent and a good sense of humor. And good looks. [laughter]. That would not be true. Ratings violations have reached epidemic proportions in recent years. With that one paragraph, the judge started a National Conversation on prosecutorial misconduct because editorialpage is including the New York Times quoted the judge and started talking about do we have a problem in this country with prosecutorial ethics, he has spoken that kato many times and we are glad to have him back. [applause] thank you. Always a pleasure to be here at cato. Before i started on this subject i want to counter another publication and that is the peace that a friend and i wrote for kato and it is called you too are probably a civil criminal. It picks up on tims point which is in fact there are so many laws out there and many of them are so ambiguous that chances are very good if something you have done in your life if federal prosecutors knew about, they can find out a lot of things nowadays using electronic data, if they want to focus they can probably get you. They could probably have you behind bars in very little time. This is the danger. To the point that sydney is making, also acknowledging strong power of prosecutors, for them to take this large body of law, this amorphous body of law and go in for reasons that may be good or not good and focus on a particular individual and that is a serious danger. Let me talk little bit about gradient other kinds of price equatorial misconduct. We have lawyers and non lawyers who understand the significance of grady. The United States Supreme Court and the Supreme Court has come up with many decisions, in terms of procedural protections for criminal defendants. Brady is uniquely important because brady, unlike miranda, where the defendant may confess but wants it suppressed because he confessed to it, it is a procedural rule but brady truly protect innocents, truly protects people who have been charged with a crime but the government has in its possession evidence put before a jury would raise reasonable doubt. The reason the government has this evidence is they have such an advantage in gathering the evidence. They know about the investigation if it is a White Collar Crime before the defendant knows anything. They access the witnesses and records and if it is a violent crime, by the time the defendant finds out about it, there is an investigation goes on, to pick up in the governments position. It was vital for the government if it had evidence to give it up and make it a fair fight. Nobody says they should be allowed to go free if they are guilty, surely if the government knows theres a piece of evidence where their star witness says it is only appropriate not to send somebody to prison without knowing both sides. We believe in juries, 12 people acting together and thinking together. And they are not giving certain evidence in somebodys possession. They cant make it undermines their ability to make a fair decision. This is incredibly important and criminal justice. The faith in the system that was expressed that i share and sydney shares is based on the idea that we can have 12 people get all the facts, all evidence good and bad and make a fair decision and beyond reasonable doubt which is high but not insurmountable. En 2 Million People they had been jailed, 2 Million People. Once the government withholds evidence, once the government will fully withholds evidence and gets a conviction, we can no longer be comfortable. Here is the thing about brady. How do you know that the government has this evidence . In most cases there might be other evidence. Most part because most federal prosecutors they do not want to get a conviction for somebody without a fair hearing and without a fruit true finding of medicine. There are people who want to get ahead by cutting corners. It makes it harder for the honest prosecutors, the ones who cut corners get promoted and saves an incentive to cut corners too. You have your own career to think about. It is exceedingly rare to find out brady evidence has been discovered. Iran mentioned to some extent, look at what happened in those cases and what the reaction is when the evidence is found. This is not the case where the Justice Department came forward and said we had all this evidence that was presented. Fbi agent. The whistle. We had a whistleblower, an incredibly rare event where an fbi agents pointed is a fingers, where prosecutors said they knowingly withheld evidence. I hope you will read the book and find out. This was a huge miscarriage of justice. He should never have been indicted or convicted of or lost the election. No doubt about it. If all the evidence had been available that case would not have gone to trial. Just read the book. The Justice Department when they found out about this you would think they would run away and hide in shame. What did we do . If the attorney general at that point decided to dismiss indictments i would be impressed but they called and said no big deal, this is no big deal. This is after he was convicted and wanted to hold around the conviction. This was a horrible thing, we are so sorry, and it doesnt matter. We are accusing the Justice Department. I dont care who the attorney general was. The Justice Department lawyers said we will hold on to the conviction. After ordering an investigation, came out that in fact this was huge misconduct that the attorney general decided to dismiss. I am not that impressed when i tell you the truth because it that point it was unthinkable that it would not have in dismissed the indictment, no doubt about it. I commend the attorneygeneral for doing it earlier. Farm more impressed if after the case was indicted, those who were responsible had been disciplined. Didnt happen. Nobody got fired overage this. There were a few suspensions but given the enormous the of what happened this was hardly a slap on the wrist. On the brown case, i wont talk much about it because i want you to get the book and look at page 4 of 4. This is the evidence produced by the Justice Department. Shows highlights. This was not the highlight that sidney put there. It was there when the evidence was given, these are statements by witnesses that go contrary to evidence by the government. They knew about it. It was not an accident. It was not a finding of misconduct but in that case, it wasnt a big deal anyway. What i did was they refused to reverse convictions. Was not the case, as they said this was okay to withhold, it was not prejudicial. Which is what courts do all the time. What many colleagues, let me take one more minute to tell you about the case i had ten years ago. The government had 10 or 12 witnesses brought to the United States illegally and some of those witnesses some of them said no. It was somebody else and the government personally involved, they deported most of those witnesses without talking about them and the case came to us. How did you go to these witnesses . If this was a corporation and a were indicting witnesses in a criminal investigation you would have indicted. The prosecutor the witnesses before the lawyer was appointed. Two of my colleagues who ideally respect are from the commission. It wouldnt have made a difference anyway. There was so blistering, it was so painful and excruciating, the government then filed, filed a petition for a hearing. Usually this is a losing proposition. In this case it was the Winning Party that filed the petition for a hearing and asked us to dismissed the conviction, reverse the conviction and send it back to dismiss the indictment. I will take my two minutes. Ten years later, i get the same case out of the same district. Exactly the same thing happened. I am standing there and asked the lawyer for the government, what happened . I think you or self argued case. The case as vacated has no president ial vow you. This is not a joke. This is not a joke. There if we didnt announce an order telling them they got to do this they have no sense of responsibility. And we made the request, that you dont do this again. The fact of the matter is lawyers who want to go bad will continue doing that unless judges do something about it. Fortunately judges are doing something about it. The case of the d. C. Court of appeals just came across and they cite me so it must be a good opinion. Face specifically directed the trial judge to compel the government to meet his brady obligation and in mississippi, neil beggars recently filed an opinion where he dismissed and indictment because of brady violation. It is too rare, these things dont come up often enough. We dont know of all the brady violations. If judges and prosecutors including their supervisors dont take stern action when it does happen and comes to light, i think we can not have confidence in our judicial system. Thank you. [applause] before we open it up and take your questions i will go to Sidney Powell two or two minutes if you want to respond to anything that has been said. Just a few points. One of the biggest problems with brady violations is a defense lawyer does not know what he does not know. There is no way to know it because only the government does. It makes it extremely difficult to undercover brady violation in the first place. As additional evidence the government and get the message with the ted stevens indictment, we need only point huge to the decisions of the ninth circuit in the United States versus co rain, two out of the same prosecution with the same prosecutor for the most part. Did not provide the same evidence to the defense they had in the stevens case and the government refused to dismiss the indictments against cotton and co ring and the district judge in alaska is that they didnt matter in those cases, it didnt matter if they had hit the evidence that completely undercut the governments primary witness, and district judge agreed like our district judge in houston. The ninth circuit reversed unlike the fifth circuit and said it certainly did matter. Judge Betty Fletcher wrote a blistering concurrence that said the governments unrepentant attitude is completely unacceptable and she would have dismissed the indictment. The majority of the panel remanded for new trial. They might have entered pleas to lesser offenses but i dont think the Justice Department learned anything from that. I can also tell you the government is trying to alter the ethical rules and all the states to include the materiality requirement and whether the evidence matters or not. And the ethical observations to provide evidence or not. If they are allowed to decide what happens to the defense we are in big trouble because to them anything contrary to their view is said with the when cora not. They use that language in stevens and the Merrill Lynch case, if the defendants said something that is exculpatory or somebody the other witness did it was said with the wink and a nod or in the stevens case to cover that, it wasnt really true, anything works to their benefits, everything works to their benefit whether it is to the defense. They need ethical rules that require protection of all the evidence favorable to the defense, we need the prosecutorial integrity act enacted to produce all the evidence favorable to the defense. If the prosecutor had any question whether he should produce it, if you need to ask whether it is produced, it should be produced just give it to them. That is the only way to assure the trial is fair. In terms of credibility of the materials in my book, i love floating all supporting documents to a web site called license. Com and you committed the actual documents themselves. If we can get a full investigation in the brown case like they did get in the stevens case which judge sullivan ordered, just terrorizing the department with the fact that independent investigator, special prosecutor, was going to look into the department of justice. If we could have gone the emails and the rest of these, they still say it is not there and i am sure there is more. I would be impressed by that but we cant get that. We couldnt get that, we can look at the documents and read the book and come to your own conclusion. I would stake my law license on the accuracy of everything in that book and i wonder if you would do the same. Take your questions now. I have three requests. When i call on you wait for the microphone so everybody can hear your question. Identify yourself and any affiliation you might have and keep your questions brief so we can get to as many people as possible. I have been puzzled from day one why in the world did the Bush Department of justice in tight ted stevens. I dont mean to be such a cynic but how in the world did that happen . The president doesnt indict anybody. Prosecutors do. The Political Forces in the administration should not be weighing in on the merits of a prosecution. Prosecutors in this case i guess, i wasnt there, i guess they believe there was cause to investigate and proceed. As we know now they proceeded in a deeply flawed way and withheld evidence that would have been helpful to senator stevens. He should not have been indicted or convicted, should not have lost his sentencing but the Bush Administration invited the u. S. Attorneys office and department of integrity section. Responsible for bringing the indictments. I think the fact that senator stevens was indicted speaks well for our system. Republican administration led by republican president s indicts a very powerful in principle it speaks well that in fact politics do not and should not play in bringing prosecutions. This is why to me it didnt matter to the attorneygeneral was. It was withholding evidence. I dont believe that was political. I dont believe they were withholding evidence to get a republican senator. They were withholding evidence because they wanted to win the case, get back their re. Thank you for what you have done. If you could describe any garden variety activity behind the iron curtain. There were good reasons people didnt speak up. I would like to know if we have a change in administration in 2016, i repeat if, if we get an administration in which does want to clean up, how is it going to get rid of Civil Servants who are well entrenched in the Justice Department, and how is it going to ensure the judges, some of whom may in fact make their decisions based on political criteria that they follow the law. Thank you. They cant do anything in particular about the judges others and making sure in their new political appointments they impress upon the judges the importance of following the brady rule, question them about their view of brady and things like that, but in terms of a new attorney general making changes, the project on government oversight has released a report based on its freedom of information act request identifying over 450 instances of intentional or reckless prosecutorial misconduct over the last decade. Attorneygeneral eric holder refuses to release even the names of those prosecutors. The stevens prosecutors, the two that were found guilty by the federal prosecutor by his investigation of intentional misconduct i still in the department as assistant United States attorneys. One of them served one day of a suspension according to the pogo report. Otherwise they appealed the rulings. Of course the internal review process of the department watereddown findings in its own report. I forgot what level it found them responsible last. But one was assessed to a 40 day suspension and one was a 14 day suspension and one of them served one day of the suspension. Otherwise it has been appealed and lost in the quagmire of the Justice Department. I think a new attorney general could make very clear, first of all regardless of Civil Service to 5 attorneygeneral i would fire them all tomorrow and what the civil section litigates the propriety of the firings if necessary. I think it is completely unacceptable for anyone who has a responsibility and a privilege of walking into a court room of the United States of america and standing in front of a federal judge saying i represent the United States of america. It is completely unacceptable for them to lie to a court, lie to a jury or withhold evidence from the defense and they would be gone in five minutes. Another one of these tactics that is shocking, and you touched on this in the forward, the way in which a trial is supposed to happen the prosecutor calls his witnesses, and the defense gets the call of their witness to establish their side of the story and when prosecutors get wind of who the defense witnesses are going to be, they quietly approached these witnesses and pressured them and threaten them with prosecution if they agreed to testify for somebody who is heading for trial. This is shocking to me and we learn from your book that this is more common than many people realize. Did it happen in two cases that you write about in detail in the book and what can you tell us more about that tactic and how common it is . It definitely happened daily in all the enron related prosecutions. All the defense lawyers were screaming about it. Jeff mcmann for example, the notes of whose interviews we got accidentally with all the yellow highlighted exculpatory information, he was threatened multiple times a day with being indicted for his role in the Merrill Lynch and run transaction in which the entire alleged criminal activity depended. Turns out that was during the trial and those calls intensified during our trial to keep him off the witness stand. He was never indicted. My client served as a year in prison for transactions that mcmahon said was perfectly lawful, and for which mcmann was never indicted of making the guarantee that my clients served a year in prison for having done. We knew when we got the highlighted no swy because they would have to have produced that if they had invited mcmann just like if they had called to testify in our trial we might have gone the notes than as to what he said so they didnt have mcmann or any participants in the transaction testify in our trial but only use evidence of the subordinates that had actually lied to. That tactic is way too common. My name is janice. I was given a 30 day sentence yesterday to jail in the city of alexandria court. It was suspended for fighting for my right of due process. Americans are unaware how corrupt our system is and that the judges, the virginia state, the different boards are all had it on the back and basically taken care of their criminal actions. The judicial system polices themselves. There is nowhere to go. I have gone everywhere. I asked for a trial by jury and was denied it. I asked to go in front of a grand jury to ask for a special grand jury. I was ordered by the Supreme Court justice to be allowed to go inside the grand jury. Instead myself and my witnesses were put in another court room and denied access to the grand jury. My evidence with three different judges has been taken out of my file and mail back to me. I have a box that is unopened of my evidence. You have to have a question. I have a question as to what we can really do to get the government or somebody that is not that is arms links to look into cases like this. Where do you go . That is why i had to write the book. [inaudible] it is a slippery slope. There are solutions. North carolina has a solution with a prosecutor. You, remembers the lacrosse case. And the duke lacrosse case . A prosecutor who eventually was convicted, but they went further. North carolina went further and passed us statute that provides for open discovery. The prosecutor has in his file, turned the file over to the sentence and that seems fair. This is not by ambush. We are not behind the iron curtain. We are in a system of due process. It seems to me the defendants is entitled to know what is in a prosecutors file. There is plenty to convict and most defendants say i will copy of plea. But a lot of times, the prosecutor may not understand to be exculpatory because the prosecutors job is not to figure out what is good for the defense but the defense, it is very simple. We have a piece of legislation produced by ninth circuit senator mikulski, cosponsored by another since the ninth circuit senator. Six bipartisan sponsors. I am proud of our control but of course senator mikulski, it was senator stevens from alaska who suffered. Introducer the fairness disclosure of evidence act and the integrity act. To pass laws and prosecutors live by it them. If you shine a light on what is hidden in prosecutors files, then it will have a much better chance and you dont count on people being honest warfare. It is just there. That is why i suggest we have legislation pending. It should be supported and passed. Lets go to the back. Thank you. To what extent does the criminal defense bar put pressure on authorities to take this more seriously with their powers of discipline. To the extent the state bar authorities may not be very responsive what is the role of the federal District Court in disciplinary committees to actually discipline attorneys to appear before them . Judge kosinski long time ago in the Central Business did district case, attorneys for criticizing judges and attorneys in that circumstance obviously get a lot of attention from the District Court disciplinary committees but if the state bar of forties are not much help about the judge itself . That is a great point and i actually drafted the brady Compliance Order that i will upload to the web site too that include the that as one of the steps the Federal District judges can take. We tend to forget about that but federal judges can decide lawyers not set to practice in their district or their court room, they have a lot of authority to start making waves in that regard. I dont know the criminal defense bar is putting any pressure on the Bar Association at all. I have no information on that really. It took the texas court of inquiry and Michael Morton case, received a lot of these and was the subject of a book he has written. And then spent 25 years in prison accused of the murder of his wife and the prosecutor hid the bloody bandana and finance literally became a state court judge, having run his campaign on his conviction of Michael Morton. Dna on the bandana completely exonerate Michael Morgan thanks to the work of Innocence Project over a number of years. Texas bar convened a special court of inquiry that congress basically to get that done and it resulted in the state court judge being arrested in open court but he only served ten dais. If we made the penalty, if you deliberately withhold evidence, you serve the length of time in prison your victim wrongfully spent, that might nick it in the blood. But yes. What has happened is judges have a certain expectation of what the lawyers before them will do particular the prosecutors. You expect lawyers to always tell the truth and always to be entirely full square particularly if you are a government prosecutor and most judges have a hard time believing that the action is going on. They tend to be less likely to look for its tour to infer that something is misconduct. I had a case 20 years ago where the prosecutor in the court, we then the same guy foolishly argued an appeal so i asked about it and after hemming and hawing he disclosed some things that he had not told the judge. He didnt want to do it but i was pretty insistent. It turns out to be quite key and we sent the case back. You have to read a good opinion. But we sent it back to the district judge to make a decision whether to indict or dismiss with prejudice or without prejudice. The district judge, a fine of publican of pointy, it truly doesnt matter. A Serious Court judge or district judge for many years, the kids came back and he could not believe the answers i got from the prosecutor. He was so convinced that could not possibly be the answer that she didnt even ask the question or pressed the question even though this question was what happens, the judge was so shocked by it he dismissed the indictment with prejudice which means the prosecution was there all together. Most judges cant believe this is going on. I dont think they believe what is going on until they were pressed for thank you. I am afraid we have run out of time but everyone is invited to the luncheon will be having afterwards. Thank you for discussion. [applause] the cato bookstore has books