Making changes sub rosa. If the court is going to make a change that actually changes the meaning of what was initially announced it should have an obligation to make that clear with some kind of supplement. [inaudible question] thank you, professor, for your presentation and your work. I was struck most of all for the freedom of speech in a deposition of the court in Citizens United. And i believe that the criticism about the individual judges raised a more profound question, and that is the as american democracy turning into a plutocracy, is the court a reflection of that kind of change . Well, some think it is a partial cause of that kind of change. Others think it is a reflection. I think it is more complicated ultimately than that. The reason that the court rules as it does in Citizens United is not a belief in that Corporate Power and wealth should dominate our society but a belief that government cannot be trusted to decide whose voices should carry weight. It is an antigovernment decision much more than a procorporation or plutocratic decision. It is in that way somewhere between anarchy and libertarianism. It is and mistrust of government. Similarly, many of the courts decisions making it easier for businesses to prevail over individuals reflexed, as i try to show and the book, not so much a bias in favor of big business as a mistrust of litigation and of the trial process as a way of solving problems. When you focus on what it is that drives the justices, motivates them, that may give us a better idea of what kinds of questions to ask and what kind of things to look for in the background of the next set of justices who will come along when some of those who are aging and, as it were, leave the court. [inaudible question] the mistrust of the government. I think it is much more than mistrust of government than trust of Corporate Power. In fact, the court has said you can make corporations disclose fully all of their contributions instantaneously. You cant reform the structure of corporations to make it easier for shareholders to hold them to account. You can do all kinds of things. And as some of the justices pointed out in Citizens United it is the momandpop corporation, the tiny corporation, the subchapter s, not the giant publicly traded corporation that benefits from decisions like Citizens United. So the story is a lot more intricate and complicated than some big plutocracy. Thank you for your questions. [applause] thank you. [applause] like we said before, but signing here. The line will start here and go back going. [inaudible conversations] our book tv programming in prime time continues tomorrow night with segments on the run and the u. S. Reporter especial book tv programming focus is next on legal issues with Sidney Powell on her book license to lie exposing corruption in the department of justice. In a little more than an hour and a half my kirk and david fisher on u. S. Marshals inside americas most storied Law Enforcement agency. In about three hours we will look at the Supreme Court with uncertain justice, the roberts scored in the constitution. Former federal prosecutor Sidney Powell on what can be done about prosecutorial misconduct. She was at the Cato Institute to discuss her book i sent to my exposing corruption in the department of justice. This is about an hour and a half. Good afternoon and welcome to the Cato Institute. Im the director of the project on criminal justice. And today we want to examine some distressing legal trends that are at work in the criminal law area. Our guest speaker today has just written a new book entitled license to my exposing corruption in the department of justice and the book recounts several cases in which ambitious prosecutors use illegal and unethical tactics to win their cases. Before we get to the panel of experts, i want to take a minute or two to lay out a discussion that is going to follow but before i do that let me ask those that came with cell phones if you take a moment to doublecheck and make sure that they are turned off as a courtesy to our speakers. Thank you. The first point i think needs to be understood is there has been incredible growth criminal system over the past 30 years. In 1980 there were about 1500 federal prosecutors. Today there are close to 8,000. Second, theres been an explosion in the number of crimes of the book. We know there are about 4,000 federal statutes. If you take an account of the federal regulations churned out by the regulatory agencies youre talking about tens of thousands more regulations that can be enforced in the criminal system. I thought there was a telling moment of the Supreme Court a few years ago a representative from the department of justice was up before the justice and he wajustice and hewas explaining t one of the federal statutes and he was explaining the scope by one of the justices and Stephen Breyer said just the second. I think theres about 200 million americans in the workplace and according to your definition of the Honest Services criminal statute about 150 million americans fall on the wrong side of that line. And this was a point when the attorney from the Solicitor Generals Office didnt really deny the point. Now consider that for just a moment. In the eyes of the federal government we have 150 million americans that they consider to be criminals. Thats just one of the criminal statutes. Its so fast that its hard for an ordinary citizen to go about their lives without breaking some rules and regulations. Lets not make a federal case out of it, but that expression is losing its force given the growth of our federal criminal code. We also have to worry about situations where people havent violated any of the rules and regulations but nevertheless its been targeted by an unethical federal prosecutor. The businesses fail. Their families were shattered and their life savings ends up going to attorneys and law firms that are trying to defend them. As a matter of fact. These attorneys will argue that the alternative is even worse. Its too risky talking about complete bankruptcy if you dont plead guilty early in the process because the case will drag on more and more going to the attorneys and a longer jail sentence if the jury chooses to believe the prosecutor rather than their version of. So these are some of the problems the panelists will be addressing along with some specific cases. The format is going to be straightforward. The guest author is going to speak first on the thesis of the book and then introduced the guest commentators and after the remarks open up and take your questions for 15 minutes before we adjourn for the lunch upstairs. Sidney powell served in the department of justice for ten years under the attorneys that were appointed by the political parties. In the trials and appeals to other prosecutors at the attorney generals advocacy institute. She has been the lead counsel in more than 500 appeals in the federal courts and for the past 20 years shes been in private practice representing clients ranging from federal judges to international corporations. Shes been repeatedly rated by their peers by one of the lawyers in america well qualified to discuss prosecutorial ethics. Please welcome Sidney Powell. [applause] i want to thank the Cato Institute for hosting this event. Its very much appreciated and think the judge for joining us. This is a very auspicious occasion. I think im going to start with the foreword to the book written by one of the panelists who was kind enough to write that for me because the issues discussed in the book are fundamental to the fairness of the legal system. The main premise underlining the book is that prosecutors have an ethical and legal constitutional obligation to disclose evidence that is favorable to the defense. There are legal reasons the Supreme Court held that if it is a constitutional obligation fundamental to do process. And then as a practical matter prosecutors have all the cards. They are with the representatives of the agents, Police Officers are the first people on the scene if there is an immediate crime. They want control of the evidence an and and of the furte extent of the expert witnesses. And in the case 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 more like a legal thriller. I wanted people to be able to read it who are not attorneys and for attorneys also to find it interesting and to be held by so that you can continue reading all of it, but it is all true. One person recently asked me if i had and i wished giving me 10 leeway to and i wish for the sake of making it interesting and i said i hate to tell you i actually toned it down. Its not an alleged. Robert jackson was one of our great Supreme Court justices and as the attorney general, he gave a speech if a first come in 1940 that has been enshrined in legal history. He talked about the special role of the federal prosecutor and important for the prosecutor to seek justice and not convictio convictions. She has such complete control over what can happen to an individual and such broad discretion. A prosecutor can invite someone. He can have the case processed quietly and secretly or expos l. To the public. And th hi he has control over where the person goes to prison to a large extent. The government likes to say only the bureau of prisons decides that, but thats not accurate at all. The prosecutor has a lot of input in that regard, and particularly in the cases discussed in the book. Thats true. But, yet, theres no overriding supervision of prosecutors. Youll see that throughout the book also. Their discretion is virtually unbounded. We like to think of the grand jury system as being one that protects citizens, but it doesnt. Grand juries are virtually a rubber stamp for prosecutors. Theres hardly a prosecutor in the country who couldnt get an indictment against a potato out of a grand jury if thats what they wanted to do, or get a case nobuild 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 United States attorneys in three districts over a period of ten years. Used to be that judges could trust the prosecutors to tell them what the law was and get the facts straight. No u. S. Attorney i ever worked with would have tolerated for two seconds the behavior i saw that caused me to write the book. They all were adamant that we do it right, secret, that we be fair, and that we secret, be fair, and carefully exercise our discretion to prosecutor only cases we had all thed and were all the evidence and were person was guilty weapon didnt have time or interest to look for something to pin on someone. That was not our job. No u. S. Attorney i ever worked with believed that was our job. And we didnt stack counts of indictments, either. We could indict on one, two, three, maybe four offenses, assuming we had the evidence racked up to prove all of those beyond a reasonable doubt. With no question in our mines 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. I have stood in the United States court of appeals for the fifth circuit and confessed error when the trial lawyers got something wrong i would tell the fifth circuit, we screwed that up. I you one through the west law system the word botched, youll find a quote in a footnote of a decision by irving goldberg, where he quotes me as explaining that the dea agents botched it. I think that is the only time the word appears in west law. And the quote was accurate. I havent run that search in a while. Man shy do it again to see if anybody else 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 before more than 30 years. Im not going to say how many more. My youthful countenance belies that alone so ill keep that secret. But throughout my practice i have bragged on and applauded and loved fifth circuit. For it to have been given the repeated chances i gave it to correct the egregious errors in this case and not to get it right was just more than i could stand, and then when the Bar Associations for these respective lawyers also failed to do anything about it, i felt like i had to speak up. I know im not the only lawyer that has seen this kind of injustice as judge kozinski said in his dissent in United States verse olson, theres an epidemic of brady violations abroad in the land. Its a significant problem. It affects the fundamental fairness of all our proceedings and if the prosecutors can do what they did to the people discussed in this book, who are were Merrill Lynch executives, one was a United States senator, others were other business executives, all of whom had led stellar lives to the best of everyones knowledge, worked in their communities, contributed to charities, done everything right and believed in the system. To have prosecutors literally make up crimes against them and then be able to push those through the system to conviction and imprisonment, and have Federal District judges in houston and then the fifth Circuit Court of appeals not get it right, was simply heartbreaking to me. So that it why i had to write the book. I knew it had to be done by somebody with credibility. Defendants can del you about all the injustices they suffered and everybody goes, oh, well, he was a convicted felon. So i just felt like it was time that some lawyer stand up and speak out. When i did it, had no idea what the reception would be. I didnt know whether anybody would pay the slightest bit of attention or not. It turns out, people are paying attention, and so i thank each of you for being here to pay that attention to this issue. Because it is so important, and there but for the grace of god go any one of us. If they can do what they did to these people, as brendan sully ran sad said, United States senator ted stephens, they can do it to anyone. The reason i wrote it now is because we have given the legal system every chance to work, and it failed to do so the. And we also gave the Bar Associations every chance to do something about it, visavis the lawyers, and the Bar Associations did nothing. The texas bar bounced the grievance we filed against the texas lawyer like a superball. I mean, it practically came back by return mail even though it was written by bill rhodes, the coauthor of the law of lawyering and considered one of the top three legal ethics experts in the country. A 30page grievance with numerous citations to all the ethical rules and citations to cases. And definitive explanation of the facts that showed aggrievable offense, and the fifth circuit opinion which found that, yes, the prosecutor suppressed evidence favor teen the defense but it didnt matter. So, when the texas bar bounced that i thought of sending them my law license, but a number of friends urged me to continue practicing, which im not sure i can do but im still working on that possibility. Then we also filed in the new york bar against Andrew Weisman and with the d. C. Bar against katherine rumler. The dc bar swept it under the rug. The new york bar, weisman at the time was general counsel, Deputy Director of the fbi. The department of justice was defending him against the ethical charges. They kept it for about 14 months, and then without giving us notice, the new york bar punted it to the office of professional responsibility within the department of justice. Yes, you haired that right. The department of justice was defending andrew iowaman and the new york bar bunted it to the department of justice to decide. Well, you can pretty up figure out how the department of justice decided that one in less than a week the office of professional responsibility, ironically named, within the department of justice, now ironically named, dismissed the grievance. So, i finally sat down and said, okay, you either have to put up or shut up. So i decided to write the book. That is a long explanation of why and when i wrote the book, but that is the fundamental story. The book tells the story of any number of highprofile prosecutions. It tells it at the human story because i also want everyone, including judges to understand the human toll it takes when prosecutors violate their oath, the constitution, and the rules of ethics. So there is a very human story that runs throughout the book of my client in particular, some of ted stephens, and some of one of the prosecutors maybe more of the prosecutors than just one. It tells the story of the Arthur Andersen de debacle. Most everyone thought Arthur Anderson was guilty. I also thought is a start hearing about the enron disaster, i knew the ramifications on people across the country. Millions of people lost a lot of money. Some people lost all their savings. It was horrible. It was an outrage. And most of us, at least from everything that was reported in the press, assumed that everybody that had anything to do with enron was guilty. I was one of those, until i dug into the record of the Arthur Anderson case, when Arthur Anderson asked me to consult when their petition for rehearing was due the reply brief was due in the fifth circuit. So they already filed their opening brief but decided to consult additional counsel in the preparation of their reply brief. Thats when i got involved. We had 13 or 40 days to get the brief out. Fortunately mahoney was lead counsel because they to had the staff and could dive into the record. But didnt take me long to wonber i would the dime charged what it charged. The actual offense against anderson was alleged as witness tampering. Which requires an element that i couldnt figure out how they were going to prove, and then when i read the jury instructions, they had altered the prosecutors persuaded the District Court judge in houston to alter the pattern jury instructions. Pattern instructions are approved for every circuit for many criminal offenses. If you use the pattern instruction its going to be affirmed on appeal. Its already been covered. When judges deviate from the pattern instruction, i mean, 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 jury instruction is just knew there was no way anderson should have been convicted. Turns out is a dug into more the jury was out for ten days before they returned a verdict of conviction. The company, Arthur Anderson, was destroyed immediately upon indictment. They represented 2300 publicly traded companies. They had 85,000 employees worldwide. So, 85,000 jobs were destroyed. The indictment had to be sealed for a week so the sec could work behind the scenes to avoid upheaval in the market. And then once the case went to the fifth circuit, the fifth circuit affirmed without a problem, affirmed the conviction. Finally, the Supreme Court took the case, actually took it pretty quickly by all standards, and reversed it 90. Because anderson did not have fair warning that its conduct was criminal, witness tampering was not the appropriate statute to use, and their conduct wases not criminal at the time, and the jury instructions, Justice Rhenquist wrote for the unanimous court, he said it was shocking how little culpable the instructions required. They had removed all elements of criminal intent from the jury instructions. The prosecutor primarily responsible for the Arthur Anderson indictment and conviction is now the head of the Criminal Division of our department of justice. Her name is leslie caldwell. The coprosecutor in the anderson case, Andrew Weisman, became general counsel, Deputy Director of the fbi. He went on back from his days on the enron task force, after convicting anderson, they then turned their sights to the Merrill Lynch executives on wall street wanted to send a message to wall street. They viewed new york bankers as wise guys on wall street. Nothing better than mobsters in suits. Nicer suits maybe. But that was the basic attitude. It was to bring down Merrill Lynch or the Merrill Lynch executives. The destruction of anderson gave them incredible power when they win to any other organizations because merrill, for example, knew that if merrill did not cooperate fully with the prosecution, that merrill would receive the Death Penalty that Arthur Anderson had just suffered. So merrill entered into the most egregious nonprosecution agreement i have ever seen. They agreed that their employees would say nothing publicly that disagreed at all from the tasko forcesnview of the facts of the case. They agreed that ifgo the task force wanted to interview a single Merrill Lynch employee, tanks force attorney could be present. The department of Justice Task Force installed an overseer within Merrill Lynch who even reviewed the bills from the attorneys, so we had to be careful how we described what we were working on so as not to let the government know what that was. They named over 100 people as unindicted coconspirators in the enron litigation at large, which meant that everyone had to lawyer up. If their lawyers were smart at all they insisted their clients plead the fifth amendment because if you didnt and you talked and you said anything that disagreed with the governments view of the case, you were subject to indictment for personalry and obstruction of justice. Perjury and obstruction of justice. They reminded any potential witness of that threat daily. Some witnesses got calls during enronrelated trials as many as three times a day, reminding them that they faced indictment if they got on the witness stand and testified inconsistent with the governments view of the facts. Jy so the enron task forceco prosecutors, leslie caldwell, Andrew Weisman, Matthew Friedrich, shut down any access by the Merrill Lynch defendants to any defense witness. In fact our own Merrill House inHouse Counsel, Merrill Lynch 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 she 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, mr. Weisman sat directly in front of her taking notes the entire time she testified, and they didnt give us any of the brady material or evidence favorable to the defense that the constitution required we be given. In fact, they told the court repeatedly there was no brady material in this case. So the four Merrill Lynch executives were convicted by the houston jury. No surprise. Their lawyers were like deer in the headlights every time anything happened in the courtroom elm the prosecution had witnesses who were cooperating with the prosecution under plea agreements that gave them extraordinary benefits. Their witnesses were the people who had actually stolen money within enron there were definitely thieves in enron. They all testified for the government against people who had not taken any money. A District Court judge that sent Merrill Lynch defendants to prison, he said i realize you were just doing your job. The Merrill Lynch defendants did not take a penny from anyone. Merrill lynch made 775,000 on the transaction. The enron group made 53 million on the transaction. No one lost any money and there were no material misstatements to the market that would qualify as a securities fraud prosecution. So, instead, they indicted the merrill defendants under the Honest Services theory of fraud, which alleged that the Merrill Lynch defendants had conspired with andrew fastou, enrons counsel, on Honest Services. That would be havable if the four Merrill Lynch executives could not get the indictment dismissed. Did they take property or money . No. That is a traditional fraud. In fact fraud means basically stealing. Really falls under the Ten Commandments but its gotten more complicated than that. The indictment was something id never seen before. I did Expensive Research on it. Could i not find a single case in the country, from any state or federal court, that serve as precedent for making the conduct alleged in this case a criminal offense, much less a federal criminal offense. There wasnt one. No problem. Send them on off to prison. Motion to dismiss the indictment for failure to state a defense, denied. Request for bill of particulars to tell us about the crime were supposed to have committed. Denied. When the fifth circuit got our request for bail penning appeal, the government argued that there was no substantial issue for appeal. Never mind everything was wrong in the case from the indictment through the jury instructions also. In fact ive never seen so many issues in a criminal case as existed in the Merrill Lynch enron case. It would be hard to convince that into something 50 to 100 pains for the fifth circuit to decide. Usually in a criminal case youre lucky if there are one or two good issues that might warrant reversal. We had so many in this case we couldnt begin to brief them all. The fifth circuit denied bail pending appealment the district judge denied bail pends appeal though marry lynch executives had to report to prison, voluntarily surrender. The judge did allow them to go to the prison themselves to drive themselves to the prison as opposed to having them hauled from the courtroom in chains that day, which is what the government asked for, whited also asked for 24 years in prison for them. He gave them three to four years each, and allowed them to voluntarily report. All bail pending appeal motions were denied, even bail even sawing rehearing because i couldnt believe the fifth circuit wasnt going to grant them bail pending appeal, but they denied rehearing also. Six years later, fast forward. The ted stephens case has come along. Judge sullivan, very different from the judge in the Merrill Lynch enron case, actually questioned the government when it said there was no brady. He started requiring them to produce different parts of their investigatory materials and grand jury transcripts and fbi reports of witness statements, and each time they had to produce something, it showed, oh, we should have been given that before. This is favorable to the defense. To the point that Emmett Sullivan made it clear he was going to dismiss the indictment against ted stephens. At that point we had new attorney general, his name was eric holder, and he said he was going to clean up the department of justice. So he came in, i think about six weeks after he was appointed, he came in and dismissed the indictment against senator stephens in the interests of justice. I thought, hallelujah. Were going to make some Real Progress here. Now would be a good time for us to go talk to the department of justice and let them know what all has come to lying in our case come to light in our case because we had finally gotten the notes of thousands of hours of interviews of andrew fast you and he has said there was no crime in the Merrill Lynch case either. Even he had agreed there was no guarantee from enron that would have made the transsection illegal. The entire thing that the governments case was premised on, he said that didnt happen. They had proved their case only by using the hearsay testimony of fastows subordinates and he said one thing to sis subordinates subordinates and one to Merrill Lynch. So we thought that was rather significant development. He was the governments star witness against skilling and lay, and he was supposedly the guarantor that had made this transaction illegal from the getgo. We got nowhere with that, either. We did come talk to the department of justice. We were met with bristling hostility, and nobody ever responded to our allegations on the merits. So were back in the District Court, the fifth circuit finally reversed the convictions, after my client had spent it a year in prison. They reversed 12 out of 14 counts of conviction against all the merrill defendants. They acquitted young bill fuse, 32yearold assistant in Merrill Lynch, who had participated in the deal. Acquitted him completely. He had served eight months in a maximum security 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 of a camp as being. They were at least in a higher level security than that. With each level of principle security, frankly prison security frankly comes additional threats to your own personal safety because its least violent criminals in the lowest security facilities and the more violent, as you go up the ladder. My clients 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 in his bunk. There are other prison stories that are not in the book that 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 very affable guy. Theres a very poignant story in the back of some 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 people to read, which he did, teaching other inmates how to understand personal finances. He even had his wife send him materials to explain to them how to open a bank account when they got out, how to manage basic household needs and budgeting, things like that. Hi said the prison system itself is a farce when it comes to rehabilitation or education for people. Theres another story, another heartwarming story from his prison i will leave to your reading in the book also. After they were released from prison and after judge sullivan had dismissed the stephens indictment, third team of prosecutors finally produced to us evidence that accidentally they well, they didnt really know they gave me a disk. They didnt know what was on the disc. I mean, they knew there were documents on the disc, obviously, but didnt realize the significance of those documents. They gave me a disc that contained yellow highlighting by the original prosecutors of evidence that was favorable to the defense that they had personally identified as favorable to the defense, before the first trial. And they had omitted the key words and information from that when they gave us a very limited summary of what the actual participants in the transaction had said. One of the statements was just flatout false and misleading in the summary that katherine rumler, who became chief white House Counsel and only left recently, had signed. She said jeff mcmahan, who as treasureer of enron at the time had also given a guarantee to the Merrill Lynch defendants and he said he did not recall in the fourline summary they gave us of his statements. Turns out there were multiple pages of his statements to multiple federal agents that consistently said, mcmahan said there was no guarantee. And that mcmahan also said he was participating in the fastou phone call that was so crucial to the case and fastou did not give a guarantee either. So here we had evidence that both purported guarantors, the only alleged crime in the case, both alleged guarantors, who despised each other, agreed long before, before the case was indicted there was never a guarantee made to the Merrill Lynch executives in this case. So, four Merrill Lynch executives spent a year in prison on an indictment that made up a crime while the prosecutors had yellow highlighted and hid the evidence from the firsthand participants that said there was no criminal activity in this case at all. And those prosecutors became chief white House Counsel, general counsel, Deputy Director of the fbi, Matthew Friedrich became they acting attorney general for the Criminal Division under the prior administration, who rushed to indict senator ted stephens and unseated the longest serving republican in the United States senate, only to have that indictment dismissed after stephens lost his senate seat, for the same kind of with holding evidence that happened in the marry lynch enron case. What can we do about this . The good news is there are things thatoy un can be done. I try to remind everyone is a speak on radio, we even have to remind ourselves there is a presumption of innocence. Everyone is entitled to a presumption of innocence. We all think that once somebody is indicted, of course they did it. A grand jury found probable cause to believe they did it. We just think that somebody indicted, got to be guilty. We have to remindcw our oursel, everyone is entitle to the presumption of innocence and the government must prove guilt beyond a reasonable doubt. By competent evidence, and they must be held accountable when they do not produce evidence favorable to the defense. So what can we do in that regard . Judges can enter what is called brady compliance orders, requiring the government to produce that evidence on a set schedule so that defendants have it in time to prepare for their defense, which is what the Supreme Court requires. Judges are now starting to do that more often. Judge Emma Sullivan started doing that after the report of the investigation. He he required came out and it was identified that because he had not entered a specific order, the prosecutors could not be prosecuted for contempt. They could have been disbarred so the Bar Associations must be commanded to step up and deal with that. Im hoping that there is a public outcry in response to the book, to urge Bar Associations to be more responsible, and i know that theres going to be legislation introduced soon, called the prosecutorial integrity act, that should receive bipartisan support. There was an effort upon the publication of the report on the stephens investigation that judge sullivan had ordered, a bipartisan effort started by senator lisa mruczkowski from alaska. I received support across the board. The aclu, the National Chamber of commerce, the National Association of defense lawyers, the american Bar Association, every state Bar Association i read about. Everyone, every Major Legal Organization in the country supported the fairness and disclosure of evidence act. The only group i know of that opposed it were the federal prosecutions and are now ironically named department of justice. A theres going to be an effort integrity act whichcw3 carriesy requirements on government and attaches penalties to for not producing. So im urging everyone to support that legislation and that means getting more active about contacting your congressman and senators and urging them to do something about it. If judges will start entering brady compliance orders and start reversing criminal convictions, which i guess is what its going to take to get their attention, referring things to the Bar Association, with a letter just demanding action on it, and citizens start serving on juries with an idea of a single juror can stop an unjust criminal conviction and you can tell if the judge is running a railroad in his courtroom or not. Some do run railroads. Youll see the juxtaposition of the judge in houston and the judge in the stephens case in the book and it is very distinct and unmistakable, the difference two Judicial Attitudes can make. And then we have onlines like judge kozinski. It wouldnt take long to clean up the system if everyone did their part. Thank you. [applause] thank you, sidney. Were now going to turn to our guest commentators and o our first commentator is well qualified to address the subject of prosecutorial misconduct because over the course of his career he has served in the executive branch, the legislative branch, private practice, and now academia, presently the dean of the university of Baltimore School of law before that he was appoint by president obama to a highranking position within the department of justice. 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 matters before the congress. Earlier in his career he served as the chief counsel to senator harry reid and before that chief counsel to senator ted kennedy. He actually began his career as an assistant District Attorney in new york city, seeso he also brings prosecutorial experience to our discussion. So please become, mr. Ron weich. [applause] id like to thank tim for that introduction, and thank the Cato Institute for inviting me to be here. These are very important issues that sidney has raised in her book and im very pleased to be part of the discussion. These are issues that should be aired. I want to start by commending Sidney Powell for writing this book. I said to her that there are lots of lawyers who see injustice in matters they have handled and they deal with it by going out and having a drink, and what sidney has done in writing this book, is taking her passion for justice and putting it out there for the world to see as a judge, and it requires great discipline to write a book like this. Its a very detailed book. 400 pages, me and deserves great credit for bringing her concerns to a wider audience. Having said that, i want to say that my reaction to the book is somewhat mixed. I think that there are overall themes in the book that i agree with. And ill speak about those, and i think deserves great credit for highlighting those things and publicizing the problems in the criminal justice system. At the same time i find her indime, if you will, of the prosecutors in the case she handled, the prosecution of mr. Brown, to be ultimately uncon veining unconvincing. Let me speak first about thele overall theme is very much agree with. Sidney highlights in the book and her opening remarks here the tremendous power of prosecutors. The frighteningly unilateral, almost Unchecked Authority of individual prosecutors to ruin somebodys life, just as jackson wrote about the obligation of prosecutors to use that power wisely and mindful of the fact that a prosecutors obligation is not to convict but to do justice. That kind of sentiment is expressed in various engravings all over the department ofity. But sometimes those are mere words and there are abuses. Before we get to individual abuses, let me say that in general, i think that prosecutors, prosecutors ive seen in my career, both at the state level and federal level, are generally honorable. I think its possible to paint with too broad a brush in understanding this problem to be sure there are abuses and they have been found and documented, but in my experience, many, many prosecutors are honorable men and women who seek to do justice in the public interest. Nobody is getting rich being a prosecutor. They do it because they believe its the right thing to do, and its commendable work for those who do it well. That said i did say the power of a prosecutor is scary, even if not abused. Just the judgment that individual prosecutors get to make. I graduated from law school at 24 years old, and i was in the manhattan d. A. s office and i had the ability because new york state has a system at the time had a system of predicate felony laws, maintainedder to minimums, that enabled me to decide if someone was going to prison for a period of time because kyrie fuse to allow a plea to a lower grade offense, and i was disturbed by that. I had the power, and i didnt think i should have the power, and i had supervisors and colleagues who i could talk to and rely upon but. Maltly i felt i had too much power, and as i went on in the District Attorneys office and gained more perfect i was disturbed enough by it to leave the office and go into a policy role. Later in the career i was at the Justice Department and again i saw prosecutors who i felt had too much power, and some of them were overzealous in economy exercising the power. What i think needs to happen, the reforms sidney mentioned, are absolutely on target. Needs to be more checks. Internal checks and external checks on individual prosecutors exercise of discretion. Nobody should have unilateral power of essentially life or death of individuals. A second theme i very much agree with, sidney eyelights the issue of unduly lengthy sentences. The cases she talk about are white collar cases, but throughout the criminal justice system, drug cases, child pornography cases, where theyre been such an hit hysteria about the unfortunate conduct that people go to prison for decade for viewing certain materials and in white collar case, individuals who suffered the worst punishment in the world they day they lose their job and are forced to stand in front of a court and face the consequences, those people are then sent to prison for years, even decades, and the enron prosecution has ban documented. People, jeff skilling, a 24 year sentence. When i was in the Justice Department i received a press release and i came to realize that every single sentence that i saw was about three times too long. Nineyear sentences should have been three year sentences, and people who went to prison for a couple years, probably didnt need to be there at all. So that is disturbing. And during the initial prosecutorial hour in sentencing is the issue of mandatory sentencing, which gives prosecutors more power, more power over individuals, that judges dont have the power to check. And so efforts to fight mandatory sentencing and im very proud of my families against mandatory minimums and julia is leading an effort that is getting traction now in congress and the sentencing department. And finally a theme is prison conditions. Its high lighted in sidneys book. Her client had a fairly tough time in the year he was in prison, and other defendants everyone says the federal prison camps, club fed. Its not like that. Any deprivation of liberty is serious but the conditions and the medical care in any prison, including federal prison, are deplorable and that should be addressed. So, having said all of those good things about the book, let me say why i find sidneys central points unconvincing. She tells two stories, two cases kind of parallel to each other. One is the ted stephens prosecution, where there is no doubt that, it is welldocumented, widely accept there was prosecutorial abuse that led to a gross miscarriage of justice. The presiding judge in senator stephens trial and he ultimately appointed a lawyer to do a comprehensive independent review that documented every aspect of the misconduct. And as sydney said, attorney general holder ultimately dise missed the prosecution on his own. Sidney questions whether attorney general holder did that only abuse he knew that judge sullivan was going to do it so why not. I can tell you, i joined the justice attend depth in my Justice Department several weeks after attorney general holder made the decision. It was very, very profound for the attorney general of the United States to dismiss that prosecution, even if jump sullivan judge sullivan was going to do it on its own. For the department itself to take that step sent an Important Message to prosecutor cozy there was a serious effort to reorient prosecutors about their obligations to disclose exculpatory, socalled brady materials. So thats one story, the stephens case. The second story is about her client, jim brown, who was a Merrill Lynch executive involved in dealings with the enron corporation. Sidney alleges very serious sweeping prosecutorial misconduct in the case, and dont in any way question her sincerity, and she lays out her arguments in great detail in the book. But unlike the stephens case, where the adjudication found prosecutorial misconduct in the brown case, the adjudication found exactly the opposite. That is, the Federal District court judge predsing over the case rejected the argument. The fifth circuit, which i must say, as sydney points out, dismissed many of the count of the indictments but not all of them. Nonetheless, rejected the claimofprosecutorial misconduct, and that judgment was appealed to the fifth circuit, where a panel of independent judges rejected it. Denied the petition to take the case and then as sidney said the stepford do because of the Bar Associations that n. Gage in the 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 of what is your site of the story but we didnt get a lot of that. We knew there was an agitation that rejected the allocation and its hard and complex. It becomes very complex and its hard to judge it independently but i know that we have one side of the story. Another aspect of the book that is of concern to me is a style sydney uses as she recounts the litigation in the District Court and some extent the district and tells you what they are saying that she and practiced a kind of ridicule the arguments and the individuals making the arguments on the other side, so they were struck like a viper and could barely suppress the grand. The prosecutor she described as really stupid beyond hope. She talks about what the Justice Department supervisor the Justice Department supervisor had a smirk in the affinity for the entire she ridicules the judge that presided she never saw the judge worked so hard in the face of the contrary law to make sure the government would win the and at another point she calls the judge clueless. She questions whether they might have been equally. They leveled serious allegations that there wasnt just questionable judgment. It was the agitation to the contrary. I know one of these prosecutors. Kathy was a law firm of mine that worked closely together and they worked witi worked with hee became the white House Counsel. She was an aggressive person and ambitious person as im and many of us are in washington. She is fundamentally an honorable person and i dont believe that shes capable of the conduct that has been alleged. I dont know the other prosecutors but i fall back on an adjudication. Thats our system thats when the disputes are presented, the impartial federal judges and the protection of lifetime tenure review them. They find the review in adequate for people making that review. I still believe in our system that resolves the disputes in that way. So in the end he is known for his strong sense of justice and that comes through in his written opinions. His written opinions are so persuasive and wellconstructed that they often reverberateon his jurisdiction in the ninth circuit. Last december he shook up the legal world in case sidney mentioned, United States versus olson. Im going to read a short snippet from the case. The judge said, i wish i could say that the prosecutors unprofessionalism here is the exception, that this prosecutors propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish to the core of prosecutors around the country. But that would not be true. Brady violations have reached epidemic proportions in recent years. Just with that one paragraph, the judge started a National Conversation on this subject of prosecutorial misconduct because editorial pages, 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 here at cato many times and were glad to have him back. Please welcome, alex kozinski. [applause] thank you, tim. Always a pleasure to be here at cato. Before i start on this subject, and this book, die want to tell tout another publication and that is a piece that my law clerk and i wrote for cato, and i think, tim, you were the editor of the book. Its called you, too, are probably a federal criminal. And it picks up on tims point which is that in fact there are so many laws out there, and there many of them are so am buying use ambiguouses that chances are very good something you have done in your life, i the federal prosecutors now about it they could and they can find out a lot of things nowdays using electronic data. If they really want to focus on you, they could probably get you and probably have you behind bars in very little time. So this is a danger. The background to the point that sidney is making. I think sidney and i also acknowledge the point, very strong prosecutors, and for them to take this large body of law, this somewhat amorphous body of law, and go in for reasons maybe good, may not be good, and focus on particular individuals. That is a serious danger. Let me now talk a little bit about brady and other kinds of prosecutorial misconduct. We have both lawyers and nonlawyers in the audience who understand the significance of brady. The decision by the United States Supreme Court and the Supreme Court has come up with many decisions, miranda, brady, in terms of procedural protections for criminal defendants. And people sort of think theyre all equal. I suggest that brady is uniquely important because brady, unlike miranda, where the defendant may confess and then he wants to suppress, but he probably did it because confessed to it, its a procedural rule. But brady truly appropriates innocents. Truly protects people who have been charged with a crime, but with the government in it has in its possession evidence that if put before a jury would raise a reasonable doubt. And the reason the government has this evidence is because they have such an advantage in gathering the evidence. They know about the crime or the investigation, if its a white collar crime, long before the defendant knows theres anything going on. They have access to witnesses, access to electronic records, and once if its a violent crime, they have control of the crime scene and by the time the defendant finds out about it, that there is an investigation going on, the crime scene has been cleared and whatever was there to pick up is in the governments possession. So its extremely important, it is vital for the government, if it has evidence that is exculpatory, to give it up and make it a fair fight. Nobody is saying people should be allowed to go free who are guilty. But surely if the government knows of a piece of evidence that contradicts what their star witness says, its only fair, only appropriate, not to send somebody to prison without having the jury consider both sides. We believe in juries. We believe in 12 people acting together and thinking together, considering all the evidence, and then they find somebody guilt beyond a reasonable doubt, we can have confidence. But not giving the evidence, not giving the exculpatory evidence in the governments possession, they cant make it undermines their ability to make a fair decision. So, this is incredibly important and incredibly vital to the operating of our criminal justice system. I would say to have faith in the system, the faith ron has expressed and ashare and i think sidney shares, is based on the idea that we can actually have 12 people get all the facts, all evidence, good and bad, and then make a fair decision, and then we have the burden beyond a reasonable doubt for the government, which i is high but not insurmountable, two Million People are in jail that they all belong there. Once the government withholds evidence, once the government willfully withholds evidence that is exculpatory and get as conviction, then we can no longer be confident. Now, heres the thing about brady. How do you know that the government has exculpatory evidence . In most cases, there might be exculpatory evidence and i agree with sidney. I think most prosecutors are upright and they do not this has been my experience they do not want to get a conviction for somebody without a fair hearing and without a true finding of innocence. But always people out there who want to get ahead by cutting the corners, and of course it makes it harder for the honest prosecutors because the ones who cut corners then get promoted, get the kudos, and that is an incentive to cut corners, too. You have your own career to think about. So, it is exceedingly rare to find out that brady evidence, exculpatory evidence, has been discovered. Its important to talk about these two cases that ron has mentioned and sidney to some extent, and look at what happened in those cases and what the reaction is when the evidence i are is found. Now, in the ted stephens case, nobody has said this, but this is not a case where the justice depth came forward and said, oops, we goofed. We had exculpatory evidence. And fbi agent blew the whistle. We had a whistleblower. Fbi agent, risked his own career by pointing the fingers at Justice Department prosecutors and said, they knowingly withheld evidence, and i hope you read the book and find out i dont think ron disagrees a huge miscarriage of justice. Senator stephens should never have been indicted, convicted, and lost the election. No doubt. No doubt. If all evidence has been available to the defense, that case would not have gone to trial. Just read the book. Theres no dispute on this one. Now, the Justice Department, when they found out about this, you would think they would run away and hide. In shame. They would say oh, my god, what did we do . And if at the attorney general at that it point decided to dismiss the indictment, id be impressed. Instead they toad there and said, no big deal. They said, no big deal. This was after this was found out after senator stephens was convicted, and they wanted to hold on to the conviction. They didnt say oh, my god, this is a horrible thing we have done. We are so sorry. They said, no, we want to hold on to the conviction. Different attorney general. Right. Doesnt matter. Were not accusing administrations. Were accusing the Justice Department. I i dont care they attorney general was. The point is the Justice Department lawyers said well hold on to the conviction. Only after judge sullivan ordered an investigation and it came out that in fact this was huge misconduct that attorney general decided to dismiss. To dismiss. They are far more impressed. It had been disciplined. Nobody got fired over this. There were a few suspensions but given the enormity of what happened, this was hardly a slap on the wrist. In the brown case im not going to talk much about it because i want you to do is get the book and look at page 404. This is the evidence that was produced accidentally by the Justice Department and it shows highlighting. This wasnt highlighting but it was the highlighting that was there with the evidence given to her. There was no misconduct but what happened in that case it wasnt a big of a deal anyway. It is what is refused to the convictions and it wasnt the case when they think this is okay to withhold such as what the courts do all the time. What we tell you that i. Had ten years ago. They had walked into the United States illegally into some of the witnesses said no it was somebody else. D the vernment wheer it and the government deported most of those witnesses and the case came to us and how do you go to the witnesses . This was a corporation that supported a criminal investigation you would have them inside. Send back the witnesses. As of thso the case came upon tl to us who i respect are from the conviction. It is so blistering and excruciating that the government filed a petition for a hearing and it usually does a losing carpart in the hearing. In this case its a winning part and asked us to dismiss to reverse and vacate our opinion so they could dismiss the indictment. Ten years later, i get the same case in the same district. Theyve reported the witnesses. What happened to lopez use your software to the case. This was not a joke. Their view was if we didnt tell them youve got to this he has nhadno sense of responsibility. They did it again so we had to write an opinion saying you know what he said there in the opinion at the request is that you dont do this again. The fact of the matter is lawyers who want to go back to continue doing it unless judges do something about it. The court of appeals sit cited o this must be a good opinion and debate specifically directed tribal judge to enter compelling the government to the obligation and then in mississippi when he dismissed the indictment because of a violation it is rare and they dont come out often enough of the judges and prosecutors including the satellites are dont pick very stern action and i think that we can not have confidence in our judicial system. Thank you. [applause] before we open up and take questions im going to give Sidney Powell a few minutes if you want to respond and then we will take your questions. One of the biggest problems in the violation is a defense lawyer does not know what he does not know there is simply no way to know it so he makes it extremely difficult to uncover the violation in the first place. As additional evidence the government still didnt get the message with the dismissal of the ted stevens of indictment by the judge and need to only point you to the decisions of the id in the United States but to cases arising out of the special prosecution were busy with missing scene prosecutors for the most part it not provide the same evidence depends that they had in the stevens case and theyre the government refused to dismiss the indictment and they persuaded the District Court judge in alaska that it didnt matter in those cases because there is so much other evidence it didnt matter that they had hidden the evidence and completely undercut the governments primary witness and the district judge agreed with them like our district judge did in houston. The ninth circuit reversed unlike the fifth circuit and said yes it certainly didnt matter and judge Eddie Fletcher wrote a separate concurrence beside the governments unrepentant attitude is completely unacceptable and she would have completely dismissed the indictment and the majority of the panel simply remanded for a new trial and i think im not sure what happened in both cases they may have entered to the substantially lesser offensive. But no i dont think the Justice Department learned anything from that and i can also tell you the government is still trying to alter the ethical rules and all of the states to include what is called a materiality requirement and whether the evidence matters were not to the defense in their initial determination and their ethical obligation as to whether they have to provide evidence or out in the first place. And if they are allowed to decide what matters to the defense, we are in very big trouble because to them anything contrary to their view is said with a wink or a nod that literally uses that language within stevens and in the Merrill Lynch cases that if the defendant said something thats completely excretory organ other witness did it was said with a wink and a nod or in the stevens case to cover it it really wasnt true and anything inculpatory of course works to their benefit so everything works to the governments benefit thereby its not material to the defense. So we have to have ethical rules that require the evidence and thats why we need the prosecutorial integrity act to produce all evidence. If you even have to ask the question whether it should be produced it should be produced. Just give it to them. Thats the only way to ensure that the trial is fair. In terms of the credibility or the accuracy of the material thi am uploading all of the supporting documents and websites called icings to law. Com and you will be able to look at the actual documents themselves and if we could get a full investigation after the brown case. The prosecutor was going to look into the department of justice if we could have gotten the emails and the rest of the evidence they still say its not their. I wonder if she would do the same. Please wait for the microphone to get to you so everyone can hear your question and identify yourself and any affiliation you have and keep your questions brief so we can get to as as many questions as possible. Yes, sir. Ive been puzzled from day number one why in the world did the Bush Department of justice indict ted stevens. I dont mean to be such a cynic but how in the world did that happen . They wouldnt be weighing in on the merits of the prosecution i guess, i wasnt there but there was a cause to investigate and proceed as we know now and withheld evidence that would have been very helpful to senator stevens. He should not have been indicted and convicted. She shouldnt have lost his sentence but the Bush Administration didnt invite the Attorneys Office in alaska and the Public Integrity section responsible for bringing it meant. I think the fact that senator stevens was indicted speaks well for the system that the republican Justice Administration led by the president invites a very powerful senate so in principle it speaks well that the politics do not and should not play the role in bringing the prosecution. Thats why toomey it doesnt matter who the attorney general was. It is the withholding of evidence that is afoot and i dont believe that was political. I dont believe they wanted to get a republican senator i think they were withholding evidence because they wanted to win the case. Thank you very much for what youve done. Very simple question. What you have described could describe any common variety behind the iron curtain and there were good reasons why people didnt speak up. But i would like to know if we had have a change in the administration and if we get an administration which does truly want to cleanup how is it going to get rid of the Civil Servants who are entrenched in the Justice Department and how is it going to end sure that the judges some of whom may in fact make their decisions based on political criteria that they follow the law . They cant do anything in particular about the judges other than making sure that in their new political appointments they end principle that judges the importance of following the rules and questioned them about their view and things like that. But in terms of the new attorney general making changes com, the projects on the 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. Attorney general holder refuses to release even the names of the prosecutors. The stevens prosecutors that were found guilty by his investigation of intentional misconduct are still in the department as assistant United States attorney. One of them served one day of a suspension according to the report and otherwise they appealed the rulings and of course the internal review process and the department depat watereddown the findings in its own report and i forgot what level it found them responsible for this one was assessed at 40 days and one was at 14 day suspension and one of them served one day of the suspension otherwise its been appealed to since lost in the quagmire of the Justice Department. I think a new attorney general could make a clear first of all regardless of the Civil Service i would fire them all tomorrow and let the civil section litigates the propriety of the findings is necessary. I think it is unacceptable for anyone who has to responsibility and privilege of walking into the courtroom standing in front of a federal judge saying i represent the United States of america it is unacceptable for them to lie to the court or the jury were withholding evidence and i that they would be gone in five minutes. Another one of these tactics that is shocking and the judge touched on this its the way in which the trial is supposed to happen as he calls his witnesses and supports his case and the defense gets to call their witnesses to establish their side of the story and when prosecutorthenprosecutors get wh the defense witnesses are going to be then they kind of quietly approached these witnesses and threatened them with prosecution if they agreed to testify for somebody heading for trial. We learned from the book this is more common. Did it happen in the 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 . All of the defense lawyers were screaming about it. Jeff mcmahon the notes of whose interviews we finally got with all of the yellow highlighted exculpatory information he was president of multiple times a day for being invited in the transaction on which the entire activity depended. It turns out that was during the trial and the calls intensified to keep them off the witness stand. He was never in thy good so my colleague served a year in prison for a transaction that was perfectly lawful and for which he was never in thy good at making of a guarantee that they served a year in prison for having done. And we knew when we got the highlighted notes why they didnt have any participate in the trial they only have the subordinates. That tactic is very common. My name is janice and i was given a sentence in the city of alexandria court. It was suspended. The judges in the Virginia State boards are all patting each other on the back and basically there is nowhere to go. I have gone everywhere. I asked for a trial by jury to jury to be allowed to go in front of the grand jury and instead of myself and my witnesses were kidnapped into another courtroom and denied access to a grand jury and the different judges have been taken out of the file. I have a rough box that is open for the panel. You have to have a question. What can we do to get the government or somebody that is armslength to look into cases like this. Where do you go . Snake thats basically why i had to write the book. [inaudible] North Carolina had the prosecution you all remember the case in the duke lacrosse case who eventually was disbarred and North Carolina went further and passed a statute or the discovery basically the prosecutor has identified a key has to turn the final over and that seems fair. This is not par by ambush. We are not behind the ire curtain in the system of du
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