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May 1999 RICO Report By Barry Tarlow
The author wishes to thank Blair Berk and Shereen Charlick, members of his firm, for their invaluable assistance in the preparation of this column. In Memoriam — Ben Margolis Our profession and our nation recently lost a valued and committed advocate of individual rights and liberties. Ben Margolis was a famed civil rights attorney who devoted many of his 88 years to defending disadvantaged and otherwise persecuted individuals in Southern California, and throughout the country. In 1944, Margolis won a reversal for 22 mostly Mexican-American men convicted in the “Sleepy Lagoon” murder trial that culminated in the Zoot Suit Riots in Los Angeles. Only three years after moving to Los Angeles from Northern California, Margolis had agreed to represent the Hispanic young men convicted of the murder of 21-year-old Jose Diaz, found beaten to death at a pond in Bell Gardens, California. A popular song at the time, “Sleepy Lagoon,” portrayed the defendants to the community prior to trial as dangerous gang members. During trial, the defendants were denied access to showers and clean clothes, and throughout trial were isolated in a “prisoner’s box.” They were prevented from communicating with their counsel during trial. In a landmark ruling, Margolis not only secured reversal of all 22 convictions, but established for the first time the right of a defendant to unimpaired access to counsel during a criminal trial. People v. Zamora, 66 Cal. App. 3d 166 (1944). Raised by ardent socialists who fled the persecution of Jews in their home country of Russia, Margolis was known throughout his career as one the country’s most vigorous and aggressive champions of civil rights. He was perhaps best known for his defense of the First Amendment on behalf of those in Hollywood accused of communism by the House Un-American Activities Committee (HUAC) in the late 1940s. Ben Margolis became the lead attorney for a group of 13 Communist Party leaders in Los Angeles prosecuted under the Smith Act of 1940, the law that made it a crime to “knowingly or willfully” advocate or abet the violent overthrow of the government or to belong to any group that encouraged such action. Not surprisingly, Margolis agreed to assist the defendants after many prominent lawyers had turned the case down for fear of taint. Most visibly, Margolis represented the “Hollywood Ten,” a group of feature film directors, writers and producers cited for contempt of Congress and sent to federal prison for not cooperating in 1945 congressional hearings whose ostensible purpose was to investigate subversive and “un-American” activities. Margolis was invaluable to communicating the plight of the “Ten” to the world. He was highly respected for his keen sense of constitutional issues, while feared for his militant and uncompromising stance. Prior to his own appearance before the House Committee in 1952, Margolis issued a fiery statement that he would “. . . fry in hell before they get any information out of me about my clients.” How times — or lawyers — seem to have changed! At the hearings, he did not hesitate to point out the decidedly un-American tenor of the proceedings. Margolis also represented Oleta O’Connor Yates, a leader of the Communist Party in California, before the United States Supreme Court. Yates had been sentenced to a year in jail for contempt of court after refusing to testify at a 1952 trial of alleged West Coast communists charged with advocating the violent overthrow of the United States government. Margolis convinced the Supreme Court to set aside Yates’ sentence. Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064 (1957). Following the McCarthy era, Margolis continued to set new precedents in the areas of sexual harassment and housing discrimination. As recently as the 1980s, he authored a highly regarded legal strategy against sub-standard housing through the representation of tenants taking slumlords to court. In addition, he volunteered countless hours of representation to the American Civil Liberties Union of Southern California, as well as being a valued mentor and role model to many civil rights and criminal lawyers across the land. The legal profession has lost a true hero. He is sorely missed. Literally Correct Answers and an Expanding Definition of Perjury For reasons not having anything to do with the President or the Congress, but rather with a recent surprising decision of a district court in the Eastern District of Kentucky, affirmed by the Sixth Circuit, we revisit the standards for obtaining a perjury conviction when the statement made by a witness was not actually false. In 1993, the United States Supreme Court’s decision in Bronston v. United States, 409 U.S. 352, 93 S. Ct. 595 (1973), set a strict standard relating to the application of the perjury statute when “...a witness succeeds in derailing the questioner — so long as the witness speaks the truth.” Id., 409 U.S. at 352, citing United States v. Wall, 371 F.2d 398, 403 (6th Cir. 1967); United States v. Slutzky, 79 F.2d 504, 506 (3d Cir. 1935); Galanos v. United States, 49 F.2d 898, 912 (6th Cir. 1931); United States v. Cobert, 227 F. Supp. 915, 921 (S.D. Cal. 1964). Bronston, a petitioner in a bankruptcy proceeding, was charged and convicted of perjury based upon the following questions and answers: Q: Do you have any bank accounts in Swiss banks, Mr. Bronston? A: No, sir. Q: Have you ever? A: The company had an account there for about six months in Zurich. The federal perjury statute, 18 U.S.C. § 1621, confines the offense of perjury to the witness who “willfully. . . states . . . any material matter which he does not believe to be true.” In Bronston, the witness’ answer to a crucial question was clearly not responsive and, in fact, was most likely intended to evade and to falsely suggest that there was never a personal bank account. However, the perjury statute has historically not been interpreted by the courts to criminalize statements that merely imply any material matter that is not true. Bronston, 409 U.S. at 356. It is instructive to compare the federal perjury statute (18 U.S.C. § 1621) with the more liberal standards applicable to criminally fraudulent (18 U.S.C. § 1001 et seq.) or extortionate statements (18 U.S.C. § 872 et seq.). In contrast to the perjury statute, Congress clearly stated its desire to punish the intentional creation of false impressions by a selection of “literally true representations”; Congress, in passing the statute, reasoned that because the actor generally is the one to select and arrange these representations as opposed to responding to questions posed by someone else, the literally true answer can be fraudulently intended and therefore criminally liable. See, A.L.I. Model Penal Code 208.20, Comment (Tent. Draft No. 6, 1957, p. 124). Historically, however, courts have been reluctant to place the responsibility on the witness and not the interrogator to ensure that answers are responsive and not evasive. As stated by the Supreme Court in Bronston, “if a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark to flush out the whole truth with the tools of adversary examination.” Bronston, 409 U.S. at 359. Welcome to the Sixth Circuit Court of Appeal panel sitting in Lexington, Kentucky, where the Honorable Gerald E. Rosen, sitting by designation from the Eastern District of Michigan, has ruled that a person may be found guilty of perjury where he gives testimony which, “from the context of the questioning and circumstances surrounding the investigation” can reasonably be inferred to be knowingly untruthful and intentionally misleading, even though the specific question to which the response is given may itself be truthful. United States v. DeZarn, 157 F.3d 1042 (6th Cir. 1998). The DeZarn case arose from political fund raising activities of a group of active and retired officers of the Kentucky National Guard which included Robert DeZarn. Funds were collected from active officers supporting Republican Brereton Jones’ gubernatorial campaign at a “Preakness Party” held at one of the officer’s homes in May of 1990. Sixty guests attended the May 1990 party, and the gubernatorial candidate Jones made a short speech. DeZarn, one of the hosts of the party, admitted in his trial testimony that he collected contributions for Jones’ campaign at that 1990 party. A year later, in June 1991, another party was held at the same house and DeZarn also attended. This was a small dinner party, with only six guests. The party was purely social and for the purpose of watching the Belmont Stakes on television. No campaign contributions were collected and no other active guardsmen attended. After Brereton Jones was successfully elected governor in November 1991, DeZarn was appointed Adjutant General of the Kentucky National Guard. Shortly thereafter he placed many of those participating in the original fundraiser on a Selective Retention Board, a review board which rules on eligibility for retirement and decisions on retention of National Guard officers. In the following year, an unusually large number of officers were “non-retained” and forced out of the National Guard. Those who were required to leave closely corresponded to the officers who had not supported Brereton in the election and therefore not participated in the National Guardsmen-hosted 1990 Preakness party. During the investigation of allegations by some of the dismissed officers claiming that they had been unjustly released from the National Guard, DeZarn was interviewed about what he knew. He was questioned under oath as follows: Q: Okay, sir. My question is going to deal with General Wellman, though. Was it traditional for General Wellman to hold parties at his home and invite guardsmen to attend? A: [by DeZarn] Well, I suppose you could say that for a number of years that going back to the late fifties, he’s done this on occasion. Q: Okay. In 1991, and I recognize this is in the period that you were retired, he held the Preakness Party at his home. Were you aware of that? A: Yes. Q: Did you attend? A: Yes. *** Q: Okay. Sir, was that a political fund raising activity? A: Absolutely not. Q: Okay. Did then Lieutenant Governor Jones, was he in attendance at the party? A: I knew he was invited. I don’t remember if he made an appearance or not. Q: Alright, sir. You said it was not a political fund raising activity. Were there any contributions to Governor Jones’ campaign made at that activity? A: I don’t know. Q: Okay. You did not see any, though? A: No.
At trial, DeZarn repeatedly challenged the indictment, arguing that it was insufficient to charge him with perjury because when he was asked about a Preakness Party in 1991 as opposed to 1990, he gave literally truthful answers about the 1991 dinner party. DeZarn testified in his own behalf that by mistakenly setting the questions in his interview about the Preakness Party in 1991, rather than 1990, the interrogator led him to answer the questions with reference to the 1991 dinner party, which was not a fundraiser and at which he did not collect any contributions. After his conviction, DeZarn appealed on the same basis, arguing that the statements upon which the indictment was based were literally true and therefore could not serve as a legitimate basis for a charge of perjury. The DeZarn panel strained mightily to distinguish the answers given in response to the fund raising questions from those given regarding the bank account in Bronston. Finding that the Bronston court’s decision was premised upon a factual scenario in which a “non-responsive” answer was given, the DeZarn panel held that the “literal truth” defense raised in Bronston was inapplicable in this Sixth Circuit case. Finding that DeZarn had given “unequivocal and directly and fully responsive answers to the questions asked by the army investigator,” the panel concluded that there was more than ample context and evidence to test the meaning and falsity of DeZarn’s answers. Although the panel acknowledged that there was a mistaken premise as to the questions asked, namely about a fund raising party in 1991 which was subjectively intended by the questioner to refer to the fundraiser in 1990, the court determined DeZarn was obligated to decide what the accurate meaning of the question was. As strange as this sounds, there is some prior unhelpful authority out of the Eighth Circuit holding that a defendant has such a mind-reading duty. See United States v. Robbins, 997 F.2d 390, 395 (8th Cir), cert. denied, 510 U.S. 948 (1993). In Robbins, the defendant testified in a bankruptcy proceeding related to a corporation he formed to buy a motel named “MacArthur and 11th Properties, Inc.” The questioner in the bankruptcy proceeding mistakenly asked, “What is Eleventh and Meridian?” And the defendant answered: “I do not know what that Eleventh and Meridian is. There is a company called Eleventh and MacArthur.” When it turned out that there was neither a company in existence named Eleventh and Meridian nor Eleventh and MacArthur, Robbins was charged and convicted of perjury for denying that either of those companies had any assets, when he in fact knew that the company MacArthur and 11th Properties, Inc. did have assets. 977 F.2d at 395. In Robbins, the Eighth Circuit ruled that: “Absent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of the declarant’s answer is for the jury.” However, in Robbins, it was the defendant and not the questioner who injected the “Eleventh and MacArthur” corporation into the questioning, thereby misstating that supposition in order to give a factually accurate answer which did not implicate the defendant. In DeZarn, the defendant played no role in the mistaken supposition and instead simply answered truthfully to the question which was asked. The reasoning of DeZarn is both anomalous and erratic. The DeZarn panel seems to recognize that where a question is truly ambiguous or affirmatively misleads the witness, it cannot support a perjury conviction. However, the panel concludes that where it can be shown from the context of the question and the state of the witness’ knowledge that the witness clearly knew what the question meant, the government should be allowed to go forward on a perjury charge. Id. at 1049. While this rationale may be superficially appealing, it is simply unworkable in most interrogation or litigation contexts. It also appears to be inconsistent with the principles established in Bronston. It is not the responsibility of the witness to guess at what is intended by the interrogator. Witnesses are normally instructed to answer questions directly and concisely. It is also not the obligation of a witness to guide an inept interrogator to factual matter that may be harmful to the witness. The DeZarn decision appears to place the witness at risk — if he or she subjectively misinterprets the state of mind of the interrogator and gives a literally true answer. This expansion of the traditional definition of perjury is both unwise and unnecessary. Criminal Malpractice: A Disturbing Trend While there are certainly meritless malpractice allegations raised by dissatisfied former clients, it is also apparent that some criminal defendants do not receive the legal representation to which they are entitled. A disturbing trend has emerged in criminal defendants’ malpractice suits against attorneys. In some states these former defendants turned plaintiffs must demonstrate “actual innocence” of the underlying crimes to recover in the civil courthouse. While some argue that this requirement offers protection to the defense lawyer, it imposes an almost insurmountable obstacle to relief for wronged criminal defendants, and provides no incentive for some attorneys to fulfill even the most basic legal obligations to clients. This growing trend is popularly referred to as the “actual innocence” requirement, imposed by a majority of states deciding whether and when criminal defendants can sue their defense lawyers for malfeasance. What is most troubling is its blithe fashioning out of whole judicial cloth (or “public policy” as these courts call it), the legal fictions required to sustain the “actual innocence requirement,” and the hypocritical pretense that this promotes representation of indigents. Currently in California, Illinois, New York, Massachusetts, Alaska, Oregon and Florida (subject to conflicting decisions), a criminal defendant who seeks civil damages against his defense lawyer for negligent representation (or worse), must prove by a preponderance of the evidence, that he is either “actually innocent” of the criminal charges, or that he has succeeded post-conviction in setting aside the guilty verdict, as a prerequisite to any recovery. See, e.g., Wiley v. San Diego, 19 Cal. 4th 532 (1998); Kramer v. Dirksen, 695 N.E.2d 1288, 1290 (Ill. Ct. App. 1998); Carmel v. Lunney, 70 N.Y.2d 169, 173 (1987); Glenn v. Aiken, 569 N.E.2d 783, 785 (Mass. 1991); Shaw v. Dept. of Admin., PDA, 816 P.2d 1358 (Alaska 1991); Rowe v. Schreiber, No. 97-1997 (Fl. Ct. App. October 14, 1998); but see, Martin v. Pafford 583 So.2d 736, 738 (Fla. Ct. App. 1991). Rather than requiring a demonstration of “actual innocence,” some courts simply require that “the defendant’s conviction has been reversed . . . on appeal or through post conviction relief, or [that] the person otherwise has been exonerated.” See Adkins v. Dixon, 482 S.E.2d 797, 801 (Va 1997); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995); v. Adolf, 691 S.W. 498, 503-04 (Mo. App. 1985); Morgano v. Smith, 879 P.2d 735, 738-39 (Nev. 1994); Bailey v. Tucker, 621 A.2d 108, 112, 115 (Pa. 1993); Stevens v. Bispham, 851 P.2d 556, 561-566 (Or. 1993); Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987); Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo. App. 1986);State ex rel. O’Blennis v. Adolf, 691 S.W. 498, 503-04 (Mo. App. 1985); see also Heck v. Humphrey, 512 U.S. 477, 486-487 (1994) [post-conviction relief is a condition precedent to a claim for damages under 42 U.S.C. § 1983 for unconstitutional conviction or imprisonment]. In 1974, when Justices Otto Kaus and Ronald Mallen published what has been referred to as a seminal commentary on this subject, there was a virtual “dearth of criminal malpractice litigation” — the authors could only point to a handful of such reported cases nationwide. See Kaus & Mallen, The Misguiding Hand of Counsel – Reflections on ‘Criminal Malpractice’ 21 U.C.L.A. L. Rev. 1191, 1193 (1974). Today, at least according to the courts addressing these issues, there is an “ever-rising tide of professional negligence actions generally.” See, Wiley 19 Cal. 4th at 674. Of course, no statistical evidence is cited to support this claim nor is there evidence that this “ever rising tide of professional negligence actions” is not, at least in part, a justified response to poor representation. The most troublesome aspect of this “actual innocence” requirement lies in its origins rather than its substance — it was created by judicial fiat with the interested jurisdictions simply adopting it based upon “public policy” notwithstanding the fact that the professional malpractice statutes contain no such requirement. These public policy justifications are generally set forth in a 1991 decision by the Supreme Judicial Court of Massachusetts in Glenn v. Aiken, 569 N.E. 2d 783. There, while the supreme court reversed the lower court’s grant of summary judgment in favor of the defendant attorney, it imposed the previously nonexistent requirement that Glenn demonstrate “actual innocence” by a preponderance of the evidence, to recover. Glenn’s conviction for arson had been reversed due to a patently erroneous jury charge given without defense objection, which permitted the jury to convict him of arson based upon mere negligence. Upon remand, the Commonwealth chose not to retry Glenn who had already served 14 months in prison. Id. at 783-85. He then sued his lawyer for malpractice. The trial court granted summary judgment against plaintiff Glenn because his criminal trial judge submitted an affidavit stating that he would have given the same jury charge notwithstanding any objection by counsel. Id. The Supreme Judicial Court criticized the inappropriate affidavit filed by the judge, prohibited probing “a judge’s mental processes” subsequent to the trial, and reversed the summary judgment. Id. at 786. In remanding for trial, however, the court concluded that Glenn had the burden of proving his innocence of the arson charges at trial (though it did not require an allegation of innocence in the complaint to survive a motion to dismiss, see id. at 785). Id. at 786. In imposing the “actual innocence” requirement, the Glenn court relied upon the differing “public policy considerations in criminal malpractice actions.” Id. at 787. Much of this rationale does not comport with either sound legal analysis or common sense. According to Glenn, the “underpinnings of common law tort liability, compensation and deterrence do not support a rule that allows recovery to one who is guilty of the underlying criminal charge,” because “a person who is guilty need not be compensated for what happened to him as a result of his former attorney’s negligence.” Id. at 788. To do so would “reward[] him indirectly for his crime.” Id. Glenn also notes that no monetary incentives are required to ensure adequate performance for criminal lawyers, as they are for all other professionals, because “[t]he possibility that a criminal defendant may not be guilty provides a sufficient, general deterrent against negligent conduct of defense counsel . . . .” Id. And, of course, the icing on the Glenn cake was the “public policy consideration” in “encouraging the representation of [indigent] criminal defendants” which the “actual innocence” rule promotes. Id. at 788. In this manner, Glenn justified grafting an additional element onto the civil malpractice statute without resort to the legislative process and provided the superficially appealing but unpersuasive rationales adopted by virtually every other court imposing this judicial rule. It is significant, however, that Glenn v. Aiken did not decide the question of whether or not proof of “actual innocence” was required when “a clear act of negligence of defense counsel was obviously the cause of the defendant’s conviction,” and noted as an example, where “a defendant attorney failed to assert a clearly valid defense of the statute of limitations.” Glenn, 569 N.E.2d at 786-87. Glenn noted that it “need not decide [that] point because the case before us does not involve clear negligence whose causal connection to the conviction is clear.” Id. at 787. Thus, presumably and appropriately, that issue remained open. At the same time that the Glenn opinion was issued, an appellate court in Florida decided this issue differently. Relying upon the malpractice statute as enacted, a Florida appeals court held in Martin v. Pafford, 583 So.2d 736, 738 (Fla. Ct. App. 1991), that not only was there was “no basis . . . to await the outcome of [the collateral relief] proceeding in order to initiate [] suit for malpractice,” id. at 738, but in fact, “Martin was not required to have succeeded in obtaining collateral relief from her criminal conviction before she could civilly sue her attorney for malpractice.” Id. (emphasis added). In Martin, this issue was addressed in the context of a statute of limitations claim with the court ruling that the statute of limitations began to accrue when the criminal defendant/plaintiff discovers the harm – not when a petition for collateral relief was granted. Quite logically, the Martin court ruled that the “redressable harm occurred when claimant was convicted, sent to prison and her appeal was affirmed.” Id. at 738. There, unfortunately, the former defendant/plaintiff waited too long – she had learned of the malpractice from another attorney years earlier, and the court of appeals found that the statute of limitations began to accrue as of the date the new attorney rendered the advice. Id. at 738. However, of late, Martin has not been followed in Florida. In Rowe v. Schreiber, No. 97-1997 (Fl. Ct. App. October 14, 1998), a different Florida appeals court adopted the reasoning set forth in the Massachusetts decision, Glenn v. Aiken, 569 N.E. 2d 783, stating summarily that guilty defendants should not be compensated for what happened to them due to counsel’s negligence. Additionally, in Steele v. Kehoe, No. 96-2212 (Fl Ct App. March 20, 1998), yet another Florida appeals court similarly held that “public policy should recognize that unless a defendant is exonerated, the proximate cause of the defendant’s conviction is her or her commission of a crime and not legal malpractice.” Id. Notwithstanding Steele’s espousal of the “actual innocence” requirement and recitation of the superficial Glenn v. Aiken reasoning, it refused to apply the rule in that case. There, the crux of Steele’s malpractice suit was the allegation that his attorney promised to file Steele’s petition for collateral relief and failed to do so. Id. at *3. Steele recognized that: “[u]nder the facts of this case, the requirement of exoneration places Steele in a Catch 22 situation. Steele cannot sue his lawyer for malpractice because of the consequence of the alleged malpractice. Justice requires that some relief be provided.” Steele, 1998 Fla. App. LEXIS 2773 at *3. However, the Steele court was still loathe to permit monetary recovery; instead, it found that “unless exoneration is accomplished, a legal malpractice action would be an inadequate remedy.” Steele, 1998 Fla. App. LEXIS 2773 (emphasis added). The decision failed to mention that no one ever calls monetary damages “adequate” to compensate the quadriplegic or the grieving widow suing for their losses. In a great majority of the meritorious professional malpractice cases, money cannot possibly compensate the plaintiff, but it is well accepted as the only possible legal remedy. Nonetheless, Steele certified to the Florida Supreme Court the issue of Steele’s entitlement to a “belated hearing” to determine whether his attorney should have filed a petition for collateral relief. Id. at *7. So, in order to apply the “actual innocence” rule and assuage its judicial conscience, the Steele court not only drafted an additional element of “actual innocence” onto the civil malpractice statute, but it also mixed its apples and oranges by taking a civil suit for monetary damages and converting it into a petition for belated collateral relief from conviction. The Oregon Supreme Court provides the worst example of what happens when a court actually attempts to rationalize even a variation of the “actual innocence” rule with the normal statutory framework for professional malpractice actions. It simultaneously provides an example of why other courts have summarily imposed the rule without analysis. In Stevens v. Bispham, 316 Ore. 221 (1993), the court established as a prerequisite that former criminal defendants turned malpractice plaintiffs have “their conviction reversed, whether on appeal or through post-conviction relief, or [that] the person otherwise has been exonerated.” Id. at 230. Stevens first discussed the elements of traditional legal malpractice actions noting that the plaintiff must demonstrate the defendant’s breach of duty to plaintiff with resulting harm and a causal link established between the breach and the harm. See id. at 225. Remaining stoic in the face of the incredulous, it then decided that the criminal defendant/plaintiff is not “harmed[] in the legal sense” until the collateral relief petition is granted or the conviction set aside. Id. This notion, at a very minimum, ignores reality. See Gebhardt v. O’Rourke, 510 NW2d 900, 905 (Mich. 1994) (“[p]ersons convicted of a crime will be astonished to learn that, even if their lawyers’ negligence resulted in their being wrongly convicted and imprisoned, they were not harmed . . . .”). The Oregon Supreme Court’s rationale for imposing what can be referred to as the “no-harm without exoneration” rule is that the criminal justice system provides a myriad of “extensive statutory provisions . . . for the protection of convicted offenders” and a veritable “panoply of protections” for the accused, thus, treating these people as if they had been “harmed” “would be inappropriate.” Id. at 230. Even farther removed from reality, the Oregon Court notes that “the ability to have a conviction set aside because of the incompetence of counsel” is “a remedy uniquely available to criminally convicted persons . . .” Id. at 232, stating that “the civil litigant has no such remedy.” Id. (quoting Shaw v. State Dept. of Admin., PDA, 816 P.2d 1358 (Alaska 1991)); Carmel v. Lunney, 70 NY2d 169 (1987). Of course, the Oregon as well as Alaska and New York courts fail to note that the standards for a criminal defendant to prevail on an ineffectiveness of counsel petition are far narrower than any ever required for ordinary professional negligence. Because many lawyers who have practiced criminal defense for any period of time have been subjected to unwarranted criticism or even frivolous malpractice allegations, it is tempting to succumb to the Glenn court’s rhetoric and preclude criminal defendants from taking such unsubstantiated actions. However, there are in fact wrongs which need redress and only naive law students and fools have any remote expectation that the criminal justice system effectively polices its own. The bottom line is that the Glenn court in Massachusetts, the Stevens court in Oregon and their followers’ reasoning is severely flawed and constitutes a blatant, undisguised and inappropriate example of “judicial activism.” First, these cases neither admit nor apologize for their wholly unauthorized, undemocratic imposition of a new element to an existing statute. See Stevens, 316 Ore. at 573 (Uris, J. concurring in the judgment) (“[t]he majority has inserted an entire procedural and substantive system into the law when the legislature did not do so, in violation of the statutory mandate to ascertain and declare what is contained in the statute and not to insert what the legislature has omitted”). There was, and is, no reason why the state legislature could not have easily added such a requirement subject to all ordinary legislative checks and balances. Simply put, it was not the job of the Supreme Judicial Court of Massachusetts or of any other court to impose an entirely new legal requirement, whether it be “actual innocence” or the exhaustion of collateral relief options (successful, of course). Additionally, judicially “enacting” this addition to legislation, under the guise of “encouraging representation of indigents” is a farce. The purpose behind these decisions is the same as that underlying ineffective assistance of counsel jurisprudence — to ensure that criminal defendants obtain no relief in this arena. The judges and justices authoring these opinions should at least be candid about their motives. There was no need to so subvert professional malpractice law. Malpractice statutes provide a cause of action for plaintiffs to sue their attending professionals, whether the lawsuit be against their doctor, their civil attorney or their criminal defense lawyer. Glenn and followers fail to realize that the civil malpractice laws provide a framework which adequately addresses the concerns expressed. First, there is no reason why the attorney/defendant could not vigorously challenge causation — that the defendant may have caused his own conviction by his criminal conduct would certainly be a strong defense. The fact that the defendant actually did the acts for which he or she was accused could also be presented in mitigation of any damage award just as with a civil plaintiff who has a preexisting injury or who would have suffered the same injury despite the malpractice of the treating professional. After all, there is a strong public policy against compensating people for what is deemed to be their own fault –however, the civil law, in application of the ordinary principles of causation and calculation of damages, already considers this. In a criminal malpractice suit, these principles, as with other malpractice suits, would be accounted for. There was no need to usurp legislative functions and fashion this new and onerous requirement. Perhaps the greatest injustice imposed by the “actual innocence” and/or the “no harm without exoneration” requirements arise in the all-too-common context of a defendant represented by the same or even different but equally negligent attorneys at all stages of the criminal and collateral proceedings. Even where the negligence is clear and (under the “no-harm without exoneration” rule, where his innocence is patent), he will be denied relief under this draconian rule. See Stevens, 316 Ore. at 253 (Uris, J., concurring in result) (according to the majority, “the cumulative effect of all of this legal malpractice is that the defendant has not even been harmed . . . .”). But of course, according to Glenn v. Aiken, just the mere possibility that a client is innocent is a strong incentive for criminal defense attorneys to perform up-to-par. However, in its rush to ensure that criminal defendants “unworthy” of financial recovery cannot do so, Glenn ignores the equal, if not greater, policy consideration: the public’s interest in ensuring, at minimum, non-negligent representation of individuals facing the most serious sanctions imposed by our government, loss of liberty or even life. The response that the criminal defense attorney will be sufficiently motivated to perform by the mere possibility that his or her client may be innocent is, again, entirely unrealistic and it also contravenes the Sixth Amendment. As Glenn fails to consider, this provides for the right to effective representation without distinction based upon guilt or innocence. The courts imposing the “actual innocence” requirement ignore the fact that once a trial has begun, at no time, does the fact finder ever make a determination of “innocence,” actual or otherwise. Defendants are found not guilty, guilty or mistried. Under the guise of tying civil relief to the criminal action, these courts employ a determination which does not exist in a criminal trial not held in Scotland. Of course, this standard does exist in the collateral relief arena and is nearly impossible for defendants to meet, especially the incarcerated and indigent. These new rules have the unanticipated consequences of wreaking havoc with ordinary statute of limitations analyses. At least in the “no harm without exoneration” jurisdictions of Alaska, New York and Oregon, the statute of limitations does not begin to accrue until the “exoneration” is complete and the criminal defendant has been “legally harmed.” See Stevens, 316 Ore. at 237. This pronouncement, however, ignores the length of time it often takes to demonstrate “actual innocence” or to be officially “exonerated.” Numerous studies, including reports authored by the Committee To Free The Innocent Imprisoned, see The Champion, January/February 1995, and even recent newspaper articles, see The New York Times, Bob Herbert, “Justice Confounded,” December 31, 1998, provide ample evidence that it often takes years (and years) to obtain “exoneration.” Indeed, the Committee To Free The Innocent Imprisoned Update contains examples of individuals, such as Rubin “Hurricane” Carter who spent 18 years in prison for a triple murder which he did not commit. In yet another recently documented example, Mr. Jeffrey Blake, freed just two months ago after being imprisoned since 1991 for Brooklyn double murders committed while Blake was not even in New York. The New York Times, Bob Herbert, “Justice Confounded,” December 31, 1998. Finally, the more fortunate former bible college student, Paul Linscott only had to serve 3_ years of wrongful imprisonment before he was “exonerated.” The Champion, RICO Report, January/February 1995. Of course, these individuals are mentioned only as several of the many examples of how long it takes to achieve “actual innocence” or its equivalent. Whether or not they ultimately brought malpractice actions, successful or otherwise, or even had valid malpractice claims, is unknown. The point to be made is that under some of the above analysis, these individuals can theoretically sue for malpractice and relitigate claims dating back almost 20 years in some instances. See also Stevens, 316 Ore. at 245 (Uris, J., concurring in the judgment) (“Statutes of limitations are designed to promote stability in the affairs of persons and to avoid the unfairness and burdens inherent in defending stale claims . . . . The . . . no-exoneration/no-harm rule interferes with those objectives.”). In response to both the Supreme Court of Oregon’s “no harm without exoneration” and the “actual innocence” standards, Justice Uris of the Oregon Supreme Court, authored a concurring opinion providing a comprehensive, thoughtful response to Glenn v. Aiken and its followers. See Stevens v. Bispham, 316 Ore. 221, 237-261 (1993) (Uris, J. concurring); see also Gebhardt v. O’Rourke, 510 NW2d 900, 905 (Mich. 1994) (“[we] do not accept the ‘no relief-no harm’ rule because it is a legal fiction with serious analytical flaws.”). And not to be too disheartened – there are jurisdictions where neither “actual innocence” nor success in post-conviction proceedings is required to sue for criminal malpractice. See, e.g., Jepson v. Stubbs, 555 SW2d 307 (Mo. 1977); McCord v. Bailey, 204 U.S. App D.C. 334 (1980); Mylar v. Wilkinson, 435 So. 2d 1237 (Ala. 1983); Bowman v. Doherty, 235 Kan. 870 (1984); Krahn v. Kinney, 43 Ohio St. 3d 103 (1989); Quick v. Swem, 390 Pa Super 118 (1989). Contra Silvers v. Brodeur 682 N.E.2d 811, 815-818 (Ind. App. 1997); Jepson v. Stubbs, 555 S.W.2d 307, 313-314 (Mo. 1977); Gebhardt v. O’Rourke, 510 N.W.2d 900, 905-907 (Mich. 1994). Unfortunately, they are dwindling and many of these decisions were predicated upon statute of limitations grounds where former criminal defendants lose (no surprise) because they have waited too long to sue their attorneys and then claim that they were waiting for final post-conviction relief. Both the “actual innocence” and the “no harm without exoneration” rules may offer small short-term comfort to criminal defense lawyers. The price, however, is too great, for it comes at the expense of an already disadvantaged group, criminal defendants, and also at the expense of judicial integrity. Neither consequence should be tolerated. Intimidation of Defense Witness A judge or prosecutor who warns a potential defense witness against perjury with the apparent aim of discouraging that witness from testifying has often been found to have deprived a criminal defendant of a Sixth Amendment right to compulsory process for obtaining witnesses. Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351 (1972)(per curiam); United States v. Morrison, 535 F.2d 223 (3d Cir.1976); United States v. Blackwell, 694 F.2d 1325 (D.C. Cir.1982). In Webb v. Texas, the trial judge admonished the defendant’s only witness, who was serving a prison sentence, that if he testified and lied under oath, “the court will personally see that your case goes to the grand jury and you will be indicted for perjury and the likelihood (sic) is that you would get convicted of perjury and that it would be stacked on to whatever you’ve already got . . . .” Id. at 94-95. Not only did the judge repeatedly admonish the defense witness about the consequences of testifying falsely and a potential perjury prosecution, the court also stated: “It will also be held against you in the penitentiary when you are up for parole and the court wants you to thoroughly understand the chances you are taking by getting on that witness stand under oath. . . .” Id. at 95-96. The Supreme Court concluded that the trial judge had “gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury” and that the judge improperly “implied that he expected [the witness] to lie. . . .” The Court held that the great disparity between the posture of the presiding judge and that of a witness in these circumstances, along with the unnecessarily strong terms used by the judge, could well have exerted such duress on the witness’s mind as to preclude him from making a free and voluntary choice whether or not to testify. Id. at 98. In United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), a federal prosecutor repeatedly told a potential defense witness during a “barrage of warnings” that her testimony might result in a perjury prosecution and could be used against her if she was prosecuted for federal drug charges. Id. at 225-26. Three of the warnings were delivered to the witness’s lawyer, and one was delivered directly to the witness during an interview. In finding a deprivation of due process and reversing Morrison’s conviction, the Third Circuit emphasized that the conduct of prosecutors, like that of a bench officer, is a significant symbol of the government’s power to prosecute offenders and indeed rose to the misconduct sanctioned by the United States Supreme Court in Webb. Id. at 228. It is in the context of these prior seminal cases that the Ninth Circuit recently reversed and remanded a federal drug conviction based on the misconduct of a federal prosecutor’s warnings to a potential defense witness’s counsel that perjury charges and a withdrawal of the witness’s plea agreement in an unrelated prosecution might occur if she testified in support of an alibi defense. United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998). Gabriel Vavages had been charged with conspiracy and possession with intention to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846 in 1996, weeks after a tribal police officer stopped a speeding automobile filled with marijuana but failed to catch the occupants. Vavages was later identified as the owner of the vehicle and indicted. After Vavages filed a notice of his intention to offer an alibi defense and disclosed the alibi witnesses, which included his common-law wife, Rosemary Manuel, along with his schoolage children, the Assistant U. S. Attorney, just prior to trial, initiated a series of contacts with the wife’s attorney about the possibility of her testifying. The prosecutor warned Manuel’s lawyer that he did not believe the alibi defense, and that if the wife testified falsely, the government “could bring perjury charges against her” and also “withdraw” from a plea agreement in the wife’s unrelated criminal case. There were a total of three or four face-to-face and telephone exchanges with the attorney, and never any direct contact with the defense witness. As a direct result of those contacts, the wife’s attorney advised her to assert her Fifth Amendment privilege against self-incrimination to avoid a perjury prosecution for what the prosecutor clearly believed would be false alibi testimony. The district court accepted a blanket invocation of the Fifth Amendment and she did not testify. Id. at 1188. Within the Ninth Circuit, a defendant must demonstrate by a preponderance of the evidence that there was “substantial government interference with the defense witness’s free and unhampered choice to testify”, to establish a violation of due process. United States v. Little, 753 F.2d 1420, 1438 (9th Cir. 1984). Writing for the panel in Vavages, Judge Cynthia Holcomb Hall held that the trial court clearly erred in finding that Vavages had not been prejudiced by the prosecutor’s substantial interference with the wife’s decision whether to testify and reversed his conviction and remanded it for retrial. In doing so, the panel emphasized that there were three aspects of the prosecutor’s conduct that were of concern. The first, was the fact that the prosecutor repeatedly articulated his belief that the wife’s alibi testimony would be false without any substantial basis in the record for believing the witness would lie. This was not a situation where the wife’s previous statements had implicated her husband, or had been inconsistent in any way with the proposed alibi testimony. See, e.g., United States v. Smith, 997 F.2d 674, 680-81 (10th Cir. 1993) (court admonition against perjury to witness who previously testified before same judge in direct contradiction of ongoing testimony ruled appropriate). Second, and more troubling to the panel, was the fact that the prosecutor also threatened to withdraw the wife’s plea agreement in her own unrelated criminal prosecution if she testified in support of her husband’s alibi. Finally, in the closing arguments of Vavages’s trial, the prosecutor contemptuously underscored the fact that no adult witness other than the defendant’s children had testified. Telling the jurors “they could have brought other people, other than cute little children” to testify was particularly outrageous given the prosecutor’s coercive threats against the wife not to testify. As stated by the court: “The inference can easily be drawn that the prosecutor intimidated a witness into refusing to testify, and capitalized on his misconduct during his closing arguments by emphasizing that witness’s failure to appear.” 151 F. 3dat 1191. However, perjury warnings by prosecutors and judges are by no means improper per se; “. . . the Sixth Amendment is not implicated every time a prosecutor or trial court offers advice regarding the penalties of perjury.” U.S. v. Davis, 974 F.2d 182 (D.C. Cir. 1992). The Vavages panel recognized that there are circumstances when warnings about the possibility and consequences of a perjury charge are even prudent. Vavages, 151 F.3d at 118. Courts recognize that “mere information or advice” does not necessarily meet the test of “substantial interference” established by the Ninth Circuit in United States v. Harlin, 539 F.2d 679, 681 (9th Cir. 1976). A defendant’s constitutional rights are implicated only where the prosecutor or trial judge employs coercive or intimidating language or tactics that substantially interfere with a defense witness’ decision whether to testify. Id. The extreme misconduct by the prosecutor in Vavages is unfortunately all too common. However, the prosecutor incorporating his handiwork into a closing argument is truly amazing. Readers are a vital source of information without which this column could not be supplied with current information on RICO developments. Information regarding developments in pending cases, decisions and interesting briefs and motions should be sent to: RICO Report Barry Tarlow 9119 Sunset Boulevard Los Angeles CA 90069 Phone (310) 278-2111 Fax (310) 550-7055 | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
