One of the Best Prosecutorial Misconduct Rulings You'll Ever Read
Last week, U.S. District Court Judge Cormac J. Carmey, before closing arguments, dismissed a federal prosecution against William Ruehle, former CEO of Broadcom, and another defendant charged in a stock options backdating case. He also vacated a guilty plea of a third defendant who had cooperated with the Government and done nothing wrong. The grounds: prosecutorial misconduct.
The defendants were represented by major white collar lawyers, including Brendan Sullivan of Williams & Connolly, and lawyers from Skaaden, Arps.
I just received a copy of the transcript. It's probably the strongest condemnation of prosecutorial abuse I've ever read. Any federal criminal defense lawyer reading through the list of abuses will be reminded of some of his or her clients these same things have happened to, but weren't fortunate enough to prove it. [More...]
The judge's conclusion:
BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE WITNESSES CRITICAL TO MR. RUEHLE'S DEFENSE. THE CUMULATIVE EFFECT OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND COMPROMISED THE INTEGRITY OF THE TRIAL.
TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE
TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR IMPROPERLY INFLUENCE WITNESSES. SADLY, GOVERNMENT DID SO IN THIS CASE.
MR. RUEHLE'S PRIMARY DEFENSE HERE HAS BEEN THAT HE HAD NO CRIMINAL INTENT TO VIOLATE THE SECURITIES LAWS. TO SUCCEED, IT WAS IMPERATIVE FOR MR. RUEHLE TO CALL THE THREE AVAILABLE WITNESSES WHO HAD KNOWLEDGE OF BROADCOM'S STOCK-OPTION GRANTING PRACTICES. THOSE THREE WITNESSES WERE NANCY TULLOS, THE VICE PRESIDENT OF HUMAN RESOURCES; DAVID DULL, THE GENERAL COUNSEL; AND DR. HENRY SAMUELI, COFOUNDER AND CHIEF TECHNICAL OFFICER. FOR WHATEVER REASON, THE GOVERNMENT INTIMIDATED AND IMPROPERLY INFLUENCED EACH OF THEM. (emphasis added).
The judge then delves into the specifics. The threats to cooperating witnesses that they must tell the Government's version of "the truth," insisting on a guilty plea and a $12 million forfeiture where no crime was committed, causing witnesses to be fired from their jobs, meeting with witnesses 20 times to make sure they understood the Government's truth they should tell at trial, and more. As to the cooperating witness who pleaded guilty before trial, the Judge said:
NEEDLESS TO SAY, THE GOVERNMENT'S TREATMENT OF DR. SAMUELI WAS SHAMEFUL AND CONTRARY TO AMERICAN VALUES OF DECENCY AND JUSTICE.
One of the defendants is also facing a trial in a drug case. The Court warned the Government about the evidence of prosecutorial misconduct that will be admissible, including:
FIRST, THERE WILL BE OTHER EVIDENCE OF
GOVERNMENT MISCONDUCT INTRODUCED AT THAT TRIAL, SUCH AS THE GOVERNMENT'S THREAT TO ISSUE A GRAND JURY SUBPOENA TO DR. NICHOLAS' 13-YEAR-OLD-SON AND FORCE THE BOY TO TESTIFY AGAINST HIS FATHER.
The judge acknowledges some may disagree with his ruling. He says:
I HAVE A SOLEMN OBLIGATION TO HOLD THE GOVERNMENT TO THE CONSTITUTION. I'M DOING NOTHING MORE AND NOTHING LESS. AND I ASK MY CRITICS TO PUT THEMSELVES IN THE SHOES OF THE ACCUSED.
YOU ARE CHARGED WITH SERIOUS CRIMES AND, IF CONVICTED ON THEM, YOU WILL SPEND THE REST OF YOUR LIFE IN PRISON. YOU ONLY HAVE THREE WITNESSES TO PROVE YOUR INNOCENCE AND GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED EACH ONE OF THEM. IS THAT FAIR? IS THAT JUSTICE? I SAY ABSOLUTELY NOT.
The judge concludes with quotes from Berger v. U.S. on the duty of prosecutors to do justice, not convict. If you haven't read it in a while, it's worth a minute to revisit the great language.
He then gave the attorneys a chance to comment on his ruling. They were all blown away. As one pointed out, had the judge not granted one defense witness immunity, which is seldom done, the whole story may never have come to light.
Here's Brendan Sullivan:
MR. SULLIVAN: ... I HAVE BEEN DOING THIS 42 YEARS, BUT I ADOPT HIS MOVING WORDS. I GUESS THAT WHEN I WAS A YOUNG LAWYER, I WAS NAIVE AND
I THOUGHT THAT FAIRNESS WAS ASSURED IN OUR COURTROOMS BECAUSE OUR FOUNDING FATHERS HAD DEVISED THIS MAGICAL CONSTITUTION AND THIS
18 MAGICAL BILL OF RIGHTS, AND SOMEHOW IF THE GOVERNMENT LIVED BY THAT, THAT WE WOULD ALWAYS BE JUST FINE. BUT I WAS NAIVE. I LEARNED IN SHORT ORDER THAT THE ONLY THING THAT ASSURES FAIRNESS
IN THE COURTROOM ARE JUDGES WITH COURAGE TO KEEP THEIR EYES OPEN, WATCH WHAT IS HAPPENING, KEEP AN OPEN MIND AND MAKE FAIR DECISIONS, FAIR TO BOTH SIDES.
AND, YOUR HONOR, I STAND IN AWE OF WHAT YOU HAVE DONE HERE TODAY BASED UPON THE MANY DAYS OF TEDIOUS TRIAL THAT WE HAVE SEEN.
....THE MESSAGE DELIVERED BY THIS COURT TODAY HAD BEEN HEARD 20 THROUGHOUT THE COUNTRY BY ALL WHO ENFORCE THE LAW, AND WE ARE ALL BETTER OFF AND THE SYSTEM OF JUSTICE WILL BE BETTER OFF FOR THE
COURAGE DEMONSTRATED IN THIS COURT ON THIS DATE.
The prosecutors had nothing to say other than they disagreed with the ruling.
This transcript is a keeper.
|< Whatever Happened To George Lakoff? | CA Appeals Court Rejects Roman Polanski's Motion to Dismiss Case >|