Posts tagged ‘Martha Stewart’

Things I Did Not Know About Compelled Testimony

Ken White at Popehat offers some useful insight to non-lawyers among us about compelled testimony (in the context of the Louis Lerner/IRS saga)

Some people have argued that Lois Lerner should be compelled to testify, either by court order or by grant of immunity. Lerner and her lawyers would love that, as it would make prosecuting her for any suspected wrongdoing incredibly difficult.

Compelled testimony is radioactive. If a witness is compelled to testify, in any subsequent proceeding against them the government has a heavy burden to prove that no part of the prosecution is derived from the compelled testimony, which is treated as immunized. This is called theKastigar doctrine:

"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

If I read this right, if the House were to compel her to testify, they might as well grant her immunity and be done with it.

Further on in the post, Ken points out an issue that I have been wondering about myself -- Those who want Lerner to testify are concerned with government arbitrary abuse of power for political purposes.  Given that, how can these same folks have any doubt as to why Lerner might plead the Fifth in front of a hostile and partisan House committee

I've been seeing a lot of comments to the effect of "why should Lois Lerner take the Fifth if she has nothing to hide?" Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.

You take the Fifth because the government can't be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn't do anything wrong your statements can be used as building blocks indishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like "why take the Fifth if you have nothing to hide", then you're either an idiot or a dishonest partisan hack.

If you want to get bent out of shape about something, you are welcome to wonder why Lerner is being investigated, apparently, by the hyper-partisan civil rights division of Justice rather than the public integrity section.  That, combined with President Obama's pre-judging of the DOJ's conclusions, is more of a red flag than Lerner's taking the Fifth.

Remember, Martha Stewart did not go to jail for securities fraud of any sort.  She went to jail for statements she made during the government investigation.

Shut Up

Good advice from Popehat

Hence, the government’s chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they’ve got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.

You think this is an improbable scenario? You think I’m talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I’m encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I’ve seen it in a dozen cases, and heard about it from colleagues across the country. It’s now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.

The lesson — other than that criminal justice often has little to do with actual justice — is this: for God’s sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on “just clearing this one thing up.” Demand to talk to a lawyer before talking to the cops. Every time.

Read it all.  He explains how easy it is to fall into this trap, and how even non-material statements get spun as felonies.   Remember, Martha Stewart went to the slammer for lying to investigators, not for stock fraud or insider trading.

Justice, Rich and Poor

Ken at Popehat has some good thoughts, prompted by the dropping of the rape case against Dominique Strauss-Kahn.

The critical narrative holds that this case shows that the rich and the powerful are above the law. I’m not so sure. I don’t believe the DA took this route because he was afraid to prosecute a rich and powerful man, or as a favor to rich and powerful forces behind the curtain. But there’s no doubt that money and power get you a vastly better chance of this result. They get it because rich and powerful people can field a team of lawyers and investigators to find problems with the case. Those problems are often there — but usually the defendants don’t have the money to hire teams of people to find them. The rich and the powerful draw media attention, which leads to people coming forward with information that might not otherwise come out. Sometimes this hurts the defense, but just as often it yields critical impeachment evidence about prosecution witnesses. Perversely, this case shows how wealth and power and lead prosecutors to discover flaws in their own case. Most rape cases wouldn’t get anywhere near the police and prosecutorial scrutiny that this one did. But the police and the DA knew they were under the spotlight, and knew that Strauss-Kahn could field a serious team, and devoted vast resources to the case — resources that revealed issues that might never have been discovered in a rape case against the poor and the obscure.

Why decry the quality of justice that the rich and powerful get, when we could decry the level of justice that the poor get? The justice that the rich and powerful get illustrates how the system can meticulously test the adequacy of evidence against an accused. Why not try to raise every defendant closer to that level, rather than suggest that we ought to tear down the adequate justice available to the few? Believe me, the government lovesthat narrative — loves it when people view a vigorous and thorough defense as some sort of scam to be scorned. Resentment of the justice that Strauss-Kahn can afford is the government’s weapon, which it wields to get you to accept steadily less and less justice in every other case.

I am sure there are situations where the rich get a special break, but anyone who wants to argue that they systematically get off easier has to explain Martha Stewart, who went to jail not for insider trading by lying to the police, a charge no street hustler would ever be brought to court on.  And how about Barry Bonds, on whom the full force of and resources of the US Government is focused for a crime I can find going on in about any Gold's Gym in the country.

The imbalance of wealth and power are on the prosecution side, and politicians trying to get elected propose laws constantly to increase this imbalance.  The rich have the resources to stand up to this onslaught, the poor often do not.

Carlos Miller Wins His Appeal

Photographer Carlos Miller of Miami, and a blogger I really enjoy reading, won his appeal of his criminal conviction (here and here).  Some of the details are important to bloggers:

A three-judge panel determined there were errors both in my conviction and my sentencing. The panel reversed both with directions for me to be tried again before a different judge.

In other words, they realized that Judge Jose L. Fernandez allowed his personal bias to affect my trial, including in how he allowed the prosecutor to use my blog against me "“ even though I did not even launch the blog until after my arrest "“ and how he allowed those blog postings to affect my sentencing.

The charge was effectively one of taking pictures of police in public, a perfectly legal and Constitutionally-protected activity that many police have none-the-less convinced themselves should be illegal, so they treat it as such.  The actual charge was "resisting arrest without violence," perhaps the most abusable statute on record.   Especially when there is no underlying illegal activity for the arrest in the first place.  In effect, if a police officer hassles someone for no reason, the citizen responds verbally that the officer is out of line - boom, "resisting arrest without violence." It's amazing one can be convicted of this without there being any underlying crime justifying the arrest, but I guess Martha Stewart went to jail for lying to the police about something that turned out not to be a crime as well.

In this particular  case, the Judge made this outrageous statement to Miller during sentencing:

I can't imagine why you thought this situation was worth getting arrested for. I can't imagine for the life of me.

I don't know if you think you're some kind of hero or something like that, but if you want to see a hero, go visit Arlington. All right? I don't think any of those people that are back here are those people that are giving you the "” the thumbs up on your blog.

If I were to sentence you to jail, none of those people would volunteer to go in there to serve the time with you. They might say they would, but I guarantee you they wouldn't. I'm shocked at your lack of remorse.

Miller gets double extra style points for defending himself through this whole process, and managing to win a victory at appeals when fewer than 1 in 15 trained attorneys are able to do so.

Thoughts on Barry Bonds

I really don't like Barry Bonds.   I found his home run chase last summer almost painful, and was happy it was over just to stop hearing about Barry Bonds.

That being said, I am pretty non-plussed by his recent indictment on perjury charges.  I really am deeply concerned about going after high-profile people on perjury charges, particularly ones that are associated with cases where no underlying crime was even prosecuted (Martha Stewart and Bill Clinton also come to mind in this category).

The problem is that these cases get prosecuted incredibly selectively.  The vast, vast majority of people in Bonds situation never get prosecuted, much less have four year investigations.  As a result, it is pretty clear that those who do are selected on some basis having more to do with their profile (Martha Stewart), political animus (Bill Clinton) or just because the person is incredibly unsympathetic (e.g. Bonds).  As evidence for this in Bond's case, where are the similar investigations into McGwire or Giambi?

Tom Kirkendall has a great roundup of posts for those who are more concerned that titillated by Bond's indictment.  Or then there is TJIC's take, which is always, uh, not moderate:

What I find most amazing about cases like this, and the Martha
Stewart thing, is that there's some sort of unstated presupposition
that the state has a right to extract information from people.

Lying to government officials on fishing expeditions isn't just a right; it's a duty.

Beware of Prosecutors

Beware of prosecutors:  they don't like to lose.  Scooter Libby today became at least the third high-profile person in recent memory to be successfully prosecuted for lying about something that wasn't a crime. 

Bill Clinton, Martha Stewart, and Scooter Libby were all prosecuted for perjury charges that were really tangential to the original case.  In all three cases, prosecutors, hot to not be left empty-handed when pursuing a high-profile target, fell back on prosecuting perjury charges related to non-crimes once their core case fell apart.  Only Bill Clinton escaped jail, escaping with what was effectively jury nullification -- no one seems to deny he was guilty of perjury, but his jury (the Senate) couldn't bring itself to impose a ridiculously harsh penalty for lying about something entirely unrelated to any crime and which in a reasonable world would not even have been allowable questioning under oath. 

Those Sophisticated Europeans

I honestly thought this was a gag at first.  Those sophisticated Europeans, who are supposedly so much more protective of civil rights and privacy and the like than we neanderthals in the US, are requiring that Spanish executives register details of their sex life with the government:

SPANISH business leaders are being told they have to declare any illicit love affairs - to the stock market.

In an attempt to crack down on insider trading, the directors of
companies quoted on Spain's stock exchange will have to come clean, on
a twice-yearly basis, about anyone with whom they are having an
"affectionate relationship"...

Company directors must also provide information about their wives or
husbands and family, but it is the idea of a "lovers' register" - in
which bosses could have to admit to having affairs or out themselves as
gay - which has sparked reactions ranging from disbelief to fury among
businessmen.

Ricard Fornesa, the president of the huge La Caixa savings bank, described the legislation as "laughable".

A spokesman for another leading Spanish financial house - who would
not be named - was outraged, saying: "If I had a lover, which I don't,
would they expect me to admit it? What next? I get a call from someone
who has found out saying "˜pay me money or I tell your wife'. It's
stupid and it's ludicrous."

I don't think this even requires comment.  Some of course will have nothing to do with it or will remain silent.  Knowing a few Spanish gentlemen, though, I wonder if there will be some who will have the tendency to exaggerate and tack on names.  I would be tempted to submit a list of all the wives of male Congressmen.  I guess I should start working on my submission in case this approach is adopted by the SEC.  Lets see now ... Paris Hilton, the Olsen twins, Laura Bush, Maria Shriver, Martha Stewart, Lassie, the Little Mermaid, ...

Hat tip to Overlawyered.

They Feel Safer, but I Feel Wealthier

The Onion reports that "Americans Feel Safer with Martha Stewart in Jail":

"When I found out [Stewart] was behind a 10-foot-thick concrete wall, I heaved a huge sigh of relief," said Daniel McAllen, a jeweler from Newark, NJ. "If she were on the streets, who knows what sort of business maneuvering she'd be up to behind closed doors?"

"I have a family to think of," McAllen added.

Boston-area teacher Helen Greene said she had been "afraid to leave the house" before the verdict in Stewart's trial was announced.

LOL.  Well, if they feel safer, I feel wealthier.  Last weekend, my wife read something in a Martha Stewart magazine that sent her off reorganizing her closet.  By the end of the weekend, I had bought over 400 identical wooden hangers (hint: get them from Ikea, they are half the price there as anywhere else) and a variety of other organizing gear.  Thank god Martha is in the slam so that maybe now, my weekends can be more peaceful.