Watching The Detectives

The American Lawyer

ON THE EVENING OF MARCH 5 Michael Bromwich, the Justice Department’s inspector general, tuned into C-SPAN in his Washington, D.C., living room to catch a replay of the testimony that Federal Bureau of Investigation director Louis Freeh had given earlier that day before a House of Representatives subcommittee. It was tepid stuff. But then came a moment when Freeh was tossed a hot potato relating to Bromwich’s much-publicized investigation into claims of bad science, pro-prosecution slanting, and even fabrication of evidence at the FBI’s vaunted crime laboratory. Why, asked subcommittee chairman Harold Rogers (R-Kentucky), had the bureau suspended Dr. Frederic Whitehurst? He’s the FBI scientist turned whistle-blower whose sweeping charges against colleagues in the crime lab had spurred the inspector general’s investigation, and had proved accurate in all too many cases.

"The action that was taken against Mr. Whitehurst,’ Freeh responded, "was taken solely and directly on the basis of the recommendation [and report] of the inspector general."

The FBI director’s implication: It wasn’t our idea.

This was wrong. And the smart, intense, 43-year-old Bromwich was deeply disturbed by what he saw as an effort by the FBI to put a self-serving slant on the situation, deflecting the blame (or what many in Congress saw as a retaliation against the whistle-blower. The next day Bromwich fired off a letter to Freeh, his fellow Clinton appointee and former colleague at the elite U.S. attorney’s office in Manhattan, where both had been highly regarded prosecutors in the mid-1980s. It was-at least by Washington standards-strikingly blunt.

Her Case Against Clinton – Stronger Than Anita Hill’s Against Thomas

The American Lawyer

WHEN WILLIAM JEFFERSON CLINTON V. PAULA CORBIN JONES COMES BEFORE THE U.S. Supreme Court – as expected – in January, all eyes will be on Justice Clarence Thomas. Will a flicker of emotion crease his usually impassive glare as he ponders a she-said, he-said fact pattern so hauntingly reminiscent of his own ordeal five years ago? Will he think of how – in the words that spill like a raging torrent from Thomas’s close friend (and sometime self-appointed spokesman) Armstrong Williams – "Mrs. Clinton went out to San Francisco to present Anita Hill with the woman of the year award" ? Williams adds: "I wonder when she’s going to present an award to Paula Jones? And where is NOW? People need to see the hypocrisy here."

It was actually an American Bar Association commission on women that presented an award to Hill. But Williams has a point. Hillary Clinton spoke at the August 1992 award luncheon, celebrating Hill for having "transformed consciousness and changed history with her courageous testimony" against Thomas. Both women were hailed as heroines at that ABA convention, by a host of women lawyers and others who have shunned Jones as a pariah.

Generally overlooked, meanwhile, has been the fact that the evidence supporting Paula Jones’s allegations of predatory, if nor depraved, behavior by Bill Clinton is far stronger than the evidence supporting Anita Hill’s allegations of far less serious conduct by Clarence Thomas.

Victim Of A Ten-Year Vendetta

The American Lawyer

THE FUTURE LOOKED bright for Kenneth Treadwell as the Florida spring of 1986 melted toward summer.

So it came as "a major shock," he recalls, when he was slapped in the face with an ice-cold Miranda warning, as he walked into an interview with assistant U.S. attorney Lothar Genge and four other investigators.

Not that Treadwell hadn’t known this was serious business: Sunrise Savings and Loan Association-the client he had joined in 1984, leaving the West Palm Beach branch of Blank, Rome, Comisky & McCauley-had failed spectacularly, and been taken over by federal regulators in July 1985. The former top management was under investigation by a federal grand jury.

But Treadwell, who had been outside counsel during the critical events being probed, had been granted immunity and treated cordially by federal prosecutors during two prior interviews. He had consistently denied wrongdoing and saw himself as one of the good guys, cooperating with the investigation. Indeed, he had been kept on at Sunrise by the new, government-installed management to help with the salvage operation, winning high commendations. He was happily married, with three young children under 6 years old, and was a respected leader in his church and community.

All that seemed suddenly at risk on May 28, 1986, as the implications of that Miranda warning sunk in, and the interview proceeded. Genge bored in on some suspect transactions in mid-1984, when Treadwell was still a junior partner at Blank, Rome, helping Sunrise work out problem loans. For the first time, Treadwell recalls, the investigators evinced suspicions that he and more senior partners of the 190-lawyer, Philadelphia-based firm-right up to Marvin Comisky, the most senior partner of all-had facilitated fraud at Sunrise, the firm’s biggest client.

Guilty and Framed

The American Lawyer

Death row celebrity journalist Mumia Abu-Jamal got an unfair trial before a biased judge. His "confession" was probably fabricated by police, who may have rigged other evidence too. But he is also – probably – an unrepentant cop-killer. So what now?

You’ve probably heard about the current darling of the radical-chic crowd and the America-bashing European intellectual set: Mumia Abu-Jamal, a convicted cop killer seeking to parlay his literary and black militant credentials into a ticket off death row.

In a full-page advertisement in the August 9 New York Times, 112 writers, actors, politicians, and others declared: "There is strong reason to believe that as an outspoken critic of the Philadelphia police and the judicial and prison systems, Mumia Abu-Jamal has been sentenced to death because of his political beliefs." The signers included the likes of director Oliver Stone, actors Mike Farrell and Paul Newman, Professor Derrick Bell, and the same Norman Mailer who helped free killer-author Jack Henry Abbott, who killed again.

Cornel West compares Jamal with Martin Luther King, Jr. Jesse Jackson compares him with Nelson Mandela (who has asked that Jamal be spared). And Jamal’s book, Live from Death Row, has helped make him an international cause cÈlËbre, selling more than 50,000 copies since May.

What you would not know from such stuff is that the evidence shows that Jamal is probably an unrepentant killer, who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back.

So why the big hoo-hah about this character? Is it just the old radical conceit that any black guy who shoots a white cop can’t be all bad, especially if he is a "revolutionary" with the Black Panthers on his resume, long dreadlocks, an engaging smile, and a way with words?

Witch-Hunt or Whitewash?

The American Lawyer

There are three ways of trying to make sense of the Federal Communications Commission’s much-publicized probe into whether Rupert Murdoch’s Fox television network gulled the FCC, for nearly nine years, into overlooking the fact that 99 percent of Fox’s equity was foreign-owned, possibly in violation of federal law:

(1) The multi-lawyered Murdoch team cleverly (or perhaps unwittingly) has hidden the ball since 1985 by stressing that Murdoch (who became a U.S. citizen in 1985) would control Fox – while burying, in the moral equivalent of fine print, and in documents filed at different times that were unlikely to be read with care, some fragmentary disclosures from which a careful reader would have inferred that most of Fox’s equity would be owned by Murdoch’s Australia-based News Corp.

(2) The FCC was really dumb – or so eager to help the politically connected Murdoch crack the ABC-CBS-NBC oligopoly that it averted its eyes from awkward details-when it found in 1985 that Fox’s proposed $1.6 billion purchase of six big-city television stations complied with a stature restricting foreign ownership or control of over 25 percent of any broadcaster.

(3) The FCC is being really dumb now – if not grinding Clintonite political axes against the archconservative Murdoch and his Clinton-bashing New York Post – by harassing Murdoch for no good reason, and thereby stalling, at a critical time, his Fox network’s remarkable push toward parity with ABC, CBS and NBC.

Murdoch, Fox, their current FCC lawyers at Washington’s Hogan & Hartson, and some others are pushing hypothesis three – a theory that also draws some credence from the FCC’s peculiar handling of this investigation. "All this is another way of [FCC staffers] saying, ‘If we screwed up, it must be because you misled us,’ " says a source familiar with the investigation.

Witch-Hunt or Whitewash? – Sidebar

The American Lawyer

The question of whether Rupert Murdoch’s Fox network and its lawyers have been candid with the FCC over the past decade about the facts relating to Fox’s claimed compliance with restrictions on foreign ownership turns in part on what one supposes the FCC needed to know. In particular, did it need to know that News Corp., an Australian company, would (and does) own over 99 percent of Fox’s equity?

While stressing that they have told the FCC everything, from day one, about News Corp.’s interest in Fox, Murdoch and his men have also contended that even if the FCC somehow lost sight of the fact that News Corp.’s equity interest was above 25 percent, it’s legally irrelevant anyway. But is it?

The primary purpose of the restrictions, which date back to the Radio Acts of 1912 and 1927 and took their current form in the Communications Act of 1934, was to protect national security, especially in wartime, in part by preventing interests that might spread foreign propaganda from exercising control over any U.S. broadcaster. But both the detailed statutory provisions and the FCC’s interpretations over the past ten years have imposed broad, prophylactic restraints even on some relatively passive forms of foreign investment, arguably including noncontrolling equity interests like News Corp.’s interest in Fox.

The provision at issue in the FCC’s pending investigation of Fox, section 310(b)(4) of the Communications Act, states: "No broadcast … station license shall be granted to or held by … any corporation directly or indirectly controlled by any other corporation of which any officer or more than one-fourth of the directors are aliens … [or] more than one-fourth of the capital stock is owned of record or voted by aliens … if the commission finds that the public interest will be served by the refusal or revocation of such license." (Emphasis added.)

Too Many Clients

The American Lawyer

There is a Byzantine dance that goes on in this town," says Washington superlawyer Robert Bennett, "where the press is quick to crown you, and then they set about to tarnish the crown."

Bob Bennett-the chunky, scrappy, savvy, media-wise, onetime boys’ boxing champ; the tenacious trial lawyer with street-fighting instincts, and a lust for the limelight; the man who has honed his press-spinning talents while stalking the Keating Five on national television in 1990 and 1991, while massaging (and, some say, subtly threatening) the Bush White House to get former Defense secretary Caspar Weinberger a Christmas Eve pardon in 1992, while helping Clark Clifford and his protege Robert Altman beat state and federal prosecutions in 1993-has discovered the fickleness of the press.

Not to mention the hazards of falling out with a high-profile client-especially when the client is Congressman Dan Rostenkowski, who clearly has legitimate grievances.

This article will show that-at a minimum-Bennett inexcusably failed to consult adequately with the then chairman of the House Ways and Means Committee before taking on the representation of President Clinton in f the Paula Jones sexual harassment case. It also tells how Bennett’s representation of Clinton provoked tensions in the Rostenkowski camp, and raised concerns in the mind of the chief prosecutor. Bennett went on television to defend his new client, the president, at the most delicate stage in the Clinton Justice Department’s deliberations over whether to indict Rostenkowski. To outsiders, it looked like the president’s lawyer would now be lobbying the Justice Department on behalf of the congressman- who just happened to be a key ally in the administration’s push for comprehensive health insurance.

Sleazy In Seattle

Discovery is the bread and butter of most big-firm litigators. But the most important and ethically sensitive decisions the make-choosing when and how to avoid disclosing damming evidence to adversaries-are almost always veiled in secrecy. Now an anonymous whistle-blower in a case near Seattle has helped give as a revealing glimpse into how litigators reconcile their duties to be zealous advocates with their duties not to be whores. It’s not a pretty picture and it involves one of Seattle’s largest and most prestigious firms.

The covered-up corporate document that the whistle-blower leaked in March 1990 led to an agreement this January by Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp. to pay $325000 in sactions for discovery abuse, one of the largest such awards ever. By misleading its adversaries to avoid producing damning documents in its client’s files, Bogle provided a textbox example of the need for discovery reforms even more far-reaching than those that were adopted last year by the federal judiciary-reforms that are still under attack in Congress. (On which more below.)

What prompted the settlement was a unanimous Washington Supreme Court decision last September 16, and the prospect of an evidentiary hearing on remand that would have made Bogle’s conduct look even worse than it looks in the court’s sternly worded opinion.

The seven justices held that Bogle & Gates and its client, a British-owned pharmaceutical company with U.S. headquarters near Rochester, had used "misleading" discovery responses to hide two I "smoking gun documents" from lawyers for a 3-year-old girl who suffered permanent brain damage as a result of taking a i Fisons asthma drug in 1986, as well as from lawyers for the girl’s pediatrician, who had filed a cross-claim against Fisons.

Euthanasia Puts Its Best Foot Forward

The American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1984 as part of a special issue imagining what the legal world might look like in 2009.

Lawrence Robbins had to stretch to find support in Supreme Court precedent., but he made the most of the facts in the Court’s second active-euthanasia case involving Alzheimer’s disease. The lawyer put the monkey on the justices’ backs at the February 4 argument in Madison v. California by implicitly floating this question:

What would you have done differently if you had found yourself in my client’s position?

Robbins seemed 10 have at least four votes leaning his way throughout – Chief Justice Kathleen Sullivan and Justices Ruth Bader Ginsburg, Jose Cabranes, and Webster Hubbell. California attorney general Jim Sutton and amicus Richard Taranto, representing the National Association of Attorneys General, got a friendly reception from Justice Antonin Scalia, Clarence Thomas, Frank Easterbrook, and J. Harvie Wilkinson III. That left Justice Sandra Day O’Connor once again seeming 10 relish her role as noncommittal swing Vote.

Robbins pitched his argument to O’Connor from the opening sentence: "Only this Court now stands between m;, 68-year-old client. Florence Madison, and 20 years in prison for committing Iwo deeply moral acts of love – acts very much like those hypothesized by the concurrence [of O’Connor, in 2006] in Jackson v. New York.

"Eight years ago, in 2001, my client did what she had to do to prevent her husband from blowing out his brains with a shotgun: She promised to spare him the kind of wretched, lingering death that he had watched his mother endure. In exchange for his agreement to forgo suicide, she promised to help him die with dignity if and when he had declined into such a state of living death that – by his own reckoning – he would have nothing left to live for.

Sanus Inc. Bets the Company on the Blame-the-Moms Defense

American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1984 as part of a special issue imagining what the legal world might look like in 2009.

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been "caused" by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.