Stuart Taylor, Jr.American Lawyer – Stuart Taylor, Jr.

Watching The Detectives

Stuart Taylor, Jr.

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.

"I am writing to urge you to correct the testimony you gave during your appearance yesterday," the inspector general wrote, adding that this should be done by letter, to chairman Rogers, "as promptly as possible." Bromwich stressed that his draft report had not recommended that Whitehurst be suspended. Indeed, Bromwich added, "I expressed my opposition … over the course of more than a year when FBI representatives had repeatedly proposed firing Whitehurst or placing him on some sort of administrative leave." The FBI had gone ahead and done so not only because of the inspector general’s draft report-which balanced criticism of Whitehurst for making many "incendiary," unsubstantiated charges of perjury and fabrication with praise of his exposing of "extremely serious" deficiencies-but also because of the whistle-blower’s refusal to answer questions about whether he had leaked FBI secrets to the media. Freeh responded by acknowledging, five days later, in letters to Bromwich and Rogers, that his testimony had been "incomplete," though not deliberately so. Freeh also added a little potshot at Bromwich, implying that the inspector general’s own prior testimony had understated the problems with the credibility of Whitehurst, who is derided by many at the FBI as a nut.

While Bromwich had his facts right, his letter’s tough tone left many at the FBI smoldering. Some of his Justice Department colleagues believed-as one put it- that "he could have gotten that same retraction with a phone call, rather than a nasty letter." The letter surely gave Freeh a headache that he didn’t need, beleaguered as he had recently been by bad publicity about the crime lab, the Clinton White House’s obtaining of confidential FBI background files on leading Republicans, and other messes. And even worse, the Bromwich-Freeh correspondence predictably became public within days, generating media reports suggesting that Freeh’s acknowledgment of error was "a startling admission that deals yet another setback to the bureau’s increasingly tarnished image," in the words of the Los Angeles Times. Indeed, The Washington Times’s on-line edition headlined its story (inaccurately): "1G says Freeh lied to Congress." It quoted Senator Charles Grassley (R-Iowa), an outspoken FBI critic, accusing Freeh of "an effort to mislead" and "a damage control operation."

The public release on April 15 of Bromwich’s impressive, 517-page crime lab report generated an even bigger batch of bad headlines for the FBI. Then came his report in April faulting the FBI (and the Central Intelligence Agency) for missing opportunities to catch Soviet spy Aldrich Ames for years while Ames was betraying U.S. intelligence agents in Russia. These and other episodes over the past year have helped create a climate that prompts Bromwich to muse-with a rueful laugh-that he seems to be "the most hated man at the FBI."

They haven’t put him on the Ten Most Wanted list yet. Freeh and his top aides avoid sharp public criticism of Bromwich, and say they have "good rapport" with the former prosecutor, in the words of retiring deputy FBI director William Esposito. But John Sennett, president of the FBI Agents Association, says that Bromwich’s publicizing of his criticisms has been "unfairly harmful lo the FBI." And the FBI seems determined to fight off an aggressive bid by the inspector general for broader power to "walk over here anytime he wants, as Esposito puts it, to investigate cases of alleged misconduct by officials of the FBI. Bromwich argues that giving his 400-person office an unrestricted hunting license at the Drug Enforcement Administration and the bureau-which much prefers hunting to being hunt-ed-is essential to ensure that the powerful bureau be held to the same system of oversight to which most of the department and the government are subjected. Inspectors general are presidentially appointed, congressionally confirmed, quasi-independent watchdogs over waste, fraud, abuse, misconduct, and mismanagement at federal departments and agencies; they have a statutory obligation to report to Congress, and are to some extent seen as instruments of Congress planted in the executive branch. Bromwich claims that the current oversight system at the FBI is ineffective, citing as evidence the years during which the problems with the crime lab and the counterintelligence failures in the Ames case had festered without effective action by anyone. "The work we did on Ames and the FBI laboratory could not and would not have been done by anybody else," says Bromwich. "In both cases, the FBI’s reaction at the outset to our reviewing these matters was, in effect, ‘We don’t have a problem, and if we do, we’ll be the ones to review it.’"

FBI officials including Michael DeFeo-a respected career Justice Department prosecutor who became head of the bureau’s own, recently expanded internal watchdog unit in March-firmly reject Bromwich’s suggestions that the bureau cannot police itself and gets a free pass from Justice. And nobody bristles more at Bromwich’s dissing of "nominal DOJ supervision of the FBI" than Michael Shaheen, Jr., the proud, soft-spoken, but fiercely independent career Justice Department lawyer who started the department’s Office of Professional Responsibility (OPR) in 1975, when Bromwich was a college kid. For 22 years OPR has been the official in-house ethics watchdog over the entire department, with jurisdiction over its FBI component as well. Any extension of the jurisdiction of the 43-year-old inspector general would come at the expense of OPR and the 57-year-old Shaheen-whom Freeh went out of his way to praise, at another recent congressional hearing, at which they testified side by side, as "one of the most respected attorneys in the department and in the government."

Good Mike, Bad Mike, and Big Mike: Those are the monikers half-jokingly used by some top FBI officials to distinguish, respectively, Shabeen, Bromwich, and the (very tall) DeFeo. While Bromwich has clashed with the FBI, Shaheen is widely liked and admired there. Bromwich implies that this goes to show that Shaheen and OPR are too cozy with Freeh-and for two decades have been too cozy with the FBI-to provide the kind of tough, independent oversight necessary to ferret out misconduct and keep the bureau honest. The redoubtable Shaheen, for his part, complains that the inspector general seeks "to create the perception that there is something wrong with oversight of the FBI, when I have been doing historic, precedent-setting investigations at the FBI since he was an infant.

"It’s unfortunate," Shaheen adds in a Mississippi drawl that is softer than his carefully chosen words, "that a person who accepts an appointment with a finite jurisdiction is not satisfied with the job he agreed to. I think this confirms the view of many that he is self-aggrandizing and a self-promoter."

At one level this is a classic Washington turf war between strong-willed men-each of whom greatly underestimates the other-spiced by elements of intergenerational combat: Young, ambitious, idealistic Harvard hotshot seeks to build empire by pushing aside veteran bureaucratic survivor, who wont give up an inch of ground without a fight, and whose reputation for integrity and independence, legendary skills at self-preservation, and cultivation of allies like Freeh have helped win him protectors in Congress and outlast antagonists more powerful than Bromwich. At another level, these men and the institutions they head represent two distinct models of oversight: Bromwich’s is proactive, aggressive, exhaustive, itching to get things done, relatively responsive to Congress, relatively ready to trumpet its mission and accomplishments in the media, and relatively independent of his titular boss, the attorney general, as offices of inspector general throughout government were designed by Congress to be. Shaheen, who calls his office "the eyes and ears of the attorney general"-but who has battled at least four of the eight attorneys general at whose pleasure he has served-is more reactive. He is responsive to the attorney general’s priorities, deferential to the career bureaucracy, secretive, slow-moving, and remote from Congress and the media, excepting a handful of reporters and congressional staffers whom he knows and trusts.

The reality is that policing the FBI (and federal prosecutors) is a devilishly complicated and delicate business, especially at a time when-with more money, agents, and power than ever before, conferred over the past 15 years by a Congress bent on fighting crime and terrorism-the bureau has been buffeted by a rapid succession of front-page scandals: Ruby Ridge, Waco, "Filegate," Aldrich Ames, the crime lab mess, the botched interrogation of innocent suspect Richard Jewell in the July 1996 bombing at the Olympic Games in Atlanta, and more.

The issues of how to deal with such problems are both institutional and personal, with Good Mike and Bad Mike waging an intermittent guerrilla war so hitter as to roil the top tiers of the sprawling, 100,000-employcc Justice Department. They even argue (in separate interviews) about what the argument is about: Bromwich, frustrated by media accounts focusing less on the merits of his proposal than on his rivalry with Shaheen, claims that Shaheen is in fact "peripheral" to the inspector general’s bid for more jurisdiction over the FBI, because in Bromwich’s view, OPR-which now spends much of its time investigating alleged misconduct by Justice Department prosecutors-has not been proactive in digging for evidence of FBI malfeasance.

"They are like children getting out of the playpen," grouses one recently departed, high-level Justice Department official. "The two of them are both very frustrated over this, and it’s kind of sad to watch. When you stand back from it, this is serious business. They’ve both personalized this to the point that it’s not productive, the stir and the fuss they’ve created around this department. There’s annoyance with both of them."

Whatever virtue there may be in the Justice Department’s having two internal watchdogs, it is clearly a formula for dogfights. Is the place big enough for both of them?

IN THE BEGINNING

The history of oversight of misconduct at the Justice Department until about 1975 goes something like this: In the beginning there was nothing, and then there was Mike Shaheen. And since then, eight attorneys general have come and seven have gone, and still there is Mike Shaheen, now in an unhappy state of jurisdictional cohabitation with Mike Bromwich. "For better or worse, no other department lawyer [has] had more impact on how the institution viewed its ethical and professional obligations," wrote Jim McGee and Brian Duffy in Main Justice: The Men and Women Who Enforce the Nation’s Criminal Laws and Guard Its Liberties, a 1996 book that took a serious but refreshingly benign view of the Justice Department. Over the years, the authors pointed out, "Shaheen and his staff [had become known] as dragon slayers"; in particular, by spearheading several tough investigations of various attorneys general, Shaheen has burnished his reputation as "the in-house guarantor of the Justice Department’s integrity."

Shaheen came to the Justice Department in 1973, at the age of 32, from the improbable position of mayor of Como, Mississippi, where he was elected on a liberal, pro-civil rights platform featuring a promise to desegregate the all-white police force. He’d grown up in the same small town before leaving for Taft (a New England boarding school), Yale University, and Van-derbilt Law School; his father was a wealthy, politically influential doctor and an early advocate of desegregation. Shaheen’s first jobs at Justice were as a lawyer in the civil rights division, and then as deputy special counsel on intelligence matters. In the latter position, he helped dig up files for Senate investigators-including the "do-not-file files," from places including the basement of J. Edgar Hoover’s house-on the abuses of dirty tricks programs and FBI domestic surveillance. This experience prompted a Shaheen memo in December 1975 to attorney general Edward Levi-the former University of Chicago Law School dean whom President Ford had appointed to restore the Justice Department’s tattered reputation after the Watergate scandal-that urged tighter supervision of FBI bugging and other counterintelligence operations, which had operated virtually independent of Main Justice.

Soon thereafter, Levi presented some paperwork of his own to Shaheen. In response to concerns in Congress and elsewhere about misconduct at the Justice Department and (especially) the FBI, Levi had decided to create a new unit called the Office of Professional Responsibility, to serve as in-house ethics adviser and investigator of misconduct charges against Justice and FBI officials. Levi said he wanted Shaheen to run OPR, an idea that Shaheen initially found unappealing. "The name made it sound like a namby-pamby, cosmetic, nonsubstan-tive entity," he recalls. Still, he took the job at Levi’s insistence. "I was handed this assignment and told to do it," recalls Shaheen. "I had no prototype to work from."

Much of OPR’s early work focused on misconduct at the bureau. That included a few cases of criminal misconduct that led to the first-ever indictments of FBI officials, as well as investigations into abuses resulting from FBI agents’ getting in bed with corrupt informants, which Shaheen says has been a recurring problem over the years. About a week after Shaheen took the job, Levi assigned OPR to review allegations that some FBI officials were benefiting from the bureau’s exclusive deal with the U.S. Recording Company, its sole supplier of electronic including eavesdropping-equipment. An initial investigation by the FBI inspections division had been a whitewash. But Shaheen’s office, using carefully chosen FBI agents as investigators, uncovered sweetheart contracts and mutual back-scratching between the FBI and private companies and gross misuse of FBI resources and personnel by Hoover and other top FBI officials. Shaheen also uncovered evidence of extensive improvements to Hoover’s home at government expense, by FBI employees who were, he says, "on call day and night for this work."

In the years thereafter, big assignments came Shaheen’s way in waves. There was the 1976 probe into the FBI’s harassment of Martin Luther King, Jr., and the bureau’s investigation of his assassination. That produced a report that praised the bureau’s detective work while blasting its "disdain for the supervisory responsibilities" of the attorney general, and that faulted Main justice for its inadequate supervision of the FBI and its whistle-blower policies. Later came investigations of attorneys general Griffin Bell (ending in a clean exculpation); Benjamin Civiletti (who was sharply criticized for falsely denying that he had discussed Billy Carter’s actions on behalf of the Libyan government with President Jimmy Carter); William French Smith (who was forced to give up some questionable tax shelters, to return a $50,000 severance payment from a corporate board, and to reimburse the government $ 11,200 for giving his wife full-time personal use of a Justice Department car and driver for over a year); Edwin Meese 3d (who was faulted for various ethical lapses); and Dick Thornburgh (whose refusal to allow full OPR scrutiny of alleged misconduct of two of Thornburgh’s personal aides during a 1990 investigation prompted Shaheen to complain to Congress). Then there was Shaheen’s blistering, 161 -page 1993 report that savaged then-FBI director William Sessions for a parade of ethical violations large and small. Sessions held on to his job tenaciously in the several months thereafter, until the new president, Bill Clinton, dismissed him and replaced him with Louis Freeh in July 1993.

Taking on such high-profile targets has bolstered Shaheen’s reputation for fearlessness and independence. (Critics say that his tangles with bosses and big shots actually represent a cunning job insurance strategy, see "A Bureaucratic Power Player?" page 66.) But his office’s record of policing the Justice Department’s corps of line prosecutors-and alleged abuses of power in the pursuit of suspected criminals by rank-and-file FBI agents-is harder to gauge. That difficulty reflects the secrecy in which most of OPR’s thousands of investigations have been cloaked, in part because of the requirements of the Privacy Act, and in part because of Shaheen’s personal preference for keeping such sensitive work behind closed doors. In addition, OPR’s function has been limited to investigating, making factual findings, and assessing whether those investigated were guilty of misconduct or bad judgment; final decisions on those issues, and whether to discipline or dismiss those faulted by OPR, have always been made by other offices.

Critics, including defense lawyers-who increasingly use allegations of prosecutorial misconduct as litigating tactics-complain that there have never been effective checks on prosecutorial (or agent) misconduct, and that OPR has long been a paper tiger because it has been too small, too slow-moving, too weak in relevant expertise, and too forgiving of abuses of power by crime-fighting career law enforcement officials, who could usually avoid any discipline, even for gross misconduct, simply by retiring early. In addition, a 1992 General Accounting Office report faulted OPR for grossly inadequate documentation of its investigations and for "nor pursuing all investigative leads" in many cases, "even when little added time or effort might have been needed."

Such criticisms (hotly contested by Shaheen) were aired, though not entirely embraced, in a Washington Post series in January 1993- by the same Jim McGee who would later lionize Shaheen in Main Justice-focusing on an increasing problem of misconduct by the Justice Department’s rapidly growing corps of prosecutors around the country, as evidenced in formal opinions by federal trial judges and otherwise. One who read such criticisms of Shaheen with particular interest was Harvard law professor Philip Heymann, who was soon to become Attorney General Janet Reno’s first deputy attorney general. A criminal law specialist, he had clashed with Shaheen on various matters when Heymann was head of the Justice Department’s criminal division. In Heymann’s view, "a lack of trust-justified or not-in criminal investigators and prosecutors may be the single biggest problem of law enforcement." He did no…

"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.

"I am writing to urge you to correct the testimony you gave during your appearance yesterday," the inspector general wrote, adding that this should be done by letter, to chairman Rogers, "as promptly as possible." Bromwich stressed that his draft report had not recommended that Whitehurst be suspended. Indeed, Bromwich added, "I expressed my opposition … over the course of more than a year when FBI representatives had repeatedly proposed firing Whitehurst or placing him on some sort of administrative leave." The FBI had gone ahead and done so not only because of the inspector general’s draft report-which balanced criticism of Whitehurst for making many "incendiary," unsubstantiated charges of perjury and fabrication with praise of his exposing of "extremely serious" deficiencies-but also because of the whistle-blower’s refusal to answer questions about whether he had leaked FBI secrets to the media. Freeh responded by acknowledging, five days later, in letters to Bromwich and Rogers, that his testimony had been "incomplete," though not deliberately so. Freeh also added a little potshot at Bromwich, implying that the inspector general’s own prior testimony had understated the problems with the credibility of Whitehurst, who is derided by many at the FBI as a nut.

While Bromwich had his facts right, his letter’s tough tone left many at the FBI smoldering. Some of his Justice Department colleagues believed-as one put it- that "he could have gotten that same retraction with a phone call, rather than a nasty letter." The letter surely gave Freeh a headache that he didn’t need, beleaguered as he had recently been by bad publicity about the crime lab, the Clinton White House’s obtaining of confidential FBI background files on leading Republicans, and other messes. And even worse, the Bromwich-Freeh correspondence predictably became public within days, generating media reports suggesting that Freeh’s acknowledgment of error was "a startling admission that deals yet another setback to the bureau’s increasingly tarnished image," in the words of the Los Angeles Times. Indeed, The Washington Times’s on-line edition headlined its story (inaccurately): "1G says Freeh lied to Congress." It quoted Senator Charles Grassley (R-Iowa), an outspoken FBI critic, accusing Freeh of "an effort to mislead" and "a damage control operation."

Good Mike, Bad Mike, and Big Mike: Those are the monikers half-jokingly used by some top FBI officials to distinguish, respectively, Shabeen, Bromwich, and the (very tall) DeFeo. While Bromwich has clashed with the FBI, Shaheen is widely liked and admired there. Bromwich implies that this goes to show that Shaheen and OPR are too cozy with Freeh-and for two decades have been too cozy with the FBI-to provide the kind of tough, independent oversight necessary to ferret out misconduct and keep the bureau honest. The redoubtable Shaheen, for his part, complains that the inspector general seeks "to create the perception that there is something wrong with oversight of the FBI, when I have been doing historic, precedent-setting investigations at the FBI since he was an infant.

Whatever virtue there may be in the Justice Department’s having two internal watchdogs, it is clearly a formula for dogfights. Is the place big enough for both of them?

IN THE BEGINNING

The history of oversight of misconduct at the Justice Department until about 1975 goes something like this: In the beginning there was nothing, and then there was Mike Shaheen. And since then, eight attorneys general have come and seven have gone, and still there is Mike Shaheen, now in an unhappy state of jurisdictional cohabitation with Mike Bromwich. "For better or worse, no other department lawyer [has] had more impact on how the institution viewed its ethical and professional obligations," wrote Jim McGee and Brian Duffy in Main Justice: The Men and Women Who Enforce the Nation’s Criminal Laws and Guard Its Liberties, a 1996 book that took a serious but refreshingly benign view of the Justice Department. Over the years, the authors pointed out, "Shaheen and his staff [had become known] as dragon slayers"; in particular, by spearheading several tough investigations of various attorneys general, Shaheen has burnished his reputation as "the in-house guarantor of the Justice Department’s integrity."

Such criticisms (hotly contested by Shaheen) were aired, though not entirely embraced, in a Washington Post series in January 1993- by the same Jim McGee who would later lionize Shaheen in Main Justice-focusing on an increasing problem of misconduct by the Justice Department’s rapidly growing corps of prosecutors around the country, as evidenced in formal opinions by federal trial judges and otherwise. One who read such criticisms of Shaheen with particular interest was Harvard law professor Philip Heymann, who was soon to become Attorney General Janet Reno’s first deputy attorney general. A criminal law specialist, he had clashed with Shaheen on various matters when Heymann was head of the Justice Department’s criminal division. In Heymann’s view, "a lack of trust-justified or not-in criminal investigators and prosecutors may be the single biggest problem of law enforcement." He did not consider Shaheen to be much of a solution.

Thus began Heymann’s recruitment of Michael Bromwich, in the summer of 1993, to be Justice Department inspector general. Heymann’s plan was for OPR, which then consisted of eight lawyers and two secretaries, to be merged into the 400-person inspector general’s office; for Shaheen to be put out to pasture; and for Bromwich to take over the merged office. Bromwich wanted at least this much, if not more. Fulfillment of Bromwich’s ambitions would therefore mean ending Shaheen’s long reign.

PURVIEW AND POLITICS

The Justice Department inspector general’s office had been created by Congress in 1988, over the objections of most Justice Department officials, who did not think the department needed such a beast and considered the legislation to be, in Shaheen’s words, "the Hill’s attempt to get their foot in the door to oversee the core functions of the department, which are uniquely, constitutionally protected and within the powers of the president." As a compromise, the legislation allowed for the attorney general to preserve OPR’s role in handling the biggest matters-including alleged misconduct by prosecutors, other Justice Department lawyers, and officials of the FBI and DEA-while confining the IG and his 400 employees to auditing and policing waste, fraud, and abuse, mainly in places like the Immigration and Naturalization Service (INS). While the IG’s office had more than 100 gun-carrying, badge-carrying agents, it was initially staffed largely by people (from INS and other agencies) who got little respect from their colleagues at Main Justice and the FBI.

The first, Bush-appointed inspector general Richard Hankinson and Shaheen engaged each other in jurisdictional "blood warfare," in the words of a former Hankinson aide. Shaheen won, and remained top watchdog, thanks to rulings by then-attorney general William Barr. Shaheen did nor disguise his contempt for the new office, the very existence of which he saw as a "misapplication of resources and duplication of effort." He also saw the IG’s agents as second-raters who could not get jobs at the FBI.

But Heymann had plans to change that-in part by bringing in top talent to upgrade the place. And his intention to merge OPR into the inspector general’s office would make it easier both to ease out Shaheen and to recruit someone of Bromwich’s caliber for what would be a bigger, better, sexier job. Heymann reasoned that it made little sense to have two competing ethics watchdogs with overlapping jurisdictions. And some congressional Democrats-including Senator John Glenn (D-Ohio), a booster of inspectors general-were pressing for a merger.

By July 1993 Heymann had sold Reno-or thought he had sold her-on a plan to merge OPR into the inspector general’s office. This could theoretically he done by a stroke of the pen, without new legislation, but would in practice be of interest to various congressional barons. Bromwich, at Heymann’s urging, would become the new inspector general, a presidential appointment requiring Senate confirmation. This was a logical choice: Bromwich was a rising star, a summa cum laude graduate of Harvard College who had combined Harvard Law School with a master’s in public policy at the Kennedy School of Government (where he had been Heymann’s student years before), and who had excelled as a federal prosecutor in Manhattan, as an assistant to Iran-contra independent counsel Lawrence Walsh, and as a criminal defense lawyer and partner at the Washington office of Mayer, Brown & Platt.

Bromwich initially said no. He had aspired to be head of the criminal division, while serving on the newly elected Clinton administration’s Justice Department transition team, in 1992. He didn’t get that, and the inspector general’s office-even with OPR thrown in-seemed a lesser job. Heymann told him that he could play an important role in major internal investigations, as well as the more routine fare of the OPR and IG offices. Bromwich made a long-shot pitch for still more: He wanted to be a sort of government-wide ethics czar, picking up some or all of the functions that have been assigned to court-appointed special prosecutors by the independent counsel statute, which had lapsed in late 1992. That would have been a position with truly enormous power, and Heymann says he never considered it a serious possibility. But after meeting with Reno in July 1993, Bromwich agreed to accept nomination as inspector general. "Then they had me," he recalls with a wry grin.

Unbeknownst to Heymann and Bromwich, however, Reno harbored some doubts about the merger plan, and sent an aide to ask Shaheen in September 1993 whether he had anything to say against it. He sure did, and he detailed his arguments against the plan in a memo to Reno. One point, he recalls, was that an OPR/IG merger "would be an abdication of her prerogatives as head of the law enforcement branch of the executive," cramping the attorney general’s ability to set priorities in internal investigations; an inspector general, which Shaheen saw as "an instrument of Congress," could set his own priorities, and would not necessarily drop everything and hop to it when the attorney general wanted something investigated fast. Reno, for her part, says that "I was impressed by the argument-and I forget who made the argument first to me-that it was important that you have an entity [like OPR] that could focus on the disciplinary rules and on the ethical standards of lawyers, [which] required a specialization and a thoughtfulness." She also says that she saw merit in the argument "that you needed to separate an investigative agency [like the IG’s office] that investigated violations of the law and waste and abuse and fraud [from] somebody who said, ‘Was this prosecutorial comment made in closing argument so egregious as to amount to misconduct?’"

Then some politics intervened, spurred by some seemingly inconsequential news reports that made trouble for the Bromwich nomination on the Republican right. One identified him, misleadingly, as having been "a volunteer" in the Clinton campaign. (In fact, says Bromwich, he has never worked in any political campaign, "unless you count about six hours sitting in a room with other Clinton types brainstorming on criminal justice issues.") Other articles, in the conservative Washington Times, tagged Bromwich for his work as a prosecutor under Iran-contra independent counsel Walsh, which alone sufficed to make him suspect in the eyes of some Republicans.

Former colleagues, adversaries, and other admirers of Bromwich-including prominent Republicans like New York City mayor Rudolph Giuliani and Iran-contra defense lawyer Leonard Garment- sought to counteract this by sending letters of reference heaping praise on Bromwich as an apolitical, supremely ethical, and talented lawyer who would make an ideal inspector general. But the damage was done. Some Republicans say that they saw Bromwich at the time as a Clintonite politico, being sent to take over the critical Justice Department watchdog function from a career appointee of proven independence and integrity (Shaheen), and at a time of intense partisan dispute over Clinton’s alleged politicization of Justice. Meanwhile, Heymann, Bromwich’s sponsor, resigned in January 1994 because of difficulties working with Reno.

The hammer blow came when Senator Orrin Hatch of Utah-then the senior Republican and now the chairman of the Senate Judiciary Committee-went to bat to save Shaheen and OPR, and to clip Bromwich’s budding wings. In a February 1, 1994, letter, Hatch served notice on Reno that he would block the Bromwich nomination unless and until he got some assurance that OPR would not be put under the inspector general. Other Republicans sent me-too letters. Hatch recalls now that while he considered Bromwich "an ethical and able lawyer," he had been concerned that Heymann "was trying to help his former student and Iran-contra prosecutor Bromwich at the expense of the department’s ability independently to review conduct free from interference by political appointees. … We were one year into the administration which had fired all ninety-four United States attorneys … which had abused the FBI in the travel office investigation. All that did not speak well of [the Clintonites], and I wanted to be sure that there would be someone other than a political appointee and a Clinton campaign worker reviewing these allegations of misconduct…. Shaheen has been the only independent voice in a department which seemed at the time, and has been proven to be, essentially political."

The already scandal-plagued Clinton White House had no appetite to take on Hatch about a matter so peripheral to us major goals. And in part on the advice of Jamie Gorelick, who had by then succeeded Philip Heymann, Reno told Hatch that she would drop the merger idea. With that, the controversy over Bromwich’s nomination evaporated, and he was confirmed as inspector general without further ado, in June 1994. But "he ended up with half the job he had been hoping for," recalls a former colleague-indeed, with half the job he had initially turned down.

And still there was Shaheen, firmly entrenched at OPR and-claims one acquaintance with a critical view-gloating that he had outlasted Heymann. Reno pushed Shaheen to change some things: to start misconduct investigations without awaiting the last appeal, to finish them up even if the targets resigned, to clear up his backlog, to speed up his case processing, and to make his conclusions public more readily-all of which Shaheen has done, thanks in part to a tripling in the size of OPR since 1993, to 23 lawyers and 12 support staffers.

TURF WARS

Bromwich, meanwhile, made the most of what he calls "a real challenge in institution-building." He-spent his first two years quietly upgrading the quality of the inspector general’s office. He promoted the best people he had inherited, pushed out the worst, produced more sharply written reports on the myriad important but obscure matters that the office routinely investigates, and brought in crackerjack federal prosecutors and others from the outside for temporary stints, both to spearhead especially important investigations and to serve as his counselor-a sort of right-hand man (or woman).

Bromwich also threw himself info misconduct investigations with the passion of an ethical purist, albeit one whose ready wit dispels any aura of self-righteousness. "Mike is an incredible, by-the-book, do-the-right-thing, wear-the-white-hat sort of guy, and the idea that anybody might fall short of that standard really does outrage him, "says his former counselor John Barrett, a colleague on the Iran-contra prosecution team who is now an assistant professor at St. John’s Law School, in Queens, New York. Barrett says they spent much of their first year trying to break down the vast department’s institutional resistance to the very idea of an inspector general.

By mid-1996 some major investigations had come to impressive fruition under Bromwich’s leadership, and began making headlines. The first of these grew out of allegations that a congressional delegation had been deceived by high-ranking INS officials when it visited Miami in June 1995. In a 200-page report a year later, the inspector general found that large numbers of illegal aliens had been shipped out of the Krome Detention Facility in the Everglades just before the delegation’s visit; a smoking-gun e-mail uncovered by the investigative team described the purpose as stashing them "out of sight for cosmetic purposes." With the approval of Gore-lick and Reno, the inspector general also began to sink his teeth in 1995 into two major investigations of problems at the FBI: the alleged misconduct and mismanagement at the crime lab and the handling of the Aldrich Ames spy case. "We were trying very hard to sort of lean into the department-the FBI and everywhere else," recalls Barrett.

And then came Bromwich’s crime lab report, which he calls "good government and important government at good prices." (The cost was about $1.5 million.) The inspector general has been credited by Reno and most other Justice Department officials familiar with the report for creatively and skillfully handling a matter of enormous importance and sensitivity by detailing the problems in a way both devastating and judicious. FBI officials use conspicuously fainter praise. Deputy director William Esposito, for example, says in an interview: "I’m not saying it’s a good report or a bad report…. A lot of good things came out of it, let’s put it that way." In fact, Louis Freeh has adopted all 40 of its recommendations.

Bromwich has, in short, made the IG’s office a major player in investigating misconduct and other problems at the FBI. "Under a situation that’s not designed to make him very popular," observes Heymann, "Bromwich is producing high-quality work for the U.S. government in large amounts, investigations of whole agencies, like the crime lab investigation, which was so devastating, and so important." While Bromwich has been busy putting the inspector general’s office on the map for three years, he has also spent two of those years butting heads with OPR’s Shaheen, and with FBI officials as well, over jurisdictional issues. "He struck me as a guy on the make," recalls Shaheen when asked about their first meeting, a courtesy call by Bromwich to Shaheen’s office shortly after his confirmation in 1994. ("I don’t know what he’s talking about," responds Bromwich.)

It was a cordial meeting, according to both men, and they undertook to cooperate with each other in their shared mission. There followed a period of "peaceful co-existence" from mid-1994 into 1995, according to Barrett, Bromwich’s first counselor, who respected and worked well with OPR’s lawyers. But over time the OPR-IG relationship dissolved into a succession of increasingly bitter disagreements-and sometimes "open warfare," in the view of one of the principals-over who would get to investigate what, especially involving the succession of big, headline-making problems at the FBI. "There’s been a fight about every one of them-not just some, every one," recalls a lawyer who was close to the matter. While the IG’s and OPR’s fourth-floor offices at Main Justice are only about 100 paces apart, they seem more remote from each other than either of them (especially OPR) is from the FBI’s leadership across Pennsylvania Avenue in the J. Edgar Hoover Building.

Bromwich took some turf in November 1994, after Gorelick and Reno approved an order opening up the FBI and DEA for the first time to scrutiny by the inspector general, while limiting Shaheen’s exclusive jurisdiction to cases of alleged misconduct by Justice Department lawyers involving "their authority to investigate, litigate, or provide legal advice." The FBI and DEA were told to keep the inspector general (as well as OPR) informed of important internal investigations; Bromwich could request authority from then-deputy attorney general Gorelick’s office to take over any investigation that he thought could more credibly be done by his office. The deputy’s office was to resolve any conflicts. "It’s fair to say," says Barrett, "that everybody understood that this significantly expanded the IG office’s authority, which had always been somewhat unclear, and [which had been] very seriously resisted throughout the department." One case that would have previously gone to OPR but went to the IG under the new rules was that of Kendall Coffey, the respected U.S. attorney in Miami, who lost some of that respect when he had too much to drink one night at a strip joint and bit one of the performers on the arm. The inspector general’s office did a fast report, and Coffey resigned.

Other turf wars were fought over far larger scandals, such as the reinvestigation of the Ruby Ridge shootings; the botched interrogation of suspect Richard Jewell in the Atlanta bombing and press leaks portraying him as a weirdo who probably did it (he didn’t); and the controversy over the role of Freeh’s friend Howard Shapiro, then the FBI’s general counsel, in dealing with the Clinton White House in matters touching on various Clinton scandals. Shaheen won all three battles-in part, Bromwich complains, by preemptively taking the ball and heading downfield with it before Bromwich had had a chance to make his case for jurisdiction to the deputy’s office.

According to a former high-level Justice Department official, however, the FBI had "completely stiffed Bromwich at the outset" of the new regime supposedly created by the 1994 jurisdictional order, by telling him as little as possible about its own internal investigations. Recalls Barrett: "A seam that runs through this is the specter of the next inspector general. FBI officials would say, ‘We know that Bromwich was a prosecutor, was in federal law enforcement, but what if the next person isn’t our kind of person? What if it is a media hound or someone who’s beholden to Congress or someone who’s just not competent? What do we do if we get that kind of a bozo?’" FBI officials, too, voiced concern that inspectors general, with their reporting responsibilities to Congress, were by nature more likely to have political agendas than career officials like Shaheen. Gorelick finally had to issue a detailed supplemental order in January 1996 to force the FBI to keep the inspector general adequately informed.

Bromwich’s boldness in complaining about such matters, and in promoting his agenda in Congress and the media-not to mention his blunt correction of Freeh’s March 5 testimony about crime lab whistle- blower Whitehurst-has rankled top brass at Main Justice as well as the FBI. Indeed, Janet Reno has manifested discomfort with some of the publicity about the inspector general’s investigations. Another official faults Bromwich for "grandstanding." Suggesting that Bromwich might be motivated in part by frustration over his lack of success so far in getting larger appropriations from Congress for his office, this official says: "When you try to make the case to Congress by talking about how you need to provide more oversight over the FBI, as though it’s this can of worms, the people who live in the can are not likely to think kindly of you."

Bromwich concedes that there is "inherent tension" between his quasi-independent role as inspector general and the roles of all other top officials: "I cannot be a team player in the way others in the department can; I am not an ordinary member of the team. This is what people in the department have trouble understanding in practice if not in theory. I have a mission that requires me at times to air problems that others would prefer to pretend didn’t exist or to sweep under the rug." Noting that other Justice Department and FBI officials seek publicity for their "successes against bad guys" without being condemned as press hounds, Bromwich suggests that his modest efforts to publicize his office’s successes exposing problems at the FBI are in principle no less appropriate. And stressing that he has no press aide and seeks publicity about few matters, he adds: "When I do it, it’s because I’m proud of what we do, because I think our accomplishments are worthy of public note, and because it makes people in our organization feel good to see their hard work recognized. And I really do feel that the public has a right to know this stuff."

"THIS IS NOT PERSONAL"

Bromwich also feels that Congress has a right to know how strongly he disagrees with FBI director Freeh’s suggestion, in testimony to the House crime subcommittee in early June, that the system for policing misconduct at the FBI works pretty well. Asked about his seeming penchant for picking public arguments with Freeh, Bromwich says: "This is not personal. It’s institutional." He says that he likes and admires Freeh, who "has been a good FBI director," and that Freeh "has taken a lot of heat, much of it unfairly targeted at him, for problems that grew and festered under his predecessors, like those at the crime lab. He should be credited with stepping up to the plate and not making excuses. "The FBI, adds Bromwich, "is the premier law enforcement agency in the world, but its not perfect; it’s got problems."

He detailed how to target some of those problems in a June 10 letter to the House crime subcommittee, urging that the IG’s office should have "more broad-ranging authority to conduct investigations into allegations of misconduct lodged against FBI personnel." The 1994 Reno-Gorelick jurisdictional order was "flawed," he wrote, because it requires him to "obtain the explicit approval of the deputy attorney general to initiate any investigation" of alleged misconduct at the FBI.

This June 10 letter caused as much grousing about Bromwich at high levels of Main Justice-especially among aides to the recently departed Gorelick, who were still running the deputy’s office-as Bromwich’s March 6 letter correcting Freeh had caused at the FBI. Officials were especially peeved that Bromwich had not consulted Janet Reno or anyone else in the chain of command before going to Congress and attacking Reno’s own 1994 jurisdictional order as falling short of allowing "meaningful executive branch oversight" of FBI misconduct matters. Even the rather detached Reno says, "I’m not quite sure what Bromwich [was] doing with this letter." Asked if she was upset with him, she says no, and stresses that Bromwich "is thoughtful and objective and independent … and his thoughts are very helpful." But, she adds, "I think he could be more effective if he wanted to achieve his goal [of increased jurisdiction.]" One Reno subordinate says that "it’s kind of odd to go first to the Hill when the attorney general could do it with one pass of the pen." Another lawyer close to the matter says: "He did a good and correct job on the lab, and instead of just doing that, he tried to use it to leverage more resources…. This is about enlarging his fiefdom and reducing somebody else’s."

Bromwich says that after careful reflection he had decided that "I did not want to negotiate this letter," because Congress should have the undiluted views of the congressionally accountable inspector general: "I was concerned that if I began discussions about the letter, I would end up with people telling me not to send it, which would have created a dilemma for me. Given my institutional position, I thought it was cleaner and simpler for everyone concerned for me to send the letter without prior consultation." He adds that an effort to spur reasoned debate over how to oversee the FBI is no mere turf war, and that the merits of his argument should not be eclipsed by criticisms of his unvarnished presentation. And indeed, even Freeh himself has called the FBI "potentially the most dangerous agency in the country if we are not scrutinized carefully." The issue Bromwich wants to debate is who should be doing the scrutinizing, given what he calls "a history in the department of going easy on itself and on its own people… striving primarily to protect their own."

He is not alone in arguing that FBI officials and agents cannot always be trusted to police one another, either in internal investigations or in those run by OPR’s Shaheen. It is a sign of the times, observes Heymann, that even Reader’s Digest published an article in August with the headline, "Can We Trust the FBI?" Heymann adds, "I am sixty-four years old, and I can’t remember a time when law enforcement was more questioned and less trusted."

And while a crime-obsessed Congress continues to increase the law enforcement budget, the FBI has been taking heat across the political spectrum, from conservative Republicans as well as liberal Democrats, for alleged abuses of its vast power. Senator Grassley told Freeh at a June 4 hearing: "I came to Washington with a great deal of respect for the FBI…. And most Americans have the image of the FBI as very good, beyond reproach, the untouchables. The FBI has cultivated that image…. But serious problems with the crime lab punctured that image, also Ruby Ridge and Waco have. Beyond the veneer is an ugly culture of arrogance that uses disinformation, intimidation, empire building to get what it wants…. It resists oversight by an independent body."

History shows that there is a whole class of cases in which FBI agents might be deterred by loyalty or fear or institutional bias from doing an objective job, and in which external oversight is also critical. The aftermath of the August 1992 Ruby Ridge shootings-including the killing by an FBI sharpshooter of a housewife with her baby in her arms-is a prime example. According to a Senate Judiciary subcommittee’s report, after extensive hearings in late 1995, the five successive FBI reports of internal investigations of the episode "are variously contradictory, inaccurate, and biased. They demonstrate a reluctance on the part of the FBI initially to take the incidents at Ruby Ridge seriously, and to investigate itself with the same degree of thoroughness and skepticism that the FBI brings to its other investigations…. The FBI accorded its own agents undue deference. Their stories were accepted at face value and were only rarely the subject of probing inquiry. FBI agents conducting the reviews vigorously pursued exculpatory leads while passing over inculpatory evidence…. Rather than attempting to uncover and resolve any discrepancies, FBI agents avoided uncomfortable facts [and] coddled [their own people]."

Aside from this "institutional bias," the report pointed out that FBI agents conducting the internal reviews were not properly insulated from the subjects of the review. Friends had reviewed friends’ conduct; subjects of the reviews had ended up sitting on the promotion boards of the same agents who had reviewed their conduct.

Amid such criticisms, Freeh has doubled the size of the FBI’s internal OPR (not to be confused with Shaheen’s Justice Department OPR), from 30 to 60, and brought in highly regarded career Justice Department prosecutor Michael DeFeo to run it. Bromwich sees this both as an implicit admission that FBI/OPR was broken before and as an effort to preempt independent oversight by the inspector general’s office by suggesting that it is unnecessary now. But external oversight will be necessary no matter how good DeFeo is, according to Bromwich, because it is FBI agents who staff DeFeo’s (and Shaheen’s) investigations of their colleagues’ alleged misconduct. "There is the inherent tendency and inclination to go easy on your own, particularly if they are your friends and colleagues, or friends of your colleagues," says Bromwich. "I think that is simply human nature and the nature of an institution like the FBI. The inspector general’s office has its own gun-carrying, badge carrying agents…. And we can give FBI agents who have despaired of having their allegations investigated a glimmer of hope that someone outside the FBI might be interested in taking a look at it."

Such arguments, asserts FBI deputy director Bill Esposito, are "basically impugning the integrity of the bureau," which, he says, "I equate with motherhood and apple pie." FBI agents "are all above-average people," Esposito says, and they begin hearing lectures on the importance of integrity the day they arrive for their 16 weeks of training. Others officials, like Shaheen and former attorney general William Barr, suggest that FBI agents are the best in the business and should not be subjected to possibly overzealous oversight by second-rate gumshoes from any inspector general’s office. (Responds Bromwich: "Our best agents stack up well against the best in the FBI." He says he is able to attract first-rate agents because the IG’s office "offers the chance to do a steady diet of challenging public corruption/misconduct cases and doesn’t require the constant geographical moves that are so unpopular in the FBI and elsewhere.")

DeFeo adds that, in any event, since Bromwich would take over a small fraction of FBI misconduct cases and leave most to be investigated by FBI/OPR, "we’re just talking about the margins of who exercises which part of which oversight." True, But margins are important. As the Senate subcommittee said in its report on the Ruby Ridge shootings: "The problem of institutional bias is particularly acute in cases like Ruby Ridge which involve deep-rooted and systemic problems and large numbers of agents drawn from the highest to the lowest echelons of the FBI-rather than cases which involve isolated agents violating discrete laws."

In other words, FBI agents can be trusted in most cases, perhaps-but not in all of them.

SOME INSIGHT ON OVERSIGHT

External oversight has its problems too. Former attorney general Barr says that inspectors general typically "have constituencies outside the department, particularly on the Hill, and they also tend to get a chip on their shoulder, and tend to want to make a name for themselves by finding and ballyhooing alleged misdeeds within the department. And it’s untenable to have the inspector general’s personnel second-guess what FBI agents do; in the law enforcement community there has long been antipathy for the FBI because its general jurisdiction invites lots of turf fights with other agencies." (Not to mention its we’re-die-best brand of arrogance.)

Shaheen is plausible when he says: "I don’t think you can successfully investigate a law enforcement component in this federal government without the help of people in that component." Such help will be more forthcoming if the good people in the FBI trust you, he says, and many of them will never trust a politically appointed inspector general. "The bureau views with suspicion political appointees who are in the revolving door, who are here to make a big splash, have a big press conference, and then return to the private sector," he maintains. "The bureau trusts our motives, and trusts us to treat them fairly and dispassionately. … I don’t think there’s a contest in terms of which entity gets better cooperation. They [at the FBI] view Mike [Bromwich] as a self-promoter."

On the other hand, FBI agents might be most trusting of overseers-internal or external-who tend to be biased in the FBI’s favor, or forgiving of its mistakes. And some might sense a leaning toward lenity in Shaheen’s assertion that "we can ill afford to be constantly the subject of complaints that we’re abusive." The Bromwich view is that "in an oversight agency, you have to be willing to be disliked; tough oversight doesn’t win you any friends."

Then there is the matter of appearances. Bromwich stresses that his office’s FBI crime lab report, and especially "our rejection of many of Dr. Whitehurst’s most incendiary allegations, was far more credible [with Congress and the public] coming from the OIG than it would have been coming from the FBI." That’s true. A different sort of appearance problem might be presented, however, if an investigation of great political importance to the incumbent administration were conducted by that administration’s appointee. A Senate Judiciary staffer suggests, for example, that the Shaheen report persuasively clearing former FBI general counsel Howard Shapiro of serious misconduct in his contacts with the Clinton White House was easier for Republicans to credit than the same report would have been if Bromwich’s name had been on it.

Bromwich-his heart is in law enforcement, not politics-is understandably frustrated at being tarred with such a broad "political appointee" brush, but his Senate confirmation experience shows that the absence of any valid reason to suspect that he would take a dive will not stop some Republicans from mistrusting him. And that’s a problem for people like Orrin Hatch: Even if he trusts Bromwich, he has to worry about colleagues on his right flank for whom Bromwich’s status as a Clinton appointee ends the analysis.

The tricky question is how to strike the optimal balance between internal oversight abetted by trust and outside oversight emphasizing tough skepticism. And maybe the answer is a combination, with Good Mike, Bad Mike, and Big Mike each performing his (and his agency’s) own distinctive brand of oversight, each of which has its strengths.

Bromwich’s strengths include being "a hard-driving character who decides what has to be done and just drives in that direction," in Heymann’s words. Adds Carl Stern, formerly the department’s public affiars director: "He’s got ants in his pants. He really itches to act. He has a high indignation level, and he’s high-energy, high-voltage…. Shaheen’s not so driven. He’s been at it so long, he doesn’t itch to get things done and get his work recognized. He’s more career civil service. … There wasn’t that churning in the pit of the stomach to get the damn thing out there and get it done."

Bromwich’s strengths are complemented by those of the inspector general’s office as an institution with a broad mandate to find things that aren’t working well and figure out why, rather than simply reacting to any complaints that rise to the level of criminal or unethical conduct. While the bureau’s internal ethics unit, run by DeFeo, tends to take a narrow view of its responsibility, according to David Fred-crick, a former Bromwich counselor who is now an assistant solicitor general, "the IG is well positioned to take allegations which could have been characterized as criminal or administrative misconduct or just bad performance, and do it all in one big report, rather than slice the baloney so thin … that you miss the bigger picture." Adds Heymann: "Every organization needs somebody to review what it’s doing and how it’s doing it, to review its systems. I’ve never met a Cabinet head who had time to do that; that’s what you want from an inspector general."

Shaheen’s strengths are no less valuable, just different. Being the Justice Department official most trusted and respected by the FBI and the Senate Judiciary Committee chairman-including not only Hatch but his Democratic predecessor, Joseph Biden, Jr., of Delaware-is no small asset. And Shaheen’s record shows he didn’t get that reputation by being a patsy. In addition, in Shaheen’s words, "having been here for a long time, I know exactly where the departmental pressure points are, and can cut through the bureaucratic red tape and get results quickly." Any good attorney general would want to have someone like that, and an institution like Shaheen’s office, at her beck and call.

As for DeFeo, one of the few things on which Good Mike and Bad Mike agree is that Big Mike has a good reputation. DeFeo’s former colleague David Margolis says that Freeh made a "brilliant" choice by bringing in a very tough career prosecutor who knows FBI work but has the perspective of an outsider, and who is at the peak of his career rather than looking ahead to his next job.

IF IT AIN’T BROKE…

DeFeo’s comment on Bromwich’s hopes of changing the system to give him an unrestricted hunting license at the FBI is: "If it ain’t broke, don’t fix it." That logic may well prove persuasive to the powers that be, in the department and in Congress. While Bromwich has some support in both places, Janet Reno is decidedly noncommittal, declining to express any view on Bromwich’s bid for more turf or on the relative merits of Bromwich and Shaheen, both of whom she praises as "vigorous and dedicated to getting at the truth." If Reno remains above the Bromwich-Shaheen-FBI fray, that would leave the issue in the lap of Eric Holder, who was sworn in as deputy attorney general in September.

And Holder, like Jamie Gorelick before him, may find little reason to take on Senate Judiciary Committee chairman Hatch. More concerned now than ever about Clintonite politicization of the Justice Department, Hatch suggests it would be "asking for trouble" to shift one inch of turf from OPR’s Shaheen to any political appointee. "Bromwich is an ethical, able lawyer who has shown himself to be willing to critique DOJ member agencies," says Hatch, "but he’s kidding himself if he thinks the Senate’s going to support him as a political appointee to be in a position to investigate misconduct by lawyers and or other professional employees at this Department of Justice."

So with Hatch barring the door to Bromwich’s expansionism, what is to be done about the Bromwich-Shaheen feud? Docs one of them have to go? Some high-level officials express consternation at all the sturm and drang about who gets to investigate what. But associate deputy attorney general Margolis-a 32-year veteran who is the initial referee of such disputes and the decision maker on disciplinary decisions, and who happens to be one of the most respected career lawyers in the department-says he can handle it.

"When you have two proud, competent, determined people with overlapping jurisdiction, there’s bound to be disputes," says Margolis. "Obviously, you don’t want it to go overboard, but if there weren’t a certain amount of tension between the two offices, I’d worry about them…. To those people who ate complaining and whining anonymously about Bromwich-I’m the one in the middle of it, and I can live with it. Are there times when I wish he’d said things differently? Sure, but I think that about a lot of people." Margolis credits Bromwich with "doing a splendid job." He adds that "I have known Shaheen for probably over twenty years, because I’ve been the subject of his investigations as well as the consumer of his reports, and he’s done a good job. And that’s easy for me to say because I’ve always been acquitted. I’ve challenged him to name anybody he’s investigated as many times as me."

A good deputy attorney general-which Jamie Gorelick was and (judging by his record) Eric Holder should prove to be-would divvy up the big internal investigations with the strengths of both Shaheen and Bromwich in mind. Worried that Republicans will scream "political fix" if a political appointee like Bromwich were to find no misconduct in a politically charged matter involving (lie Clinton White House? Give it to Shaheen. Worried that the FBI agents who staff Shaheen s investigations might have blind spots or be too inclined to protect their own in a case involving deep, systemic problems in the bureau’s culture (like Ames or the crime lab)? Let Bromwich handle it. "Now," says associate deputy attorney general Margolis, "we can have an FBI internal investigation, give it to our OPR, or give it to the IG. We have all these great options, and we can tailor who’s going to run the investigation to suit the particular facts. I like the flexibility, I really do."

Bromwich dismisses this all-for-the-best analysis by jokingly calling Margolis "Dr. Pangloss." But Margolis has a point. So does Jamie Gorelick, who notes that Bromwich has not been blocked from investigating any matter at the FBI excepting the ones that- like the Ruby Ridge, Jewell, and Shapiro matters-were handled (quite professionally) by Shaheen’s OPR. "I think IG oversight of the FBI is good," says a former Gorelick subordinate, "but I don’t think the status quo imposes any real constraint."

Indeed, in a world of fallible mortals in which good government requires elaborate checks and balances, one could scarcely devise a more ingenious plan for improving external oversight of the FBI than to set up a rivalry between Good Mike and Bad Mike and their respective offices, with each trying to outshine the other. Says Hatch: "I don’t see anything wrong with having two watchdogs inside this Justice Department, or any other for that matter." Nor does Margolis. Nor do I-even if it does make an awful clamor now and then.

Of course, the current system would not work so well if the jurisdictional referees at the top were corrupt, cowardly, politically biased, stupid, or just allergic to bad headlines about internal problems. But no system is immune to that sort of risk. And Margolis says the risk is mitigated by the influence of the career professionals. "I can’t think of a time," he adds, "when there’s been both a turkey as AG and a turkey as deputy at the same time." Besides, says the former Gorelick subordinate, "if the IG comes to the deputy and says, ‘I want to look into allegations of corruption at the FBI, and the deputy says no, Bromwich can just go to the Hill and say the deputy’s covering up for the FBI."

Unless, perhaps, Shaheen gets there first. Is the Justice Department big enough for both of them? It ought to be. Whatever Good Mike and Bad Mike may think of each other-and I’ve noticed that neither seems amused when the other’s witticisms are repeated to him-the country needs more such men, not fewer.

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

Stuart Taylor, Jr. — Fri, 01 Nov 1996 00:00:00 +0000

Jones’s claims against President Clinton are far stronger than the media has let on– and far stronger than Anita Hill’s against Clarence Thomas

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 [the National Organization for Women]? 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.

Jones’s evidence includes clear proof, scattered through the public record, that then-governor Clinton’s state trooper-bodyguard interrupted the then-24-year-old state employee on the job on May 8, 1991, and took her to meet Clinton – the boss of Jones’s boss – alone in an upstairs suite at Little Rock’s Excelsior Hotel, for the apparent purpose of sexual dalliance. The evidence also includes strongly corroborative statements made to me by two of Jones’s friends, complete with tellingly detailed, seamy specifics – some never published until now – that are remarkably consistent with Jones’s allegations about what happened inside that suite. The friends relate how an extremely upset Jones had told one of them within ten minutes of the event, and the other within 90 minutes, that Clinton had suddenly exposed himself and demanded oral sex after Jones had rebuffed his efforts to grope her. One of these women, Pamela Blackard, also witnessed the trooper’s approach to Jones and her departure to and return from Clinton’s hotel room. Both told me that, on the basis of Jones’s detailed descriptions and distraught demeanor that day, they are convinced that she was, and is, telling the truth. They both signed sworn, generally worded affidavits for Jones in 1994.

Blackard and the other woman, Debra Ballentine, first told their stories in February 1994 in exclusive interviews to reporter Michael Isikoff, then of The Washington Post. But to Isikoff’s chagrin, the Post printed only sketchy fragments of their accounts, 11 weeks later. Blackard’s and Ballentine’s detailed, previously unpublished stories provide far stronger corroboration for Jones’s allegations than anyone could know from reports by the Post or any other major news organization.

There is, of course, other evidence that warrants skepticism about Jones’s account, including the claim by Jones’s trooper escort that she happily volunteered to be Clinton’s “girlfriend” just after leaving his hotel room. Yet while the ultimate truth remains elusive, this article will show that there are only three logically possible scenarios: that Jones lied in a most convincing manner, and in stunning, Technicolor detail, to both Blackard and Ballentine, on May 8, 1991, and to her sisters soon thereafter; that Blackard, Ballentine, and both sisters later conspired with Jones to concoct a monstrous lie about the president; or that Jones’s allegations are substantially true.

“My guess is that she’s lying, at least about the more lurid details,” I wrote of Jones in the July/August 1994 issue of The American Lawyer. But after interviewing Blackard and Ballentine and studying other evidence detailed below, I’m not so sure of that. And I’m all but convinced that whatever Clinton did was worse than anything Thomas was even accused of doing.

I say this as one who voted for President Clinton in 1992 and who may do so again (with multiple misgivings), and as one who lamented Justice Thomas’s confirmation to the Supreme Court, and who disagrees deeply with much of his archconservative jurisprudence. I don’t want to believe that the president is a reckless sexual harasser, and I’ll never know for sure exactly what happened when Clinton was alone with Jones.

But Jones’s evidence is highly persuasive.

So, too, is the absence of evidence where one might expect to find it. President Clinton has carefully avoided making any statement whatever – sworn or unsworn – about what, if anything, happened between him and Paula Jones. He has never personally, publicly denied that (for example) he had Jones delivered to his hotel room by his trooper-bodyguard. Moreover, the president’s personal lawyer, Robert Bennett, has never denied with specificity this or many other particulars of Jones’s factual allegations, either in court or in his countless media appearances. Bennett has said that the president “did not engage in any inappropriate or sexual conduct with this woman,” and that he “has no recollection of ever meeting this woman.” But he has never denied that a meeting took place. Rather, he has uttered many ambiguous nondenial denials, like “nothing happened in that hotel.”

Since the Jones lawsuit was filed, the president and his lawyers have also exploited every delaying tactic at their command, including the pending Supreme Court appeal, to avoid confronting the evidence. Their sweeping and unprecedented claim that the Constitution bars all proceedings in all “personal damages litigation against an incumbent president” was rejected by the federal district and appellate courts – the latter in a decision stressing that “the Constitution . . . did not create a monarchy.”

But they have won by losing. While taking their claim of immunity to the Supreme Court, the president and his lawyers have won interim orders blocking Jones from taking discovery from anyone: not from Clinton, not from the trooper who has said he escorted Jones to Clinton’s room at Clinton’s direction, not from anyone else. They have also deferred even the filing of an answer by Clinton admitting or denying each of the specific factual allegations of the complaint. Even if – as seems likely – the Supreme Court rejects the president’s arguments for stopping all proceedings cold until he leaves office, Clinton and Bennett have already achieved their main goal: The very pendency of Clinton’s appeal has stalled – until well after the last election he will ever face – all inquiry into whether he behaved with extraordinary depravity.

The Clinton-Bennett defense strategy has been a success in the media as well as the courts. The president’s surrogates and supporters have diverted attention from the most relevant evidence by orchestrating a media blitz depicting Jones as a promiscuous, flirtatious, gold-digging, fame-seeking slut, unworthy of belief. They have characterized her allegations as “tabloid trash,” in Bennett’s famous phrase, that are being cynically used by Clinton-haters to promote a right-wing agenda. While supporters of Clarence Thomas famously used similar tactics to demonize Hill, they had a far less receptive media audience.

All mainstream news reports and commentaries about Jones (that I’ve seen) have ignored or downplayed the strength of her corroborating witnesses and other evidence. Many have radiated suspicion of her motives (but not of Anita Hill’s); of her nearly three-year delay in making her allegations public (but not of Hill’s ten-year delay, or of Hill’s decision to follow Thomas to a new job after the alleged harassment had started); and of the uncritical joy with which her claims were predictably greeted by Clinton-haters and right-wingers (as Hill’s were by Thomas-haters and left-wingers). Many rest on two shaky premises, the first illogical and the second unproven: that Jones’s motives must be pure for her allegations to be true, and that her motives are in fact impure.

Meanwhile, not a single one of the feminist groups that clamored first for a Senate hearing for Anita Hill, and then for Clarence Thomas’s head, has lifted a finger on behalf of Paula Jones. There is some symmetry here: Many conservatives who reflexively trashed Hill, an apparently demure, dignified law professor, have given the benefit of the doubt to Jones, who projects neither demureness nor dignity. What the Hill-Thomas and Jones-Clinton episodes have in common is that each of them prompted a rush to judgment by people on both sides of the ideological divide whose conclusions were derived not from evidence, but from ideological bias. And most striking, in my view, is the hypocrisy (or ignorance) and class bias of feminists and liberals – who proclaimed during the Hill-Thomas uproar that “women don’t make these things up,” and that “you just don’t get it” if you presumed Thomas innocent until proven guilty – only to spurn Jones’s allegations of far more serious (indeed, criminal) conduct as unworthy of belief and legally frivolous.

So maybe it’s time – or past time – for an in-depth analysis of the evidence for and against Jones’s claims, and how it stacks up against the evidence for and against Anita Hill’s. Of course, we don’t have all the evidence. But we have a lot of it. And because it is the president himself who has assiduously kept the rest of it from us, it’s hardly unfair to him to do a tentative analysis, based on what we know now, of what (if anything) happened between him and Jones on May 8, 1991. Such an analysis follows, interwoven with a chronological account of the tortured process by which Jones’s story emerged in early 1994, amid disbelief and derision, and the subsequent course of the lawsuit.

The account will begin with events shedding light on her motives and then focus on more directly relevant evidence. Starting with the magazine article that spurred Jones in early 1994 to break her silence about Clinton’s alleged harassment of her – because it implied that she had been one of Clinton’s lovers – it will relate the bungled efforts by Jones’s first lawyer to get some kind of redress from the president; the fiasco-cum-press conference at which Jones went public at a Clinton-bashing rightwing conclave; her retention of two litigators who call themselves “country lawyers,” Gilbert Davis and Joseph Cammarata, of Fairfax, Virginia; the eleventh-hour bid by Bob Bennett to head off her $700,000 sexual harassment lawsuit through long-distance telephone negotiations, with the president apparently sitting in; the allegations of the May 6, 1994 complaint, and the detailed evidence supporting and countering them; and Bennett’s multimedia lawyering since the complaint was filed, from his repeated appearances on Larry King Live to his orchestration of the president’s Supreme Court appeal.

Such lawyering does not come cheap. The accrued fees and costs of Bennett – who has spent more of his own time defending Clinton on television than in courtrooms – and his mega-firm, Skadden, Arps, Slate, Meagher & Flom, have probably mounted above $2 million already, triple the $700,000 in damages sought by the Paula Jones complaint. That would bring the total accrued fees and costs of Clinton’s four private law firms to about $5 million [see “Fees: $5 Million And Counting,” page 61]. But to the miraculous good fortune of the president and his lawyers, two big insurance companies have come to the rescue, generously assuming responsibility for Skadden’s fees.

You should be so lucky, if anyone ever sues you for sexual harassment.

A WOMAN NAMED “PAULA”

Paula Corbin Jones’s life changed dramatically in early 1994, in a chain of events that began when she was mentioned as one of Bill Clinton’s apparently compliant conquests, in an article by conservative journalist David Brock. In a story that detailed allegations by four of Clinton’s former state trooper-bodyguards. Brock reported that as governor of Arkansas, Clinton had used the troopers both to procure women who caught his eye – including one named “Paula,” who was delivered to Clinton in a room at the Excelsior Hotel – and to facilitate and conceal long-term extramarital affairs with Gennifer Flowers and others.

This was the same David Brock who had written the best-selling 1993 book The Real Anita Hill. In a one-sided but semicogent dissection of old and new evidence about Hill and her charges against Clarence Thomas, Brock had savaged the demure professor as a liar. Among other things, Brock had stressed Hill’s apparent (but carefully camouflaged) liberal ideological animus against Thomas and her ten-year delay in going public. For this, Brock himself was widely savaged by liberals (like New York Times columnist Frank Rich) as a right-wing smear artist.

“His Cheatin’ Heart,” which appeared in the January 1994 issue of the Clinton-bashing The American Spectator, began circulating in Washington about December 17, 1993, and in Little Rock soon afterward. It was followed by a long, December 21 investigative piece in the Los Angeles Times, reporting the same four troopers’ allegations about Clinton’s sex life, while stressing a series of efforts made in 1993 by the Clinton camp to dissuade the troopers from speaking out – including phone calls from the president himself to trooper Danny Lee Ferguson. Ferguson – the one who has said Clinton had him deliver Paula Jones to his hotel room – claimed that the president dangled possible federal jobs for him and another trooper [see “A Trooper’s Tales,” page 63].

According to her complaint, Jones had heard nothing about the Brock article, or its hint of a quick Clinton tryst with “Paula” at the Excelsior Hotel. Having sworn her friends and sisters to silence after the Excelsior encounter in 1991, Jones had been urged to reconsider during the 1992 campaign publicity about Clinton’s extramarital adventures with Gennifer Flowers and others. “I called [Paula] and told her she ought to do something,” recalls Jones’s friend Debra Ballentine. But Jones did nothing, because, she has said, she feared nobody would believe her, and because she was still working under a Clinton appointee. Meanwhile, she got on with her life. She and her husband Stephen had a baby in 1992, and moved to Long Beach, California, in mid-1993. In January 1994 she had returned to Arkansas to visit her friends and family. That’s when Debra Ballentine read the key paragraph to Jones over the phone while scheduling a lunch:

One of the troopers told the story of how Clinton had eyed a woman at a reception in the Excelsior Hotel in downtown Little Rock. … Clinton asked him to approach the woman, whom the trooper remembered only as Paula, tell her how attractive the governor thought she was, and take her to a room in the hotel where Clinton would be waiting. As the troopers explained it, the standard procedure in a case like this was for one of them to inform the hotel that the governor needed a room for a short time because he was expecting an important call from the White House. … [After her encounter with Clinton, which lasted no more than an hour as the trooper stood by in the hall, the trooper said Paula told him she was available to be Clinton’s regular girlfriend if he so desired.

Jones was mortified, according to her complaint. She recognized herself instantly as the “Paula” whom the trooper had delivered to the hotel room. So did Debra Ballentine. And so would Pamela Blackard, who had been with Jones at the Excelsior that day, and Jones’s two sisters, and her husband. Jones had told all of them that she had rebuffed sexual advances by Clinton that day. What would they believe now? Little Rock is an incubator of gossip, especially about sex. Pretty soon people all over town would hear about how “Paula” had apparently been one of Clinton’s conquests, and which Paula it had been.

“When people say something like that, it pisses you off,” says Jones’s friend Pamela Blackard. “You get mad.” Mad at the magazine. Mad at trooper Ferguson, the Clinton bodyguard who had taken Jones to Clinton’s hotel room that day, and who was obviously Brock’s source. And mad at Bill Clinton – who, as Jones saw it, was responsible for the whole ugly business.

As it happens, Jones ran into Ferguson on January 8, 1994, a day or two after learning of the Brock article, at the Golden Corral Steakhouse in North Little Rock. He was having lunch with his wife while Jones lunched with Ballentine. According to her complaint, Jones confronted Ferguson about the article, and he became apologetic, saying that ” ‘Clinton told me you wouldn’t do anything anyway, Paula,’ ” and observing that ” ‘if you decide to go public with this, the [National] Enquirer will pay you a million dollars.’ “

“He apologized over and over again,” recalls Ballentine, who witnessed the conversation. “He was acting like he didn’t like Clinton at all. … He talked to us for a long time.” She adds: “It was just crystal clear to me, if I had had any doubt [she had told me the truth].”

Ferguson, on the other hand, denied this and claimed in his June 1994 answer to Jones’s lawsuit that Jones had “inquired as to how much money [he] thought that she could make for herself by coming forward with her allegations.”

A CHARGE OF EXTORTION

Five days later Ballentine put Jones in touch with her close friend Daniel Traylor, a small-time solo practitioner in Little Rock who does real estate law and other work. Jones wanted him to try to get some sort of redress from Clinton.

What sort of redress? Jones claims that her only purpose was to get the president to make some kind of public statement clearing her name, and that she has never been in it for money or fame. But Clinton surrogates have fanned suspicions about her motives by filling the airwaves with comments like this one by Clinton counsel Bob Bennett on CNN this January: “Look, this is a lawsuit where the initial fee agreement with her lawyer, Mr. Traylor, says he gets a cut of the action of any movies, any book contracts. This is an action which was announced after an extortion threat was turned down. Do the Republicans really want to ride this horse?”

Bennett’s mention of an extortion threat apparently refers to an effort Traylor made in January 1994 to send a message to Clinton through George Cook, a politically active Little Rock businessman whom Traylor believed to be close to Clinton. Exactly what was said between them is in dispute. Paula Jones was not present.

Cook, who has said he refused at the time even to convey Traylor’s message to the White House, later signed an affidavit about his meeting with Traylor, apparently prepared by a Clinton lawyer in Little Rock: “Traylor . … said [Jones] had a claim against President Clinton and, if she did not get money for it, she would embarrass him publicly. … He said he knew his case was weak, but he needed the client and he needed the money. … Traylor said it would help if President Clinton would get Paula a job out in California. I told Traylor that would be illegal.”

Traylor told The Washington Post in May 1994 that Jones had never suggested that he seek a job or money from the president. He told me that Cook’s affidavit “doesn’t fairly reflect what was proposed or discussed” in their 90-minute meeting, and denied proposing anything improper. But he turned aside my detailed questions. What’s clear is that Traylor was in way, way over his head trying to deal with the president. His mishandling of the Paula Jones matter in early 1994 has a lot to do with her difficulty getting people to look at her allegations and evidence seriously ever since.

Traylor had Jones sign the (now terminated) contingent fee contract on which Bennett has cast aspersions. It gave Traylor one-third of any amounts paid to Jones for any news articles or “television, radio, or movie contracts.” Jones has said she assumed this was standard language.

According to her current lawyers, Jones turned down an offer of $700,000 in mid-May 1994 to tell her story on television. She has pledged to give to charity any damage award that may be left over after paying her lawyers.

Jones’s promise is unenforceable, of course. So, by the way, is the letter in which President and Mrs. Clinton promised to give to charity (or the government) any money that may be left over from their Presidential Legal Expense Trust, after payment of their own attorneys’ fees.

An academic point now, perhaps, since the trust’s liabilities dwarf its assets.

A RIGHT-WING PLOT

After getting nowhere with George Cook, Traylor – a self-described “yellow-dog Democrat” – called Cliff Jackson, a Little Rock lawyer and longtime Clinton critic with contacts in the national press. Jackson had been retained by two of the troopers to help them peddle their stories about their roles in Clinton’s alleged sexcapades. He met with Jones “and was very much persuaded that she was telling the truth,” Jackson says. He suggested that one way to get “national exposure” for Jones’s story would be to piggyback on a press conference that his trooper clients were already planning, at the upcoming Conservative Political Action Conference (CPAC) in Washington.

“I discussed the downside to that,” recalls Jackson, “which was that it would be with me, that I was already demonized as the Bill Clinton nemesis, archenemy – which is a White House creation, I’m not that. … And I knew [CPAC] was a right-wing organization and that that would be viewed by the mainstream press and media, and spun by the White House, as something suspect.”

Despite such warnings, Traylor and his client (oblivious to politics, by all accounts) decided to announce her allegations – and her demand for a presidential apology – at a press conference on February 11, 1994, in conjunction with the CPAC conference. She and her husband appeared on the same stage with Jackson and his trooper clients, who were touting a “Troopergate Whistle-Blowers Fund.” Jones told the reporters that Clinton had tried to kiss her, reached under her clothing, and asked her to perform an unspecified “type of sex.” But Traylor did most of the talking, providing few details and severely limiting reporters’ questioning of Jones. As a result, says Jackson, “she wasn’t allowed to be forthcoming and tell her story.” That only enhanced the suspicions generated by Cliff Jackson’s sponsorship and the choice of a Clinton-bashing, right-wing conference as a forum.

The press conference was a fiasco, and Jones’s vague claims were widely ignored or dismissed as a salacious sideshow. Three days later, six paragraphs deep in a Washington Post Style Section color piece, Lloyd Grove made elegant fun of the whole CPAC affair, ridiculing Jones’s press conference as “yet another ascension of Mount Bimbo” played out in front of a “tittering and chuckling” crowd.

The New York Times published four short, sober, skeptical paragraphs the day after the Jones press conference, deep in the paper, ending with a statement for the president by Mark Gearan, then the White House communications director: “It is not true. He does not recall meeting her. He was never alone in a hotel with her.” Curiously, Gearan – a careful man who must have checked with the president – omitted the word “room.” Jones had not, of course, claimed that she and Clinton had been the only two people in the entire Excelsior Hotel that day. A nondenial denial, perhaps? Meanwhile, Clinton aide George Stephanopoulos dismissed Jones’s press conference as “a cheap political fund-raising trick.”

When the press conference flopped, Jackson says, he convinced Traylor to try persuading a national, establishment newspaper of the strength of Jones’s allegations and evidence, by “giving them an exclusive, working with them only.” Jackson recommended Michael Isikoff, a widely respected investigative reporter, then with The Washington Post and now with its affiliate, Newsweek.

Isikoff immediately interviewed Jones (at length, on tape), her husband, Pamela Blackard, Debra Ballentine, Jones’s two sisters, her mother, and others, including White House officials and Clinton aides in Little Rock, where he did some of his research. In February, he drafted a story stressing the strength of their evidence. But the Post’s editors held it up, amid multiple requests for more reporting, redrafts, and revisions. “The editors involved felt that more work had to be done right up until the day it was finished and put in the paper,” says Robert Kaiser, the Post’s managing editor. “We were extremely careful in light of the nature of the accusation.” Isikoff, on the other hand, later told the American Journalism Review: “Having done the reporting, I felt to not publish the story was withholding information from the readers.”

Frustrated with the Post, Jones and her husband wandered into the welcoming arms of conservative activists and the Christian right, which was beating a path to their door. They agreed to be videotaped by producers for far-right televangelist Jerry Falwell for what turned out to be a scurrilous video called The Clinton Chronicles; Jones also appeared on Pat Robertson’s 700 Club show on the Christian Broadcasting Network and was interviewed by conservative media critic Reed Irvine on his cable television show. Meanwhile, Irvine’s Accuracy in Media took out full-page ads in the Post and other newspapers accusing them of suppressing an important story.

Was Jones (or Traylor, or other people advising her) seeking something more than to clear her good name? They did, after all, create a national scandal to rebut a single paragraph buried deep in a long story in a right-wing journal – a journal that had not even mentioned “Paula’s” last name. Jones and Traylor have said their purpose was to bring pressure on Clinton to make a public apology. But the predictable effect has been to generate a huge wave of publicity far more damaging to Jones’s reputation than one small paragraph in The American Spectator could possibly have been.

“Maybe,” says Jones’s friend Pam Blackard, “she bit off more than she could chew.”

THE $475-AN-HOUR MAN

What really put Paula Jones’s name in the headlines was not her initial press conference, or even the filing of her lawsuit, but rather the decision by President Clinton to retain Bob Bennett to defend the case, which hit the papers on May 3, 1994. Suddenly, it seemed like this must mean real trouble for the president. He already had David Kendall of Williams & Connolly working full-tilt to defend him in the Whitewater investigation; now he was hiring an even more expensive lawyer – the $475-an-hour man who would be king of the white-collar defense bar – to take on Paula Jones and her hapless solo practitioner from Arkansas.

Bennett, the older brother of conservative luminary William Bennett, had been recommended to the president and Hillary Clinton months before, by Harold Ickes, a top White House official whom Bennett had represented in connection with the Whitewater investigation. According to two sources with indirect knowledge of the discussions, Bennett had initially met with one or both Clintons in late March or early April 1994, not about Paula Jones but about some of their multifarious other legal problems, including the “troopergate” allegations. As it became apparent that Jones was preparing to sue by May 8, 1994, when the statute of limitations would run out, some Clinton insiders thought the best way to keep her case out of the news was to assign it to some obscure lawyer in Arkansas. But then -White House counsel Lloyd Cutler recommended Bennett, according to Cutler. He reasoned that the lawsuit, once filed, would be a big story in any event, and that Bennett was especially skilled at dealing with the media.

Indeed, unlike Kendall – a tight-lipped, old-school lawyer – Bennett had made a name for himself as being especially good at crafting television sound bites and schmoozing with reporters in his office, and was a capable courtroom advocate as well. He was on a roll, after a succession of high-profile engagements, including the Senate’s televised “Keating Five” hearings, in which Bennett had served as special counsel; the defense of aging superlawyer Clark Clifford; and the securing of a presidential pardon for Caspar Weinberger, the former Defense secretary, wiping out his indictment for alleged Iran-contra crimes. As May 1994 began, Bennett was going into sensitive talks with federal prosecutors on behalf of powerhouse then-representative Dan Rostenkowski (D-Illinois), in a criminal investigation that was to culminate in an indictment on May 31, amidst a falling-out between Bennett and Rostenkowski that ended their relationship two days later.

Bennett, who in the past has spent hours talking with me (as he has with many other reporters), spurned a written request I sent him for an interview for this article. Nor did Bennett respond to any of the 31 questions I addressed to White House counsel Jack Quinn on September 24, with a copy to Bennett. Nor did Quinn. Neither man gave a reason, but it may relate to Bennett’s complaint that I treated him unfairly in an article in the July/August 1994 issue of The American Lawyer. The article, “One Client Too Many,” contended that he had failed to consult adequately with Rostenkowski before taking on the Paula Jones matter.

THE COUNTRY LAWYERS

Meanwhile, Daniel Traylor, Jones’s Little Rock lawyer, had come to realize that he needed some real litigators to mount a real lawsuit. But he had trouble finding any who would take on the case. Traylor asked around Little Rock; talked to some big plaintiffs firms; and was put in touch – by Patrick Mahoney, an antiabortion activist, oddly enough – with Patricia Ireland, head of the pro-choice, ultra liberal National Organization for Women.

All in vain. Finally, in late April, the conservative legal grapevine put Traylor in touch with two self-described “country lawyers” with substantial litigation experience, Gilbert Davis and Joseph Cammarata of Fairfax, Virginia. They agreed to take a look at the case, and soon discovered that they would have to work fast: The 180-day statute of limitations for a suit under Title VII of the 1964 Civil Rights Act had expired, and the statute of limitations for most other causes of action was about to expire, on May 8.

Davis and Cammarata worked furiously through he first few days and nights of May to beat the statute of limitations. They talked to Jones and Traylor by phone and redrafted and expanded Traylor’s skimpy draft complaint while running across the street periodically to get coffee at a 7-Eleven store. That’s where, in the wee hours of May 4, they also picked up an early edition of The Washington Post. The Post, prompted by the news that the president had retained Bob Bennett, had finally gone ahead with two long articles by Michael Isikoff (who shared a byline on one of the stories with two other Post reporters). The stories, starting on page 1 and filling up an entire inside page, constitute the most complete account of the evidence concerning Jones’s allegations that has been published until now. It had arrived just in time for Davis and Cammarata to add to the complaint allegedly defamatory statements (about Jones) made by Bennett and White House officials to the Post. Later that morning, Jones’s attorneys flew to Little Rock to do what Davis calls “our due diligence.”

They met that day with Traylor, Jones, her husband, and their witnesses, and made sure that Jones had “the fortitude,” and her story the plausibility, to withstand the pressures of a contentious lawsuit against the president, says Davis, who found Jones to be “a warm and sincere human being.” Using Traylor’s office, they continued to rework the complaint, let an expectant throng of reporters know that it would be filed the next day, and got a little sleep.

Their four-count complaint included federal sexual harassment claims premised on two Reconstruction-era civil rights statutes (naming trooper Ferguson as a co-conspirator under one of them), and state law claims for intentional infliction of emotional distress and defamation. Cammarata says they had carefully considered adding another defamation claim, against The American Spectator. But they decided it would not “pass the legal laugh test”: The magazine had merely quoted what trooper Ferguson, whom it had no apparent reason to believe was lying, had said about a woman identified only as “Paula.”

THE PRESIDENT “IN THE ROOM”

Davis and Cammarata recall the next day’s eleventh-hour negotiations with Bennett in a joint interview in the cramped conference room of the modest Fairfax, Virginia, Law Offices of Gilbert K. Davis and Associates. The big, beefy, jovial Davis, who says he’s tried cases all over Virginia and in some 20 states, chuckles when asked what it’s like litigating against superlawyer Bob Bennett and his mega-firm. Citing a news report that Bennett charges $450 (not $475) an hour, Davis quips, “We charge less than half that, and I like to think we’re half as good as they are.”

Both lawyers say that political animus against Clinton was not their reason for taking the case. Davis, who is seeking the 1997 Republican nomination for attorney general of Virginia, describes himself as a “conservative libertarian populist Republican”; Cammarata says he leans to the Republican side, but once worked for Jimmy Carter’s presidential campaign and is “not just a Republican partisan here.” In addition to being of counsel to Davis, in the spring of 1994 Cammarata had been working as trial counsel with Besozzi, Gavin & Craven, a Clinton-connected Washington, D.C., law firm, which would soon thereafter dismiss Cammarata for taking Jones as a client.

On the morning of May 5, Davis recalls, he called Bob Bennett in response to a phone message that Bennett had left for Traylor. Davis informed Bennett that he and Cammarata were now taking over the case (while keeping Traylor as local counsel), and were planning to file the complaint by 3 P.M. that day. Recalls Davis: “[Bennett] said something to the effect that, ‘Your client has no case. I’ve talked to the president for a long time, and he completely denies that any of this happened. I’ve grilled him for hours and hours, and this didn’t happen.’… “

Davis continues: “And he said, ‘Are you aware there are nude pictures of her? I’ve not seen them.’ And I said, ‘Well, no, if there are, I’d like to see them.’ So they had some knowledge of that already. …

“And I said, ‘Well, let me tell you this: My client contends [that] she can identify distinguishing characteristics in his genital area; so when your client says that he wasn’t even there, that’s to the contrary.’ … And when I told him that, that quieted him down a little bit. … And Bob Bennett said something like, ‘Well, it sure is different from a regular old personal injury case.’ “

The conversation, and several others that day, turned from what Cammarata calls “Bennett’s bluster” to an intensive, last-ditch effort to work out a settlement, the linchpin of which would be some kind of statement by the president to rehabilitate Jones’s reputation. “She wanted an apology,” recalls Cammarata. “She wanted her name cleared. So we weren’t looking for any money.” Jones, her husband, and Traylor were with Davis and Cammarata during these Davis-Bennett phone calls.

After some preliminary negotiations, Bennett said he needed to consult with his client before proceeding further. For his part, Davis wanted an assurance that any preliminary agreement worked out by the lawyers would have the approval of the president. Early in the afternoon, there was another phone conversation. “I’m on the telephone talking to Bob Bennett,” Davis recalls, “and I said. ‘Have you been able to find your client?’ and he said, ‘Yes, he’s in the room.’ And I looked at the others, and put my hand over the phone, and said, ‘He’s in the room.’ “

“When he said that,” adds Cammarata, “it gave me some chills, because here we are, negotiating directly with the president of the United States.”

Minutes later, when Bennett suggested that any agreed-upon statement be read by a White House press spokesman, Davis and Cammarata conferred and insisted that it be publicly recited by the president himself. “Bob said, ‘I don’t know, hold on,’ “Davis recalls, “and then maybe five or ten seconds after that, he said, ‘All right, that’s acceptable. Davis and Cammarata took this to mean that Bennett had just cleared it with the president.

At Bennett’s request, Jones held off filing suit that day – much to the frustration of the horde of news reporters waiting expectantly at the courthouse. According to Davis and Cammarata, Bennett’s most specific proposal, which came later that day, included statements to be issued by the president and Jones, which Bennett and Davis had worked out by phone; at Davis’s request, Bennett had the statements typed up and faxed to Davis in Little Rock that evening. Davis and Cammarata released the statements, together with a facsimile transmission sheet on Skadden’s letterhead bearing Bennett’s name, on October 1, 1994, with a press release detailing the negotiations. Bennett has never questioned the authenticity of the documents or contradicted the specifics of the Davis/Cammarata account.

The president was to say: “I have no recollection of meeting Paula Jones on May 8, 1991, in a room at the Excelsior Hotel. However, I do not challenge her claim that we met there and I may very well have met her in the past. She did not engage in any improper or sexual conduct. I regret any untrue assertions which have been made about her conduct which may have adversely challenged her character and good name. I have no further comment on my previous statements about my own conduct. Neither I nor my staff will have any further comment on this matter.”

Bennett had also faxed a proposed statement by Jones: “I am grateful that the president has acknowledged the possibility that he and I may have met at the Excelsior Hotel on May 8, 1991, and has acknowledged my good name and disagrees with assertions to the contrary. However, I stand by my prior statement of the events.”

Davis and Cammarata had asked for a provision tolling the statute of limitations for six months, so that Jones could still sue if the president or his staff violated the agreement. Davis says Bennett had firmly rejected any tolling agreement as “a deal-breaker.” And while it appeared to Davis that the language faxed by Bennett was “acceptable to Mr. Clinton,” Davis says it “was not completely acceptable to Mrs. Jones.” Still, he says, “I thought we were fairly close,” and might be able to reach agreement the next day.

Then, that night, CNN broadcast claims by unnamed White House sources that the reason Jones had not filed that day was that she realized she didn’t have a case and her family opposed the lawsuit. “It was a lie,” says Davis; the White House knew that the reason for the delay was Bennett’s request for more time to work out a settlement. (Davis does not blame this on Bennett, whom he praises as “a terrific lawyer who keeps his word.”)

The CNN report (and others) prompted Davis to break off negotiations the next morning, in a handwritten, faxed “Dear Bob” letter saying that “the complaint will be filed today” because “further efforts to resolve these matters seem fruitless.” Davis’s letter cited the news reports as evidence “that the ‘no comment’ provisions are very difficult to rely upon” without a tolling agreement. He added: “Other problems exist, including your client’s refusal to make a direct acknowledgment that he was in the hotel suite with Paula, and that he definitely knows her.”

Davis and Cammarata issued their October 1, 1994, press release detailing these negotiations (but not Bennett’s statement about the president being “in the room”) in response to what they viewed as inaccurate comments by Bennett to reporter Ruth Shalit, writing for The New York Times Magazine, on why the negotiations had failed. Bennett had said that Jones’s lawyers “would not agree to any language that included an adamant denial” by the president “that this incident occurred.” In fact, according to Davis, the Bennett-Clinton settlement proposal included no such “adamant denial.” The documents seem to bear him out.

That same day, October 1, Bennett told CNN: “I want to make it clear that these were discussions between lawyers. The president didn’t agree or not agree to anything. I wasn’t going to present anything to the president of the United States unless it first passed my test.” Closely read, Bennett’s statement does not contradict any of the specifics of the Davis/Cammarata account of the negotiations. Davis never claimed that the president had “agreed” in any final, legally binding sense. (Bennett and White House counsel Jack Quinn have not responded to letters in which I asked them to point out any inaccuracies in the foregoing Davis-Cammarata account of the May 5, 1994, settlement talks.)

Davis and Cammarata filed the complaint against Clinton and Ferguson on May 6, in the U.S. courthouse in Little Rock, amid a crush of reporters so chaotic that both men still laugh when they recall the scene. “This case is about the powerful taking advantage of the weak,” Jones said in a prepared statement. Later that day Bennett entertained another throng of reporters at a press conference, dismissing the lawsuit with what instantly became his most famous sound bite: “tabloid trash with a legal caption on it.”

SHE SAID: THE PROPOSITION

Tabloid trash or no, Paula Jones’s complaint contains a detailed narrative account of her allegations, which are interspersed below with available evidence supporting and detracting from her claims.

First, a word about who Paula Corbin Jones (then Paula Corbin) was on May 8, 1991. She was 24 years old, and hailed from the hamlet of Lonoke, 30 miles from Little Rock, where she had barely made it through high school. After coming to the state capital, she had bounced through several office and sales jobs before landing a $6.35 per-hour clerical position at the Arkansas Industrial Development Commission (AIDC), headed by a Clinton appointee. She was engaged to an airline ticket agent and aspiring actor named Stephen Jones.

She was also a curvaceous, big-haired, outgoing, eye-catching woman who sometimes dressed provocatively, was regarded by many as a flirt, and had posed almost nude about four years earlier for a boyfriend who sold the photos to Penthouse in 1994, after Jones had become famous.

The May 8 encounter began in the conference room area of Little Rock’s 19-story Excelsior Hotel, where the AIDC was hosting the “Governor’s Quality Management Conference.” The record is clear that Clinton stopped in and made a speech. Jones was at the registration desk, handing out name tags and literature with her co-worker and close friend Pamela Blackard.

Jones claims that she and Blackard both noticed Clinton staring intently at Jones while he was standing nearby, fielding questions from television reporters. (Blackard said the same to me in an interview.) A few minutes later, according to the published report of Jones’s 1994 account to Michael Isikoff of The Washington Post, trooper Danny Lee Ferguson – who had previously introduced himself by name as a member of the governor’s security detail – approached Jones and said, “The governor said you make his knees knock.”

According to Jones’s complaint, Ferguson returned to the registration table later, about 2:30 P.M., handed Jones a piece of paper with a four-digit suite number written on it, and said the governor would like to meet with her there. “A three-way conversation followed between Ferguson, Blackard, and Jones about what the governor could want,” the complaint says. “Ferguson stated during the conversation: ‘It’s okay, we do this all the time for the governor.’ “Blackard told me she generally recalls such a conversation. The Post quoted her in 1994 as having told Isikoff: “I did say to her… ‘Find out what he wants and come right back…. If you’re that curious, go ahead.’ “

The complaint says that Ferguson escorted Jones to the upstairs floor and pointed out Clinton’s suite to her. (Ferguson’s answer to Jones’s complaint confirms this.) Jones says she knocked and entered, and found herself alone with the governor.

Why did she go? “I was very excited the governor wanted to see me,” Jones said in an interview with Sam Donaldson that was aired on June 16, 1994, on ABC’s Primetime Live. “[W]hen me and my friend [Blackard] had talked about it, we thought we might – could get a job… . That’s the only reason why I would think that he would want me up there…. I did not know him or any of his past before that day.” Pamela Blackard also appeared briefly on the program confirming Jones’s account of the approach.

Trooper Ferguson’s various accounts of these events – to David Brock, to William Rempel of the Los Angeles Times, to fellow troopers, and in his answer to the complaint – lend strong support to Jones’s allegations as to how she ended up alone in a room with Clinton, while suggesting that she had eagerly courted and welcomed any sexual advances by the governor. Here’s what Ferguson told the Los Angeles Times in 1993, according to articles published on May 23 and June 11, 1994, in interviews that were initially off the record:

“Ferguson recalled that Clinton had directed him to approach a woman who was working behind the registration desk at a seminar of the Arkansas Industrial Development Corp. at the Excelsior Hotel in Little Rock. Ferguson said the governor told him that the woman had ‘that come-hither look’ and that he wanted to meet her privately.

“Acting on Clinton’s orders, Ferguson said, he first secured a room by telling the hotel manager that the governor was expecting an important call from the White House and needed a private room… ‘He gave us a room and Clinton sent me down’ to invite Jones to the room, Ferguson said.” Ferguson also told the Times that afterwards Clinton had said, “We only talked.”

It is possible that Ferguson in fact sought out Jones and delivered her to Clinton on his own initiative, for his own purposes, and was lying to the reporters. Possible, but not likely.

Ferguson told what superficially seemed a very different story in his cryptic, carefully lawyered, June 10, 1994, answer to the complaint, which seeks $700,000 in total damages from him and Clinton. By that time (Ferguson has told reporters), he had been leaned on by Clinton operatives and had gotten several phone calls from the president himself, all in 1993.

Ferguson’s answer made no mention of what he had said to Jones, or what Clinton had said to him. Rather, he claimed that before following Ferguson up to the room, Jones had made “several comments to… Ferguson about how she found Governor Clinton to be ‘good-looking’ and about how she thought his hair was sexy,” and had asked him to relay these comments to the governor. (Jones denies this.) But closely read, Ferguson’s answer said nothing inconsistent with his statements to reporters that “Clinton had directed him to approach” Jones before Jones had said anything to Ferguson. And it confirmed a critical element of Jones’s account by admitting “traveling in an elevator with plaintiff Paula Jones and pointing out a particular room of the hotel.”

All this amounts to clear and convincing proof of Jones’s allegation – which has never been specifically denied by the president personally or by his lawyer Bennett – that then-governor Clinton, the boss of Jones’s boss, sent a state trooper to interrupt the 24-year-old state employee’s performance of her job and bring her to his hotel room.

For what purpose? If – as Jones claims she naively hoped at the time – what Clinton had had in mind had been getting her a better job or something like that, the president could have said so by now. The evidence – and the absence of any other plausible explanation – strongly supports Jones’s allegation that the purpose of this exercise was to give Clinton an opportunity to make some kind of sexual overture. And that seems pretty shabby no matter what, exactly, happened in that hotel room. Shabbier than anything Clarence Thomas was ever even accused of doing by the not-exactly-unimpeachable Anita Hill.

Hill said that Thomas as her boss had persistently pestered her in late 1981 and 1982 to date him and talked dirty to her about pornographic movies involving big-breasted women and animals, his own sexual prowess, “Long Dong Silver,” “pubic hair on my Coke,” and the like. Hill did not accuse Thomas of a single overt request for sex or a single unwelcome touching. Indeed, she initially stopped short of alleging that she had been a victim of “sexual harassment” at all. And while Hill recalled objecting to this conduct, she was not too horrified to follow Thomas’s rising star, after the allegedly offensive conduct had started (and, she claimed, stopped for awhile), from the Education Department to the Equal Employment Opportunity Commission (EEOC). Nor was Hill too horrified to keep in touch with Thomas in subsequent years – getting him to write a letter of recommendation that helped her land a law teaching job at Oral Roberts University in 1983, phoning him repeatedly after she went there, inviting him to make an appearance there, and more.

Indulging for the moment the assumption that Paula Jones is lying about what happened inside the hotel room, and the further assumption that Anita Hill was telling the whole truth, which would be-worse: What Hill says Thomas did? Or what then-governor Clinton almost certainly did in having his trooper fetch him a 24-year-old, star-struck, low-level state worker whom he had never met?

INSIDE THE HOTEL ROOM

Here’s what Jones alleges in her complaint with paragraph numbers and some paragraph breaks omitted – and with a caution that this gets pretty raunchy:

Clinton shook Jones’s hand, invited her in, and closed the door. A few minutes of small talk ensued, which included asking Jones about her job. Clinton told Jones that Dave Harrington is ‘my good friend.’ [He] was [the Clinton-appointed] director of the AIDC [and] Jones’s ultimate superior within the AIDC.

Clinton then took Jones’s hand and pulled her toward him, so that their bodies were in close proximity. Jones removed her hand from his and retreated several feet. However, Clinton approached Jones again. He said: ‘I love the way your hair flows down your back and ‘I love your curves.’ While saying these things, Clinton put his hand on plaintiff’s leg and started sliding it toward the hem of plaintiff’s culottes. Clinton also bent down to attempt to kiss Jones on the neck.

Jones exclaimed, ‘What are you doing?’ and escaped from Clinton’s physical proximity by walking away from him. Jones tried to distract Clinton by chatting with him about his wife.

Asked by reporters in 1994 why she had not simply left the room at that point, Jones said she had always been intimidated by important people and had not wanted to do anything that might upset the governor. She also noted (according to The Washington Post): “I will never forget the look on his face. His face was just red, beet red.” The complaint continues:

Jones later took a seat at the end of the sofa nearest the door. Clinton asked Jones: ‘Are you married?’ She responded that she had a regular boyfriend.

Clinton then approached the sofa and as he sat down he lowered his trousers and underwear exposing his erect penis and asked Jones to ‘kiss it.’ There were distinguishing characteristics in Clinton’s genital area that were obvious to Jones.

Jones became horrified, jumped up from the couch, stated that she ‘was not that kind of girl’ and said: ‘Look, I’ve got to go. She attempted to explain that she would get in trouble for being away from the registration desk. Clinton, while fondling his penis, said: ‘Well, I don’t want to make you do anything you don’t want to do.’ Clinton then stood up and pulled up his pants and said: ‘If you get in trouble for leaving work, have Dave call me immediately and I’ll take care of it.’ As Jones left the room Clinton looked sternly at Jones and said: ‘You are smart. Let’s keep this between ourselves….’

Jones left the hotel suite and came into the presence of trooper Ferguson in the hallway…. Jones said nothing to Ferguson and he said nothing to her during her departure from the suite. Jones was visibly shaken and upset when she returned to the registration desk.

Ferguson, in his answer to the complaint, has painted a very different picture of Jones’s demeanor when he saw her “some 20 to 30 minutes” after she had entered Clinton’s room: She “did not appear to be upset in any way,” and “asked if the governor had a girlfriend and Danny Ferguson answered negatively, and she then responded that she would be the governor’s girlfriend.”

In this respect, Ferguson’s answer was consistent with his 1993 comments to reporters and other troopers. (It was inconsistent in another respect: Ferguson reportedly told David Brock in 1993 that he had “stood by in the hall” while Jones was with Clinton; in his June 1994 answer, he denied this, saying he had gone back downstairs and had next seen Jones there.)

Ferguson also claimed in his answer that when he encountered Jones a week or two later, she asked if Clinton had said anything about her, and wrote down her home phone number for him to give Clinton. “She said to tell him that she was living with her boyfriend,” Ferguson added, “and that if the boyfriend answered, Governor Clinton should either hang up or say that he had a wrong number.” Jones, on the other hand, says in her complaint that while she was delivering some documents from the AIDC to the governor’s office, Ferguson spotted her and said, “Bill wants your phone number. Hillary’s out of town often and Bill would like to see you.” Jones said she refused. On later occasions, the complaint says, Ferguson asked, “How’s Steve?” and made a comment about the Jones’s new baby, which “frightened [her] and made her feel that her activities were being monitored.”

The complaint says Jones was accosted by Clinton sometime after the May 8, 1991, incident, when he spotted her in the Rotunda of the Arkansas State Capitol: “Clinton draped his arm over plaintiff, pulled her close and tightly to his body, and said: ‘Don’t we make a beautiful couple – beauty and the beast?’ Clinton directed this remark to his bodyguard, trooper Larry Patterson.” Trooper Patterson confirmed this in an interview with The Washington Post.

“I KNOW HE GRABBED HER”

The most impressive evidence supporting Paula Jones’s allegations comes from six witnesses – including Pamela Blackard and Debra Ballentine, whom I interviewed separately on October 1, by phone – who have confirmed that she told each of them that same day (or soon thereafter, in three cases) that she had rebuffed sexual advances by Clinton, these witnesses include Jones’s two sisters, her husband, and her mother. All six – including a sister who has impugned Jones’s motives – have said they believe her account of Clinton’s conduct.

None of these witnesses has yet testified, due to the president’s success in blocking discovery. All six gave their first media interviews in February 1994 under the exclusive-access agreement Jones’s lawyer Traylor had made with Michael Isikoff of The Washington Post. Since then, as far as I know, neither Blackard nor Ballentine had spoken to any other reporter in much detail until they spoke with me.

Blackard, now a homemaker, is married, with a 5-year-old son. She lives in Lonoke, Arkansas, where she and Jones had been friends “since we were 2,” forging what she says is “a special bond.” As an eyewitness to some of the events in the hotel, Blackard provides especially strong corroboration. She not only confirms every important aspect of Jones’s account of the Ferguson approach, but gives a vivid description – more detailed than in her affidavit or any previously published article – of what Jones said on her return from Clinton’s hotel room.

“I could see her shaking,” as she came walking back to the registration desk, Blackard says. “I could see real far away something was wrong…. It took her a while to tell me about it. She was upset, kind of shaky, and had to get her breath.” After “five or ten minutes,” Blackard recalls, Jones related what had happened. Blackard says she has difficulty remembering the details offhand now – more than five years later – but that “I know he grabbed her. She said he just kept on moving close to her and putting his hand on her knee, and every time she stopped him he did something else.” I asked Blackard if she recalled Jones describing something dramatic happening just before Jones had left Clinton. “He dropped his pants,” she responded, “and I don’t remember his exact words, but you knew what he wanted.” She seemed hesitant to elaborate. Had Jones indicated that Clinton had wanted something that Jones could do without undressing? Blackard said yes.

Blackard added, “It’s true. I believe her. If someone goes up, and comes back in ten minutes, and is shaking – she didn’t have time to make all that stuff up. And I’m like her best friend [at the time]. Why would she tell me something like that?… And she said, ‘I don’t want you ever to tell anybody.’ ” Why not? I asked. “He’s a governor,” Blackard responded. “He’s powerful. And we both had state jobs. I was pregnant. I was 24. We were, like, two young girls…. We didn’t know what we could do, so we’re like – we’re not telling anybody.” Blackard said she had spoken to no reporters in detail other than Isikoff and me. “I’m so scared of the press, that they would turn things around …. and twist my words around,” she explained.

Debra Ballentine swore in her February 1994 affidavit that Jones had come to her office – a large Little Rock engineering firm where Ballentine was (and is) the marketing coordinator – around 4 P.M. that day. After describing the Ferguson approach and other preliminaries, the affidavit says, “Ms. Jones stated that … she rebuffed three separate unwelcomed sexual advances by the governor. Ms. Jones described in detail the nature of the sexual advances which I will not now recount.”

Ballentine, now 34 (Jones is 30), gave a fuller recounting to me on October 1. While Jones was one of her closest friends, she said, it had been highly unusual for Jones to drop in unannounced at work as she had that day, and that “I could tell just by looking at her that something was wrong.” Jones had started, Ballentine recalls, by saying, “You’re not going to believe what just happened to me, ‘and had then gone through the whole encounter.

Ballentine has confirmed Jones’s essential allegations: “She said he was putting his hands on her legs and he was trying to put his hands up her dress…. She said, ‘Debbie, he pulled his pants down to his knees and he asked me to [perform oral sex] right then.’ … Before she left, he told her, ‘I don’t want to make you do anything you don’t want to do.’ ” Ballentine adds: “He also told her he knew she was a smart girl and her boss – what’s his name? Dave Harrington? – ‘is a good friend of mine,’ and he told her, ‘I know you’re a smart girl and you’re going to do the right thing.’ “

Ballentine recalls that Jones also told her that day about the mysterious so-called “distinguishing mark” that Jones’s complaint says she saw on Clinton, and on which Jones’s lawyers say they are relying to corroborate her account. She added: “I said [to Jones], ‘You need to go to your boss right away’ She said, ‘I can’t – they’re good friends.’ I said, ‘You need to go to the police.’ She said, ‘I can’t – they took me up there.’ She just felt there was nothing she could do…. People just don’t understand why she waited so long. She wouldn’t ever have done anything if that cop [trooper Ferguson] hadn’t told that story [to The American Spectator].”

Ballentine also recalls that Jones was extremely worried that day about how Stephen Jones, then her fiancé and now her husband, would react if he ever found out the lurid details of what had happened.

Is it possible that Jones did something in that hotel room that she feared would get out to Steve Jones or others, and lied to her friends as a cover story that day? Or that they all concocted a big lie in January 1994 after David Brock’s article came out? It’s possible. But Blackard and Ballentine don’t come across as false accusers. Neither has courted publicity, and both – Blackard in particular – at first evinced reluctance to talk to me. Moreover, Blackard’s husband still worked for the AIDC, Jones’s former employer, when Blackard first signed the affidavit in February 1994.

Some other evidence: Both Blackard and Ballentine told me that they had given similar, perhaps more detailed accounts to Michael Isikoff of the Post in 1994 – at a time when their memories were fresher, when Jones’s detailed complaint (which their recollections track so well) had not been drafted, and when these witnesses had had less time to be coached by lawyers than they have now.

Isikoff confirms this. He was quoted in a book by Larry Sabato and S. Robert Lichter, When Should the Watchdogs Bark?, as saying of Blackard and Ballentine: “[They] are enormously impressive and influenced me greatly in pushing for this…. They struck me as highly credible, as people who did not have axes to grind in this. They were spontaneous, they were highly detailed, and they were very up-front. And they’re not out seeking publicity. You can accuse Jones of that, but not these two…. To the extent the story could be checked out, it did check out.”

This hardly comes across in the May 4, 1994, article that the Post finally published. It noted that Blackard and Ballentine had signed affidavits “supporting Jones’s account after conferences in the office of Jones’s attorney, Traylor,” and Blackard’s account of the Ferguson approach and Jones’s departure to meet with Clinton. But all the Post reported about Blackard’s account of Jones’s return was this: “Jones was ‘walking fast’ and ‘shaking.’ She said that Jones had told her that Clinton had made unwanted advances and Jones implored her to tell no one. ‘We were both kind of scared. We weren’t thinking straight. I thought I could lose my job. She thought she could lose her job.’ “

And all that the Post reported from Ballentine’s detailed interviews with Isikoff was that she had observed Jones “breathing really hard” when she came to see Ballentine that day, and that “Ballentine said Jones ‘couldn’t believe she was so stupid for going upstairs.’ ” When I read this to Ballentine, she offered a correction: “That is what I said to her. I said, ‘I couldn’t believe you were so stupid. You know how he [Clinton] is.’ But she didn’t know, and she probably didn’t think it was stupid then.”

Paula Jones also gave detailed accounts of Clinton’s conduct to her two older sisters, according to the sisters. Lydia Cathey, who is about two years older, confirms that she had “ushered her sister into her bedroom, shut the door, and comforted her sister as she cried on the bed,” as reported by the Post.

In an October 9 telephone interview, Cathey added this: “She came over here. She wanted to talk to me. She was very upset. She was bawling. She was shaking. And I’m 100 percent for her. It’s all true.” Had Jones described what Clinton had done? “Down to the very last detail,” says Cathey. “Dropped his drawers and tell [sic] her to ‘kiss it.’ ” Cathey added: “I tried to comfort her. She felt ashamed, even though she hadn’t done anything wrong. She felt awful…. She was afraid she was going to lose her job, that he was going to get her fired, because she ran out of [Clinton’s hotel room]. He was the governor. Every day at work, she was on pins and needles.”

I could not reach Jones’s husband – to whom Jones did not tell the lurid details at the time for fear of wrecking their relationship, according to her complaint. Nor have I been able to reach her mother or her sister Charlotte Brown.

Here’s what the Post published from their interviews with Isikoff: Stephen Jones said Paula told him at the time that Clinton had made a pass at her. Delmar Corbin, Jones’s extremely religious, churchgoing mother, said that Jones told her within a couple of days that Clinton had “wanted to put his hands on her and kiss her,” but she “didn’t tell me near as much as she told her sisters I think because she knows how much it would hurt me.” Charlotte Brown, who is about six years older than Jones, said she had said in a ” ‘matter-of-fact’ way that Clinton had propositioned her” that day.

Brown has drawn more publicity than all of the other five Jones witnesses combined, because she has aggressively trashed Jones’s motives in going public – and caused a major rift in the family – by asserting that Jones did not seem upset on May 8, 1991, and that Jones had said in early 1994 that “whichever way it went, it smelled money.” Her husband, Mark Brown, has said that he thinks Jones made the whole thing up; early on, he sought out the Clinton defense team to volunteer his help.

Nonetheless, in a February 1994 interview with Isikoff, Charlotte Brown provided rather strong confirmation for the essence of Jones’s story. Most of it was left out of his May 4 article. More was mentioned in his May 6 article reporting on a May 5 television appearance in which Charlotte Brown trashed her sister and said Jones had been “thrilled” on May 8, 1991. Isikoff noted that in his interview with Brown in February 1991 Brown had said that on the day of Jones’s alleged harassment, Jones told her:” ‘This guard came up to [Jones] and told her that Bill Clinton wanted to see her. She told me when she met him, he asked her to have oral sex and she refused…. Asked if she believed her sister’s story, she said she did because she had never known Jones to lie.”

Taken together, these six witnesses, all of whom have said Jones told them contemporaneously about Clinton’s unwelcome advances, provide far stronger corroboration than has ever been mustered on behalf of Anita Hill. While four witnesses testified that Hill had told them in vague, general terms of being sexually harassed, only one of them (Hill’s friend Susan Hoerchner) said Hill had identified Thomas as the harasser. The other three said Hill had complained (much later) of harassment by an unnamed “supervisor.” And there is at least some evidence suggesting that Hill could have been referring to someone other than Thomas in her complaints to all four witnesses.

Hoerchner – who had pressed Hill after Thomas’s nomination to go public with her charges – confidently asserted in her initial media interviews and Senate staff deposition that Hill’s complaints of having been sexually harassed by her boss had come in phone calls before Hoerchner had moved from Washington to the West Coast in September 1981. But Hill claimed Thomas’s offensive behavior had started some three months after that. When this contradiction was pointed out, Hoerchner revised her testimony, saying, “I don’t know for sure” when Hill first spoke of sexual harassment. In addition, when asked by a Senate Republican whether she had ever filed a sexual harassment charge herself, Hoerchner said no; when confronted with a record showing that in fact she had filed such a charge, against a fellow workman’s compensation judge, she responded, “I cannot say that I didn’t.”

Despite the relative weakness of Hill’s corroborating witnesses, every scintilla of seeming corroboration that has been offered for Hill’s story has been eagerly scooped up by, among others, The Washington Post, even while it was deep-sixing the far more compelling accounts of Pamela Blackard and Debra Ballentine. The leading example was the Post’s October 9, 1994, story rehashing three-year old allegations by former Thomas subordinate Angela Wright. At over 6,000 words, it was longer than all Post articles focusing on the evidence in the Paula Jones case combined. “Her Testimony Might Have Changed History,” the headline announced. “Angela Wright remembers thinking: I believe her because he did it to me,” the nut paragraph declared.

Did what? The punchlines, deep in the article, were a bit suspect: “Clarence Thomas did consistently pressure me to date him,” Wright told the Post, and had once showed up unannounced at her apartment. Once, the article said, he had “commented on the dress I was wearing” and asked her breast size. And: “I remember him specifically saying that one woman had a big ass.” But lost in the depths of this article were the facts that Wright had been fired by Thomas (and at least two other employers) for poor job performance, including being rude and disruptive to colleagues; that three witnesses said they had heard her vow to get Thomas back; and that Wright did not even claim that Thomas’s alleged conduct amounted to sexual harassment.

The Post’s takeout on Angela Wright proved to be only the opening salvo in a huge wave of publicity in the fall of 1994 revisiting the Hill-Thomas episode – most of it palpably slanted to overstate the quality of the evidence against Thomas. The centerpiece was Strange Justice, a best-seller by Jane Mayer and Jill Abramson of The Wall Street Journal, which published a long excerpt leading with a claim by a woman of extremely doubtful credibility (who has since suggested that Mayer and Abramson distorted her account) that in the summer of 1982, Thomas’s apartment had in it “a huge, compulsively organized stack of Playboy magazines,” and walls “adorned with nude centerfolds.” The smoothly tendentious Mayer-Abramson book was greeted with uncritical hosannas by news organs ranging from The New Yorker to Newsweek to ABC’s Nightline, Turning Point and Good Morning America. Meanwhile, all of the same news organs were ignoring Paula Jones and her far stronger, far more current evidence of far more odious alleged conduct by a far more powerful man – the incumbent President of the United States.

HE SAID: NONDENIAL DENIALS

What says the accused?

President Clinton’s only public comment about Jones’s allegations (unless I’ve missed one) came at a photo session the day her suit was filed: “Bob Bennett spoke for me…. I’m not going to dignify this by commenting on it.” That’s it. Clinton has never personally confirmed or denied any of the particulars of her allegations. Bennett has persuaded the courts to let him defer even a formal answer to the complaint. And the media have barely noticed that Clinton has taken the moral equivalent of the Fifth Amendment.

Meanwhile, the Clinton legal and public relations teams seem long ago to have abandoned the statement that Clinton “was never alone in a hotel with her,” issued by then-White House communications director Mark Gearan the day Jones went public. One indication that this line of defense has become inoperative was the alleged May 5, 1994, Clinton-Bennett proposal to settle the matter by offering to have the president read in public a statement conceding the possibility that he had met with Jones “in a room at the Excelsior Hotel,” and asserting that “she did not engage in any improper or sexual conduct.” Now, the operative defense seems to be Bennett’s assertion that Clinton has “no recollection” of meeting Jones. It reminds me of what President Nixon said (on tape) to three top aides on March 21, 1973: “Perjury is an awful hard rap to prove…. Be damned sure you say, ‘I don’t remember,… I can’t recall.’ “

Compare Clarence Thomas. He angrily denied Anita Hill’s allegations under oath in Senate Judiciary Committee testimony. Of course, he, unlike Clinton, really didn’t have the option of similarly ducking by refusing to “dignify” Hill’s allegations and having aides and lawyers issue nondenial denials – not if he wanted to get to the Supreme Court.

Defenders of President Clinton (like those of Clarence Thomas) stress with some cogency that the conduct of which he stands accused by Paula Jones is so far out of character that the woman must be lying. “What she [Jones] alleges is simply inconceivable as Clinton behavior,” was the 1994 reaction of Betsey Wright, who had been Clinton’s chief of staff in Arkansas and helped his 1992 campaign combat allegations of extramarital affairs – ” bimbo eruptions,” in Wright’s now-famous phrase. The same Betsey Wright has also said, however, that she was convinced that state troopers in Clinton’s security detail were soliciting women for him and he for them, as four of them have alleged. Wright said so both in late 1993, to David Gergen, then a top White House official (according to James Stewart’s 1996 book, Blood Sport), and in interviews with reporter David Maraniss of The Washington Post (according to his 1995 Clinton biography, First in His Class).

After receiving a phone call from the president in which the Maraniss book was discussed, Wright, who now is executive vice-president of the Wexler Group, a Washington lobbying firm, issued a statement through her lawyer denying Maraniss’s account of these interviews. Maraniss responded that he had double-checked every detail with Wright, and she had confirmed them all, before publication. (Neither Wright nor Gergen returned my phone calls seeking comment before press time.)

All in all, there is strong evidence that Clinton had a pattern and practice of using state troopers to hustle women. That alone is not sexual harassment (though when the governor does so with reason to know that the woman is a state employee busy doing her job, it’s getting close). But in the end it comes down to this: Either Clinton harassed Paula Jones on May 8, 1994, in a fashion that seems out of character, or she lied most compellingly to her friends Blackard and Ballentine immediately afterwards, or they are all lying now.

Let’s not forget that just as nobody but Jones has publicly accused Clinton of sexual harassment or similarly reckless sexual advances, nobody but Anita Hill has publicly accused Clarence Thomas of talking as dirty as Hill said he talked. Indeed, the Clarence Thomas behavior alleged by Anita Hill seemed as inconceivable to many of his friends and colleagues as does the Bill Clinton behavior alleged by Paula Jones. A parade of female current and former colleagues and subordinates of Thomas came forward as character witnesses for him in 1991. They said that he unfailingly treated women with respect, nurtured their careers, and was proper to the point of prudishness in his demeanor in the workplace.

Some acquaintances of questionable credibility (such as Angela Wright) did suggest that Thomas sometimes spoke crudely, or peremptorily announced things like “you’re going to be dating me.” Others have recalled, more credibly, that Thomas had a taste for pornography, and for talking and laughing about it, at least while he was at Yale Law School, years before meeting Hill. Many Thomas foes took this as confirmation that he must have talked about pornography to Hill. But any interest Thomas may once have had in talking about dirty pictures with people who did not object is no better proof that he harassed Hill than Clinton’s widely reported interest in extramarital adventures is proof that he harassed Jones.

A QUESTION OF CHARACTER

Probably Jones’s biggest problem is that she is generally regarded as a loose woman unworthy of belief. Indeed, many people – especially lawyers and others of the intellectual and monied classes – need only see a newspaper photograph of Jones, with her big hair and overdone makeup, to discount her claims. (That was my first reaction, at least.) “Tabloid trash” – Bennett’s phrase – resonates.

And then there are the almost-nude photos of Jones frolicking in bed that were taken by a faithless former lover in about 1987, sold by him to Penthouse in 1994, and published in its January 1995 issue, after Jones had unsuccessfully sued to enjoin publication. The existence of such photos of Jones was, as noted above, one of the first things that Bennett mentioned, in his first conversation with her lawyer Gilbert Davis, according to Davis.

The class bias that helps explain why Anita Hill received so much warmer a reception in elite circles than Paula Jones may be a healthy thing, to the extent that it evidences the (relatively) declining significance of race as a source of prejudice and stereotyping. But it has not yet been proven that unsophisticated, big-haired, makeup-caked women from small hamlets in Arkansas – even ones who pose topless for sleazeball boyfriends – are any less likely to tell the truth than Yale-educated law professors like Anita Hill. To the contrary, lawyers are trained in devising clever ways of distorting the truth.

It’s true, and relevant, that Jones’s brother-in-law Mark Brown has called her a teaser and manipulator of men who would do anything for money or fame, and a sexual exhibitionist who had proudly displayed nude photos of herself to family members. But Brown – whom Jones and her sister Lydia have both dismissed as “crazy” – may not himself be the most credible of characters. According to the Post, in his home of Cabot, Arkansas, “he was led out of a town council meeting [in 1993] for shouting vulgarities at the mayor,” who “says the…. Marine Corps dropout is known around town for ‘blowing off’ in restaurants.”

Friends like Debra Ballentine have described Jones as friendly, open, honest, naive, and totally apolitical. And Jones, unlike Hill, has not been caught in any significant lies of much relevance to the alleged harassment. (In fact, her lawyers, like Hill’s, claim that she has passed a polygraph test; the examiner, James Wilt, of Vienna, Virginia, provided me with a copy of a letter he sent Davis stating that “it is my opinion Mrs. Jones was truthful in her responses” to questions about whether she had lied in describing her most graphic allegations against Clinton during a May 24, 1994, polygraph examination.)

While Hill’s specific allegations about Thomas cannot definitively be proved or disproved, some of her other statements appear to have been deliberately misleading. In sworn testimony one morning, for example, Hill denied – five times – any recollection of having been told that she might be able to spur Thomas to withdraw merely by making a confidential statement detailing her allegations, without ever going public. But that afternoon, after conferring with her lawyers, Hill corrected herself, volunteering that “there was some indication [by a key Democratic staffer] that [Thomas] might not wish to continue the process” if confronted with her statement.

Hill’s explanations of some other matters were patently incredible, such as her suggestions that the main reason she had followed her alleged harasser from the Education Department to the EEOC was that she feared she might otherwise find herself jobless. The overall pattern, detailed by Suzanne Garment in “Why Anita Hill Lost” in the January 1992 Commentary, was a “disquieting quality that she displayed…. as [being] more ambitious and calculating than she let on. Her testimony on this subject seemed to show a lack of candor, and this fact alone may have been a basis for mistrusting her.” She also had far stronger ideological disagreements with Thomas than she let on.

In addition, while Hill was praised by many friends and colleagues, others, like former EEOC colleague Phyllis Berry (who had been fired by Thomas), told the Senate that Hill was “untrustworthy, selfish, and extremely bitter,” after Thomas had given someone else a promotion Hill had wanted.

Much of the disbelief with which Jones has been received is attributable to her reputation (as of 1994) for flirtatiousness, provocative dress, and having slept around, as detailed in publications including People and Penthouse. It’s reasonable, and legally relevant, to speculate that Jones’s appearance, demeanor, and willingness to meet with Clinton alone for no apparent purpose may have emboldened him to think that sexual overtures would be welcome. But “that doesn’t mean that she had bad character or should be considered a target for some predator,” in the words of her lawyer Gilbert Davis. And it’s odd to hear such traits held against Jones by feminists who would ordinarily go ballistic at any suggestion that a flashy-looking woman was “asking for it.”

When Anita Hill came forward with legally dubious, ten-year-old claims long after any and all relevant statutes of limitations had run, you didn’t hear many of them dismissing her claims as legally frivolous. Jones, it seems, is different. “I read the complaint,” said Lynne Bernabei, a plaintiffs sexual harassment lawyer in Washington, on a CNN talk show, “and from a legal perspective, it seems like the worst she describes is womanizing, unwelcomed sexual advances, which may be morally or otherwise politically repugnant to people, but is simply not illegal.”

Wow. This is a feminist?

It’s true that Paula Jones’s legal claims have their weaknesses, especially her rather vague and implausible allegations that her supervisors at the Arkansas Industrial Development Commission discriminated against her on the job in retaliation for having displeased the governor by refusing to submit to his advances. But her legal theories are hardly frivolous. A single, extremely outrageous act of sexual harassment, without much more, can arguably support a “hostile working environment” claim, both under Title VII and under the older civil rights statutes cited by Jones.

THE TRUTH WILL OUT HERE

The president’s choice of a legal strategy is hardly what one might expect from a falsely accused person victimized by a complete fabrication. If “nothing happened in that hotel,” as Bennett says, why not simply reveal all relevant facts, cooperate in discovery, seek summary judgment, and get rid of the case? Why spend $2 million in lawyering, desperately seeking to prevent the evidence from coming out? And if nothing really happened, why did then-White House special counsel Lloyd Cutler go on television on May 24, 1994, and warn: “The entire presidency could turn on the occurrence of a trial like this” ?

Jones’s lawyers have visions of putting the president between the rock of damaging admissions and the hard place of possible perjury; of troopers testifying about a pattern and practice of Clintonian predation; of grilling alleged former lovers of the president to ask them if they noticed a “distinguishing mark”; of compelling a physicial examination of the president and getting his medical records (much sought after by the Dole campaign) to find any such mark, or any evidence that one has been removed. But Bennett has shut them out, so far, by losing on the presidential immunity claim in the district court and appealing, and then losing in the Eighth Circuit and appealing again, first for en bane review, then for Supreme Court review. Meanwhile, there has been no factual answer for Clinton to file. No depositions. No interrogatories. No discovery into whether there is, in fact, a distinguishing mark. No trial.

Assuming Clinton’s reelection, most handicappers think that the Supreme Court will reject at least the broadest aspects of Clinton’s claim and send the case back to lower courts for further proceedings. Bennett has a wave of other motions to dismiss up his sleeve – for failure to state a claim on which relief can be granted and for excessive delay before filing suit, at least. But there could well be discovery, and possibly even a trial, during a Clinton second term. “The truth will out here,” says Jones attorney Gil Davis, optimistically. “If she’s not telling the truth, well, shame on her.”

But given that Paula Jones’s claims against Bill Clinton are both more serious by far than Anita Hill’s against Clarence Thomas, and supported by much stronger corroborating evidence, why have the media and a lot of other people acted as though the opposite were true?

Several reasons. Most obviously, Anita Hill’s charges were spread before the public precisely at the time when Thomas was under the white-hot spotlight of a Supreme Court confirmation proceeding. She was a superficially impressive accuser, far more so than Jones. The subsequent televised hearings that transfixed the nation made it impossible to ignore her charges. And many people – not just liberals – had already been so put off by Thomas’s evasive performance and lack of candor about his views on issues, in his initial hearing, that they were hardly prepared to give him the benefit of the doubt when he swore passionately that not one particle of Hill’s detailed account was true.

Jones’s allegations, on the other hand, were so seamy, and charged Clinton with such incredibly depraved conduct, and first came to light in such a suspect way, that a lot of people didn’t want to think about them. One reason was scandal fatigue: With so many allegations of fraud, perjury, and other wrongdoing swirling around the Clintons, most people had little interest in thinking about what many news organizations dismissed as just another “sex scandal” – especially one in which there can never be dispositive proof of exactly what happened. And they didn’t have to think about it, partly because neither Paula Jones nor Bill Clinton was testifying at any televised hearing, and partly because the media didn’t publish the evidence.

The disparate treatment of the two episodes also has something to do with the difference between justices and presidents. If we don’t like a Supreme Court nominee, we can always hope that if he’s defeated, we’ll like the next one better; if Clintons defeated, we know who we’ll get: Bob Dole. Moreover, we expect our justices to be wise, pure, honest, moral, reflective oracles in black robes, thinking deep thoughts in their marble temple and saving us from our baser selves. Presidents are different. If Bill Clinton’s political success has taught us anything, it is that a president can win strong public approval despite broad and deep public doubts as to his moral character and truthfulness. There also seems to be a widespread assumption that whatever it takes to clamber that high on the slippery pole of political success, and then to do the messier aspects of the job, can only be found in a person driven by an almost superhuman lust for power and other gargantuan appetites.

But ultimately, an inescapable part of the disparate treatment of Thomas and Clinton is simple political orientation. One of the most striking things about the Hill-Thomas battle was how many people seemed confident that they knew that he (or she) was telling the truth, before the evidence was in, and how almost everyone who believed her happened to be on the liberal side, and almost everyone who believed him on the conservative side. Now, with Paula Jones, there’s been something of an ideological inversion.

HOW TO EXPLAIN THE MAINSTREAM

What explains the media’s manifest disdain for Paula Jones and Clarence Thomas, and admiration for Anita Hill? Part of it is class bias against what one Washington bureau chief called “some sleazy woman with big hair coming out of the trailer parks.” But that’s not all of it. Not, that is, unless you believe that the press would have given similar coverage to a similar accuser, making similar allegations, supported by similar evidence, against Newt Gingrich, or Jesse Helms, or George Bush, or Steve Forbes.

That’s not what I believe. I think that the political orientations of most reporters, editors, and producers are at work here. It’s no accident that in a survey by The Freedom Forum and the Roper Center of 139 Washington, D.C., bureau chiefs and congressional correspondents, 89 percent of respondents said they had voted for Bill Clinton in 1992 and 7 percent for then-President Bush. Mickey Kaus, then of The New Republic, was more honest than most of his colleagues when he wrote after Jones’s February 1994 press conference: “I thought it wasn’t a big story, but not because I didn’t believe it…. How can reporters justify ignoring Jones while paying so much attention to Anita Hill or the accusers of Senator Packwood?… Clinton is… the best president we’ve had in a long time. That is the unspoken reason that the sex charges haven’t received as much play as you might expect…. Few journalists want to see the president crippled.”

Not this president, anyway.

If nothing else, these two episodes illustrate how hard it is for any of us to see clearly through the fog of preconception in which we all live to a greater or lesser degree. I would suggest, however, that those who have made Anita Hill a heroine, Clarence Thomas a goat, and Paula Jones a pariah, need to try harder to overcome their prejudices. They need to look the facts in the face.

The post Her Case Against Clinton – Stronger Than Anita Hill’s Against Thomas appeared first on Stuart Taylor, Jr..

Victim Of A Ten-Year Vendetta

Stuart Taylor, Jr.

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.

These suspicions were fanned by Treadwell’s inability to recall details of his discussions with senior partners about some transactions so smelly that he had balked at closing them, provoking a loud ruckus in the law firm’s offices.

The interview ended with Genge exuding sarcasm and disbelief, and with the aroma of threatened indictment hanging heavy in the air.

Lothar Genge-a hard-nosed career prosecutor who says that "I came from a Wall Street firm myself, and I know how those firms operate"-had visions of nailing some big-shot Philadelphia lawyers. He saw their former junior partner Ken Treadwell as a crucial, but less than forthcoming, link in his evidentiary chain. And it was soon to become clear that Treadwell could avoid revocation of his immunity and indictment, only by admitting guilt and fingering one or more senior partners at Blank, Rome.

"He came home a different person that day," recalls his wife, Cindy Treadwell. "His world was totally shattered."

Thus began a ten-year ordeal for Treadwell and his young family, one that has nearly bankrupted them: pressured throughout 1986 to inculpate himself and senior partners at Blank, Rome; almost indicted in 1987, then spared, When Genge was overruled by career justice Department prosecutors in Washington, D.C.; almost indicted again in 1989, then spared again; indicted in 1993; and found guilty on two felony counts in January 1995, by a jury that acquitted him on 11 other counts.

Treadwell was vindicated in a September 12, 1995, opinion by the trial judge, William Hoeveler, of the U.S. district court in Miami. Portraying Treadwell as an honest and innocent victim of prosecutorial overreaching, the judge entered a judgment of acquittal. Faulting the prosecution especially for violating Treadwell’s immunity agreement, Hoeveler found "respectable evidence" that this was done "in bad faith," because of Treadwell’s refusal to finger Blank. Rome.

But it’s not over yet: At this writing, Genge is seeking Justice Department permission to appeal.

So while Treadwell now has a thriving law practice, as a partner with the West Palm Beach firm of Lewis, Vegosen, Rosenbach & Silber-and has the time and peace of mind for things like coaching his daughter’s basketball team-it’s hard for him to forget that Genge is still after him.

Eleven-year-old Kimberley Treadwell "cannot remember when Daddy wasn’t in trouble with the government," her mother observes.

For Ken Treadwell to be in that kind of trouble has baffled almost everyone who knows him. His honesty and decency are acclaimed with extraordinary fervency by acquaintances from childhood, college, law school, professional life, church, and community organizations.

The character testimony of Patricia Fountain, a fellow church member whom the Treadwells took into their home with her son during a temporary separation from her husband, was representative: "I think he is the most honest, law-abiding, caring person I have ever met."

To Genge, on the other hand, Treadwell is a man who lost his moral compass, a man who went along with a fraud and lied to cover it up.

But is the real liar in this case Kenneth Treadwell-or Lothar Genge?

A review of Treadwell’s case, including copious documentation amassed by Irvin Nathan of Arnold & Porter, Treadwell’s lawyer, reveals (in my opinion) rampant prosecutorial misconduct over a ten-year period, including numerous false and misleading statements by Genge to the court and opposing counsel, as well as crude coaching and crass intimidation of witnesses [see sidebar "A Pattern of Misconduct".

This review of the court record and interviews with key participants also provides an unusual (if cloudy) window into what happened inside a major law firm when its biggest client demanded that it close some highly irregular deals in a very big hurry in the summer of 1984. It suggests that Genge’s suspicions that someone in the Blank, Rome partnership may have facilitated fraud, and that Treadwell might not be telling all he knew, were understandable, if unproven.

Still, I think that Treadwell has earned the benefit of the doubt, even in the face of some troubling evidence. Ask yourself: Did Treadwell do anything different from what you would have done, had you been in his shoes? Might you be dragged through an ordeal like his, or even end up in jail, if unlucky enough to be in the wrong place, at the wrong time, with the wrong client-and then to fall into the hands of the wrong prosecutor?

BLANK, ROME’S S&L BUSINESS

It’s not hard to see why Lothar Genge and his colleagues suspected that much of the responsibility for Sunrise’s failure-which cost taxpayers hundreds of millions of dollars-could be laid at the door of the aggressive, entrepreneurial law firm that by 1980 had become one of the largest in Philadelphia.

Blank, Rome was instrumental in the S&L’s meteoric rise, fueled by the reckless overinvestment in commercial real estate that was endemic among S&Ls in the post-deregulation early 1980s. And after the crash, the evidence was sufficiently unflattering to persuade Blank, Rome to pay $50 million (covered by insurance) in 1990 to settle a gaggle of civil suits by stockholders and the government, charging the law firm with (among other things) urging Sunrise to make risky loans to generate fees.

One Blank, Rome partner, the high-living Michael Foxman, personally founded Sunrise in 1979, opening its first office in May 1980 in Boynton Beach, while Blank, Rome opened a branch in West Palm Beach to service its new, captive client. Another senior partner, M. Kalman Gitomer, moved to the Florida branch and became the first chairman of the Sunrise board; Foxman succeeded him. Both were major sunrise stockholders, with other Blank, Rome partners holding smaller interests.

Foxman, who was trying to create a chain of S&Ls around the country, suggested in a memo to Gitomer that the law firm should run Sunrise like a "benevolent dictatorship."

But how much control the firm had over Sunrise as of 1984, when the major fraudulent transactions occurred-and how much the lawyers knew-is hotly disputed. For by that time, Robert Jacoby, a smooth, presentable young banker whom Foxman had plucked from obscurity to be Sunrise’s first president, was trying to run his own show.

Jacoby had ousted and replaced Foxman as chairman (with help from some of Foxman’s partnets) in October 1983. And as Sunrise became a hot stock on Wall Street, shooting from $3 to $31 a share from 1981 to 1984, Jacoby shed his obscurity. Still in his early thirties, he told Forbes magazine in early 1984: "I’m an ego-status person. I have a pretty wife, a Jaguar, a Mercedes, a beautiful home, a yacht. I want a Ferrari, a bigger house, a bigger boat. I want an airplane, an apartment in New York."

Jacoby was described by the prosecutor at his 1989 trial as the "kingpin" of Sunrise, and as a "brazen perjurer"-which he clearly was-who had lied to the Blank, Rome lawyers. But the same prosecutor-Lothar Genge-put the same brazen perjurer on the stand five years later, at Treadwell’s trial, to claim that Sunrise had been controlled by Blank, Rome, and that the lawyers had been in on the fraud.

Regardless of who controlled whom, "overnight, Sunrise became the firm’s biggest client," Philadelphia Magazine reported in November 1985. "In 1984 alone… Blank, Rome billed roughly $5 million in legal fees through Sunrise, probably more than 10 percent of its total billings … On the larger loans, the borrower had to pay the law firm a percentage for its fee. The more money Foxman loaned out of Sunrise, the more flowed into Blank, Rome …It was all very cozy."

There was regulatory advice and litigation, but most of the legal work focused on nuts-and-bolts closings of real estate transactions. That was what Kenneth Treadwell did. Joining the big firm in early 1980, at the age of 31, he moved that December from Philadelphia to the West Palm Beach branch, becoming head of its real estate section in 1983 and making partner in early 1984.

SUNRISE VEERS INTO FRAUD

Like most of the S&Ls that crashed during the post-deregulation 1980s, Sunrise would probably have become insolvent even if there had been no fraud, because of wildly imprudent lending practices that had, by 1984, become a formula for disaster.

Sunrise moved away from traditional S&L home mortgages into the risky and speculative business of financing shopping centers and other commercial real estate. It paid high interest rates to attract federally insured deposits, and offered developers 100 percent-plus financing so that they could take out huge loans with no money down and prepaid interest.

Sunrise rode Jacoby’s smooth salesmanship and Florida’s land boom of the early 1980s to grow in four years from one start-up office to 14 branches around South Florida, with subsidiaries in Tallahassee and Texas, and from $4.7 million to $ 1.4 billion in assets. It was the nation’s fastest-growing S&L, and one of the most profitable-at least on paper, based largely on up-front fees that borrowers paid to Sunrise out of their Sunrise loans.

The fraud of which Jacoby and other Sunrise insiders were convicted was not the kind of outright theft that occurred at some S&Ls. Indeed, it’s far from clear that Jacoby or anyone else at Sunrise believed at the time that he was doing any thing criminal, or harming the institution.

The fraud had its origins in various stratagems in late 1983 to boost growth and profits by evading regulatory constraints-in particular, a civil regulation capping the amount of loans to any one borrower.

Jacoby wanted to keep pumping out loans to Sunrise’s two biggest borrowers, a developer named William Frederick and his partner Thomas Moye. They had strip shopping center deals cooking all over the state, and ostentatious badges of success, including a jet, a Rolls-Royce, and a 120-foot yacht.

Blank, Rome regulatory lawyers helped Sunrise exploit loopholes in the loans-to-one-borrower regulation, such as structuring transactions to minimize Frederick’s formal ownership percentage of the entries receiving the loans.

What took such apparently legal circumventions across the line into fraud by late 1983 was Sunrise’s purported lending of millions of dollars to people who clearly lacked the financial means to pay back the loans, and who were acting as nominees, or stand-ins, for Frederick and Moye, while falsely signing certifications to the contrary.

Whether anyone at Blank, Rome was culpably involved in these fraudulent 1983 deals, and what Ken Treadwell knew about them, is in dispute. The evidence indicates, however, that Treadwell had no role in them: He was not a regulatory lawyer, provided no loans-to-one-borrower advice to Sunrise, and did not close any of the suspect 1983 transactions.

The fraud evolved into a cover-up in 1984, when Frederick and Moye had run into cash flow problems, and regulators started to tighten the screws.

The regulators-worried about Sunrise’s having too many eggs in the Frederick-Moye basket-came to have an increasingly adversarial relationship with Sunrise during 1984. They considered a cease-and-desist order, but instead-under threat of litigation by Sunrise and Blank, Rome-negotiated a "supervisory agreement" with Sunrise in April 1984. Its restrictions included special underwriting re quirements and board approval for every loan above $500,000.

What the regulators did not know-because Sunrise concealed it-was that Frederick and Moye were in serious default on their interest payments on many of their more than $150 million in loans. By this time, disclosure of the magnitude of the problems would have taken the bloom off the Sunrise rose, and perhaps triggered a regulatory takeover. A foreclosure action against Frederick and Moye might also have brought Sunrise down-and they knew it. So the defaulting borrowers had the bank over a barrel.

Jacoby and other Sunrise executives used various gimmicks to hide both the Frederick-Moye defaults and a succession of huge overdrafts-mounting above $4 million-that Frederick and Moye wrote on their checking accounts, both for interest "payments" and for such baubles as a new yacht and a $ 1.4 million, 26-caratdiamond from Christie’s

SUNRISE OFFICERS cooked the books by having Frederick submit worthless checks on out-of-state banks at the end of each month, so that the computer generated, month’s-end delinquency reports would show his loans as current. The checks soon bounced, but Sunrise used other gimmicks to hide that.

WHAT TREADWELL KNEW

Ken Treadwell (the evidence shows) knew nothing about any of this until June 1984, when he learned of the Frederick-Moye overdrafts-but not the fraudulent accounting tricks-from Edward Fitzgerald, Jr., who then managed Blank, Rome’s branch in West Palm Beach.

Treadwell’s initial response was to tell Frederick, Moye, and Sunrise executives, at a June 12, 1984, meeting, that the overdrafts were illegal, and should be promptly paid off. This did not endear him to Frederick and Moye, who came to view him as a goody two-shoes who was always getting in their way with his legalistic nit-picking.

Treadwell’s specialty was "workouts": restructuring problem loans to protect lenders like Sunrise while accommodating borrowers’ cash flow problems. He suggested in a June 13, 1984, memo to Jacoby that Sunrise work out the Frederick-Moye problem by buying some of their more valuable properties, thereby generating cash to pay off their overdrafts. This was appropriate, commonsense legal advice. Or so prosecutor Genge said five years later, at jacoby’s 1989 trial.

(Later still, Genge took a more sinister view, arguing that Treadwell became part of the cover-up in June 1984 by failing to report the overdrafts to the regulators or the board. But Judge Hoeveler ultimately found that as outside counsel, Treadwell had no such duty.)

Nor does it appear that Treadwell had any idea of the seriousness of the problems. He showed his confidence in Sunrise’s future by agreeing informally with Jacoby, in mid-August 1984, to leave his Blank, Rome partnership (as he ended up doing on October 1) to become general counsel and executive vice-president at Sunrise

In hindsight, it seems a strange move for a successful young partner, even one with a long-standing interest in business: Treadwell was betting his career on an S&L that was awash in bad loans and overdrafts, that was heavily exposed to two sleazy borrowers whom he despised, that was coming under increasingly tough regulatory scrutiny, and that was soon to go belly-up amid a spate of prosecutions.

But hindsight is always twenty-twenty. At the time, Treadwell had been assured by Jacoby (falsely) that the overdrafts were being paid back. He didn’t have to deal much with Frederick and Moye. They seemed likely to sell some shopping centers soon. And Sunrise had already begun reducing its loan exposure to them.

Indeed, at one point Jacoby joked to Treadwell that he was going to tell Frederick-who wanted Treadwell fired from Blank, Rome-that the good news was, Treadwell was leaving the firm; the bad news was, he was coming to Sunrise.

The new job would mean a salary increase from about $75,000 to about $110,000, plus perks. Jacoby was hoping to engineer a buyout of Sunrise that would benefit its top officers, including Treadwell. And, Treadwell recalls, "I had no inkling any of these people [at Sunrise] were involved in criminal actions. I had a high regard for them"

"Jacoby essentially conned Ken," Irvin Nathan, Treadwell’s lawyer, was later to tell the jury, "into believing that the bank was really quite healthy, notwithstanding what the regulators were saying, and that the bank had a bright future."

Meanwhile, a bright future hardly seemed assured for the West Palm Beach branch of Blank, Rome. The most senior partner there, Kalman Gitomer, was recovering from a heart attack. The most senior active partner, Fitzgerald, was an alcoholic who would (he later testified) "come in very late, usually with a hangover. "Fitzgerald was told in mid-August 1984 by Marvin Comisky, the prominent Philadelphia trial lawyer who was the firm’s managing partner, that he was being pulled back to Philadelphia. And Ian Comisky, Marvin’s son- whom Fitzgerald saw as an agent of his father- seemed poised to take over the branch.

Treadwell was still in good standing at Blank, Rome. But the branch seemed on the verge of falling apart. Fitzgerald planned to start his own firm or join another, and asked Treadwell and other real estate lawyers to join him. Instead, Treadwell decided to go to Sunrise. Jacoby later testified that he had made an "aggressive pitch" for the job.

The events that led to Treadwell’s indictment- more than eight years later-unfolded between late August and October 1, 1984, the date of his formal move from Blank, Rome to Sunrise.

SOME SMELLY DEALS

Treadwell took a six-day business trip to Germany with a Sunrise executive and another Blank, Rome lawyer in late August, returning very late at night on August 29.

While he was gone, Sunrise was suddenly threatened with a disaster that was apparently unknown anyone at Blank, Rome: The outside auditors, Deloitte, Haskins & Sells, had discovered the Frederick-Moye overdrafts, and had said they would issue a qualified financial statement on Sunrise’s 1984 annual report unless the overdrafts were paid by August 31.

Jacoby and Frederick made some hasty arrangements. The plan was to have Frederick and Moye sell some pieces of land they owned to three (or four) of their associates, and take out secured loans themselves, for a total of $3.5 million. Sunrise would lend the buyers the money to pay Frederick and Moye, who would use it to pay their overdrafts.

This would have been a legal workout if the sales had been legitimate, arm’s-length transactions. But there were, at the very least, serious irregularities.

The three "buyers" were handpicked by Frederick; none had even applied for loans; two of them-Virginia Valosin, a cousin and $24,000-a-year employee of Frederick, with a net worth of about $1,000, and Merle Wood, his yacht broker-did not qualify as plausible buyers; they appear to have been stand-ins for Frederick, who guaranteed all the loans; and the legal documentation was grossly deficient.

Moreover, the plan for Sunrise to make six $500,000 loans and one for $305,000 was a transparent evasion of the supervisory agreement’s restrictions on loans of more than$500,000.

The transactions were to be closed at Blank, Rome’s offices on August 30, 1984. Dana Scheer, a senior associate-and, ten years later, Treadwell’s co-defendant-was told by partner Edward Fitzgerald to handle the closings. But Scheer had major concerns about the transactions.

"These things don’t even come close to passing the smell test," says David Batlle, a Florida bank regulatory official who has worked closely with Genge. But Scheer later told the grand jury that he had been worried about possible civil law violations and malpractice liability-not criminal exposure.

On August 29 Scheer mentioned his concerns both to Jacoby and to Frederick-who blew up and demanded the phone number of the main Blank, Rome office in Philadelphia. In a memo to the file that day, Scheer stated that Jacoby had told him not to worry, and to close the loans immediately "notwithstanding having no surveys, appraisals, title commitments, utility letters, permits, opinions of counsel," and in spite of other glaring irregularities.

In subsequent grand jury testimony, Scheer said he had also been concerned that the series of $500,000 loans seemed "structured" to get around the supervisory agreement. He had gone to Fitzgerald’s office and mentioned some of his concerns to him and a senior partner (Scheer was unsure which one) visiting from Philadelphia.

"They indicated to me in no uncertain terms," Scheer told the grand jury, "that if I was instructed by a senior member of Sunrise Savings and Loan, our client, to close these transactions, I was to go ahead and close them."

A BAD DAY AT THE OFFICE

But Scheer was still troubled, so he took his concerns to Treadwell the next morning, August 30.

For Treadwell-who had just come off a tiring overseas flight a few hours before, who had never met any of the buyer-borrowers now waiting in the reception area, and who was heard to say, "I am not sure what is going on here"-this turned out to be the quintessential bad day at the office.

(Neither Scheer nor Treadwell testified at their trial, and neither will discuss the facts of their cases it this stage. So this account of the day’s events is cobbled together from prior statements by them and others.)

Treadwell said, "Let’s see what we can do," according to Scheer’s 1987 grand jury testimony. The two lawyers then met with Charles Powell, a real estate broker and small developer who was the most plausible buyer to show up that day, and the only one with whom Treadwell spoke. Powell was accompanied by one Ronald Berkovitz, a career conman soon to end up in federal prison for unrelated crimes. Treadwell said he did not understand the transactions. Powell responded that Treadwell did not need to understand, and should just close the deals.

According to Scheer’s testimony, "Treadwell and I said to them, "Look, we don’t have title work. We do not have surveys. We do not even know that Frederick owns some of the properties that you are buying …. And Treadwell said to Powell, ‘You may want to get counsel because we represent only Sunrise in these transactions. We’re not representing your interests."

Treadwell’s advice would have aborted the deal if Powell had followed it. Instead, it precipitated a huge ruckus, the like of which is seldom seen in die offices of an establishment law firm.

Frederick and Moye, who were hovering nearby, exploded when they heard what Treadwell had said, and came in screaming and cursing at him for trying to "screw up" the deal. According to subsequent testimony by Berkovitz, Moye told Treadwell "that he’s had enough trouble from him today and in the past and he wasn’t about to take any more, and that he was tired of bailing Sunrise out of their problems, and that [Treadwell] should understand who was paying the bills."

Then the 5-foot-6-inch Moye came at the 6-foot-5-inch Treadwell and threatened him with a fistfight, saying, "The bigger they are, the harder they fall."

Scheer later painted the scene for the grand jury: "Mr. Moye had keys, as I recall, sitting in his fist that he was going to impound on Mr. Treadwell’s face, and Mr. Treadwell was standing there with a clenched fist also."

The office was in an upheaval, with secretaries running about. It must have presented quite a spectacle for the three senior partners who, headed by Marvin Comisky, were down from Philadelphia that day.

"Marvin was the senior, senior, senior partner, the managing partner of Blank, Rome, which is a big law firm," Jacoby later told the grand jury. "So he had, you know, great stature and status." Jacoby said he had been meeting in a nearby office with the (then) 68-year-old Comisky about matters including Comisky’s plan to replace Ed Fitzgerald as head of the branch, and Jacoby’s plan to hire Treadwell. Comisky was "upset" by the uproar, and spoke to Treadwell about it, according to Jacoby.

Meanwhile, Frederick told Jacoby he wanted Treadwell fired.

Treadwell, for his part, told Fitzgerald (according to the latter’s subsequent testimony) that he couldn’t stand Frederick and Moye, that "he didn’t understand why the loans had to be done in such immense pressure," and that he would not close them. "He was very upset," Fitzgerald added, "because he felt that [Sunrise] was putting undue pressure on us to close a loan, and that they shouldn’t be able to do that, and he was being overruled."

Overruled by whom? And what would you have done in Treadwell’s shoes, if some senior partner was over ruling you?

HOW THE LOANS GOT CLOSED

The witnesses’ recollections are in hopeless conflict as to exactly what happened after Treadwell’s near-fist-fight with Moye.

Treadwell was later to tell prosecutors that he had stormed off in disgust and refused to participate in the closings, which had been conducted by Scheer.

In subsequent interviews, he appears to have added that he had a vague recollection that he and Scheer "would have" gone to discuss the problems with Fitzgerald and one or more of the senior partners from Philadelphia-and perhaps with Sunrise’s Jacoby-and that perhaps he and Scheer had been told the loans should be closed. But Treadwell could not be sure who had said what or recall other specifics.

Scheer-testifying in the grand jury under threat of indictment-had a different recollection: "Treadwell walks away from me into the back office, where I knew Marvin Comisky, the senior member of this law firm, was meeting with Rob Jacoby and perhaps Bernie [Bernard] Glassman [another senior partner from Philadelphia]…A couple hours later, Treadwell comes to me and says, ‘Close the loans. I have been instructed to close the loans.’

But this account appears inconsistent with others by Scheer. For one, he told Fitzgerald on the day of the closings (according to a civil deposition by the latter in 1992) that he was ordered to close the loans by Kalman Gitomer, who had said that "if he didn’t do it, he would be fired."

Fitzgerald also testified that he had advised Scheer to do as he was told rather than putting his job in jeopardy. But Fitzgerald stressed in his testimony that he had been relieved of his responsibilities by Marvin Comisky, and had only come in that day to clean out his office.

"I sort of threw up my hands to the partner from Philadelphia, either Mr. Glassman or Mr. [Richard] Rosenbleeth," Fitzgerald recalled in 1987 grand jury testimony, "and I told them, ‘You guys want to run this office from Philadelphia? Here is your first opportunity. Go do it.’ . .

"I think the relationship between Philadelphia and West Palm Beach at that time was so bad that I think Philadelphia, whether or not they knew all the details, decided they were going to force the settlement down the throat of Mr. Scheer and Mr. Treadwell."

But there is also evidence suggesting that perhaps it was Sunrise chairman Jacoby who gave the word to Scheer to close the loans, with no clear, direct input from anyone at Blank, Rome more senior than the recently demoted, chronically hung-over Fitzgerald himself.

In any event, that afternoon Scheer closed the three $500,000 loans to Charles Powell, two $500,000 loans to Frederick, and a $305,000 loan to Merle Wood. "I have a family to support," Scheer later told the grand jury, "and I was not going to jeopardize my job."

There is conflicting testimony on whether Treadwell attended any of the closings. Berkovitz testified that Treadwell participated in the Powell closing, along with Scheer. But the most credible evidence-including Scheer’s grand jury testimony and a paralegal’s trial testimony-supports Treadwell’s subsequent statements to investigators that he refused to participate.

And what did the most senior partner in all of Blank, Rome have to say about all this? That’s what prosecutor Genge most wanted to know, but could never pin down.

Scheer told the grand jury that he had expressed "general concerns" to Comisky, but Comisky had made no "definitive statement about the transactions." Treadwell told investigators that he might have discussed the situation with Comisky that day, and did do so that evening at dinner. But his recollections were vague, and he could not recall Comisky saying much.

The $500,000 Virginia Valosin loan closed the next day. At each closing, the borrower signed a certification that he/she was not a "nominee" for anyone else. Wood later testified that he was a Frederick nominee, and his certification was false. Powell has always insisted that his was true. Valosin testified: "I had a feeling that everything was not quite as it should be, but I had trust in Mr. Frederick."

There was another odd thing about these closings. The law firm initially prepared 36 Blank, Rome checks to disburse the proceeds from its trust account, with "Frederick Workout" in each legend. But then-apparently at the request of a Sunrise official, in what Genge calls a "cover-up"-someone scissored off the legends, along with Scheer’s signatures. It’s unclear who did this. There is no evidence that Treadwell-who billed Sunrise one hour that day on "refinancing of 3.5 million [dollars] in Frederick loans"-knew about it.

An identical set of Blank, Rome checks was then issued and signed by Scheer, with the names of the borrowers in the legends. These checks were used by Sunrise to pay die Frederick-Moye overdrafts, and to avert an adverse report by the outside auditors.

Did Ken Treadwell do anything on August 30, 1984, that warrants prosecution, or even criticism? That depends on whom one believes.

If you believe Scheer’s grand jury testimony (which doesn’t mesh with other evidence), then Treadwell relayed an order from a more senior partner to Scheer to close the deals, while washing his own hands of the matter.

That would not necessarily have been a crime. But it would have been pretty lame. And it would suggest that Treadwell’s subsequent statements to prosecutors were both self-serving and highly misleading.

If you believe con man Ronald Berkovitz’s trial testimony (contradicted by more credible witnesses), then Treadwell didn’t wash his hands of the matter; he helped close the deals, and later lied about it.

If you believe the investigators’ rough notes of Treadwell’s last two interviews with Genge, then Treadwell had some discussions about the matter with senior partners, but couldn’t-or wouldn’t-recall which ones, or exactly what was said.

I believe that Treadwell did the best he could to extricate himself honorably from a sticky situation. But I’ll never know for sure exactly what happened.

Imagine yourself in Treadwell’s shoes that day. What would you have done?

ANOTHER QUICK FIX: SEAWALK

The August 30, 1984, deals provided a temporary fix for the Frederick-Moye overdrafts. But the underlying problem remained: They could not pay the rapidly accruing interest on their loans.

And soon there came another day of reckoning. Sunrise had a September 30, 1984, deadline to file a 10Q report with the Federal Home Loan Bank Board. Some $70 million of Frederick-Moye loans would have to be reported as seriously delinquent unless they could come up with about $3 million in interest.

Jacoby settled on a plan to generate a $3.5 million profit for Frederick and Moye by having Sunrise buy from them an undeveloped waterfront property called Seawalk for $13.5 million, less their $10 million mortgage (including accrued interest). Treadwell and Scheer closed the purchase on September 28, 1984.

This would have been a legitimate workout if Seawalk had been worth $13.5 million. But the price appears to have been inflated. It was unsupported by then-existing appraisals or other evidence of fair market value. And Jacoby testified at Treadwell’s trial that he had been indifferent to Seawalk’s value when he negotiated the price with Frederick and Moye, and that his sole objective had been to enable them to pay the overdue interest, and to meet their demand for $500,000 in extra cash to go along with the deal. A price of $13.5 million did the trick.

Whether Treadwell and Scheer knew the price was inflated was to be a central issue at their trial. There is no evidence that either was told that Seawalk was not worth $13.5 million. Nor that they knew that there was no appraisal or resale contract to justify the price. Jacoby and a subordinate apparently misled them about this-as they later (on October 3) misled the board of directors, by claiming, in Treadwell’s presence, that Sunrise had had a $14.7 million appraisal and a contract to resell Seawalk for over $ 13.5 million.

What Treadwell and Scheer did know was that the deal was conceived and closed in extraordinary haste-48 hours in all-to get it on the books in time for the September 30 regulatory filing. Scheer also knew that the price was $5 million more than the $8.5 million that Frederick and Moye had paid for Seawalk in December 1983, with a $9.75 million Sunrise loan. There is no evidence that Scheer (who had handled that closing) told Treadwell this, but it seems likely.

Does this mean that Treadwell knew that Seawalk’s fair market value was less than $13.5 million, as prosecutor Genge now claims, and as the jury implicitly found by convicting him (while acquitting Scheer) on the Seawalk count?

Not in Judge Hoeveler’s view. As he stressed, even assuming that Treadwell knew of the $8.5 million sale price in 1983, that would not necessarily fix Seawalks fair market value in September 1984: It might have been a bargain in 1983. Or it might have appreciated rapidly. Or-as Jacoby told the board-Sunrise might have had an appraisal and a resale contract supporting the price.

In addition, as five real estate lawyers (including two prosecution witnesses) testified at Treadwell’s trial, it is not the job of a lawyer closing a real estate purchase to look at appraisals or second-guess the client on fair market value.

Indeed, during the Jacoby prosecution in 1988 and 1989, prosecutor Genge stressed that no Blank, Rome lawyer had played a culpable role in the Seawalk deal. Spurning Jacoby’s efforts to shift responsibility to the lawyers for what he had done, Genge said that the lawyers had merely "prepared the closing documents, your typical closing," after Jacoby had set the price.

"The attorneys of Blank, Rome had nothing to do with that, with fixing the price or anything like that," Genge told Judge Hoeveler at a November 1, 1988, pre-trial hearing. "I can tell you that again, no evidence, no papers, no nothing to suggest that the attorneys had anything to do with establishing the purchase price of Seawalk, and that’s the criminal [violation]."

That was then. But Genge was later to claim that Treadwell had knowingly played an "integral part" in setting the inflated Seawalk price.

This was, as Judge Hoeveler later found in throwing out Treadwell’s conviction on Seawalk, "a diametrically opposed version … [an] about-face by the prosecution [that] offends basic notions of fairness."

Genge responded, in a motion for reconsideration, that the judge had "mistakenly" taken his 1988 and 1989 statements out of context, and that "the government’s fundamental theory with respect to Treadwell’s complicity in Seawalk has always remained the same." He did not reconcile this with his prior statements that Treadwell had no complicity in fraud involving Seawalk.

Genge’s motion also stressed that during the Jacoby prosecution he had referred to Treadwell and Scheer as coconspirators with Jacoby-neglecting to mention that he had done so with reference to the transactions of August 30, 1984, not the Seawalk purchase.

Finally, Genge’s motion stressed that after Jacoby had been convicted and become a cooperating witness in 1992, he had "provided the government with a much more detailed view of the very active role of Treadwell at Sunrise in the Seawalk transaction." Genge said that this Jacoby information, combined with the 1986 grand jury testimony of another Sunrise official, Lonnie Merrill, had clinched the case against Treadwell on Seawalk.

But as Judge Hoeveler found, the Jacoby-Merrill testimony against Treadwell on Seawalk was logically unpersuasive-although it apparently persuaded the jury-even if believed.

And as Nathan has claimed, their testimony is not worthy of belief. It gives off a strong whiff of concoction, both because of the way their stories initially emerged under leading questions by Genge, and because of the important new touches that both witnesses added at Treadwell’s trial-ten years after the fact-in the wake of long hours of pre-trial prep sessions with Genge [see sidebar "A Yellow Piece of Paper"].

While the evidence supports Treadwell’s innocence of any crime in the Seawalk transaction, another question lingers: Wouldn’t a careful lawyer have smelled a problem, and raised some questions?

Or was Treadwell entitled to assume that his client and soon-to-be boss Jacoby-whom nobody at the time thought of as a crook-was doing an honest deal, and that the still-outside counsel’s job was to do the client’s bidding and get the paperwork in order?

Again, what would you have done? Go to Jacoby and make an extraordinary request to see a copy of any Seawalk appraisals and resale contract? Or what?

SUNRISE SUNSETS

On October 1, 1984, three days after the Seawalk closing, Treadwell left his Blank, Rome partnership to go in-house at Sunrise.

His relationship with the law firm remained close. Scheer told the grand jury that Marvin Comisky had said that "Treadwell was still the guy I was to answer to," and should be treated as though he were still a Blank, Rome partner.

By all accounts, once at Sunrise, Treadwell did his best to work out the S&L’s bad loans. He has never been accused of any fraudulent activity after he went in-house. But with hundreds of bad loans, the S&L was too far gone to be saved from insolvency by Treadwell or anyone else.

With things sliding rapidly downhill, the regulators pushed out Jacoby and his top managers by May 1985. They took over completely on July 18, 1995, declaring Sunrise insolvent and its stock worthless, and putting it into receivership.

By that time, Blank, Rome and then-partners Foxman and Gitomer had been named as defendants in shareholder suits filed in U.S. district court in Philadelphia. Other Blank, Rome partners and former partners, including Treadwell, were later to be named as well, and in a civil suit by the government.

The new management quickly fired Blank, Rome. Ken Treadwell, however, was kept on at Sunrise for more than a year after Jacoby’s removal, winning glowing reviews from T.E. Salb, the new president installed by the regulators.

Gary Woodfield, a former federal prosecutor whom Treadwell hired in mid-1985 to handle the investigations and other litigation at the new Sunrise, later swore that Treadwell had told him to cooperate completely with all state and federal investigations.

"I knew him to be an honest, straightforward person of the highest integrity," Woodfield said in a 1994 affidavit. "I am not aware of a single instance in which he was less than candid with anyone [or] dissembled or told anything less than the full truth. I know that this was also his reputation throughout the institution and in his community."

A BREACH OF CONTRACT

Meanwhile, a federal grand jury investigation was gearing up in early 1985, spearheaded by Lothar Genge, a veteran prosecutor known for doggedly pursuing tough targets and for playing hardball in amassing an impressive record of convictions in some big cases [see sidebar "White Knight? Or Bull in a China Shop?"].

Genge’s grand jury investigation focused initially on Jacoby and other former Sunrise officers, not the Blank, Rome lawyers. The prosecutor first interviewed Treadwell on May 16, 1985, along with another Sunrise official, Joseph Taber, promising them that they were not targets and would have use immunity as long as they were truthful and forthcoming with investigators.

The immunity agreement, later put in writing, specified that the government could revoke its promise, and use Treadwell’s statements against him, if he violated his part of the deal by lying or "knowingly and willfully" failing to disclose material information "sought by" the government.

The dispute over whether Treadwell violated this agreement-or (as Judge Hoeveler was ultimately to rule) the government did-is complicated by a problem of the prosecution’s own making:

Genge and his cohorts did not make a detailed record of any of their four interviews with Treadwell in 1985 and 1986. Their rough, handwritten notes, and the only FBI report of any of the interviews that was ever typed up, are woefully incomplete, fragmentary, and unreliable, containing major, now-admitted inaccuracies, and few (if any) verbatim quotations.

Asked why the interviews were not tape-recorded, Genge says simply, "We don’t do that."

Nor can much stock be put in Genge’s (or his cohorts’) recollections of the interviews in his testimony about them, which came some eight years after the fact and were unsupported by the investigators’ notes on key points. Some of Genge’s claims about his dealings with Treadwell and his two lawyers at the time (Rebekah Poston and Theodore Klein) are refuted by his investigators’ rough notes, or by the lawyers’ testimony-which, unlike Genge’s, is corroborated by contemporaneous memoranda.

So it is impossible to determine with any confidence exactly what Treadwell was asked, and what he answered, at any of the interviews. This account reconstructs key aspects of Treadwell’s four interviews with Genge based on the best available evidence.

The initial May 16, 1985, joint interview of Treadwell and Sunrise official Joseph Taber was general and preliminary. But Genge’s subsequent claim that "nothing was discussed" of substance is contradicted by the investigators’ rough notes.

At the outset of the three-hour interview, Treadwell disclosed through his counsel that he had committed one arguable impropriety: accepting a $2,500 gratuity (which Genge calls a "kickback") from a Sunrise borrower for closing a 1983 loan in which he represented both Sunrise and the borrower.

Treadwell explained the roles of Blank, Rome senior partners Foxman and Gitomer in creating Sunrise and installing Jacoby, and as stockholders. The interview also touched on various transactions at Sunrise that might warrant investigation, including some involving Frederick and Moye.

Treadwell returned on July 23, 1985, for a more detailed, eight-hour interview with Genge and two other investigators. As Judge Hoeveler later found, Treadwell provided the investigators with a wealth of valuable information, which they subsequently used. (The new Sunrise management had waived the attorney-client privilege.) He explained the Frederick and Moye overdrafts, Jacoby’s role in them, names of potential witnesses, and much more-including the August 30, 1984, transactions.

Treadwell indicated that these transactions seemed structured to funnel money to cover Frederick’s delinquent interest and overdrafts, and seemed designed to circumvent the supervisory agreement’s restrictions on loans of more than $500,000. He said that he had been concerned that they were not documented properly.

Treadwell also described his advice to Powell to get his own counsel, and his near-fistfight with Moye. He said his recollection was unclear on what he did afterwards, except that he had walked away and refused to close the transactions, that Scheer had closed them, and that Treadwell did not know exactly who had made the final decision but that he certainly did not stop them from being closed.

("When Lothar asked him about the criminal transactions, what we should be looking at, he stayed away from August 30," says bank regulator Batlle, who was at the interview. And Genge has so testified. But Genge’s own contemporaneous notes suggest that Treadwell brought up that days transactions as an instance of possible "acts of dishonesty" known to Jacoby.)

On Seawalk, in response to a very general question as to what he knew, Treadwell said this had been a temporary quarterly fix to get Frederick’s loans current before the September 30, 1984, regulatory report. There were no follow-up questions.

At the end of this July 1985 interview, Genge signed Treadwell’s immunity agreement. Still, he testified eight years later, he had felt that Treadwell’s account "was, what should I say, disappointing. It certainly wasn’t helpful." Genge claimed he had been particularly frustrated not to learn more about how it was decided that Dana Scheer would close the August 30, 1984, loans.

Genge testified that his experience-including two years at a Wall Street firm in the 1960s-had taught him that at "a major firm with a major client, such as we had here, where transactions were of such a critical nature, both to the client and to the financial well-being of the firm … a junior associate like Mr. Scheer would not have taken it upon himself." (Actually, Scheer was a senior associate.)

It was supposedly for misleading investigators and withholding information during this interview-and, in particular, for denying personal culpability in the August 30 and Seawalk transactions-that the prosecution later revoked Treadwell’s immunity.

But Genge has never proved that anything Treadwell said that day was false or deceptive. Indeed, Judge Hoeveler later observed: "The court is struck by how Treadwell’s statements at the July 23, 1985, interview foreshadow and conform to the evidence presented at trial nine years later."

For example, Genge has faulted Treadwell for failing to disclose that he had played an "integral part" in setting "a phony price for Seawalk." Complains Genge: "I anticipated that he would be completely forthcoming. … He should have told us that Seawalk stunk to high heaven. … I will bet you my last dollar that Ken knew exactly what went on in Seawalk." But as is noted above, the evidence suggests that Treadwell had no role in setting the price and did not know that it was inflated.

It’s true, as Genge has complained, that Treadwell did not detail whatever conversations about the August 30 transactions he had had with others at Blank, Rome. But the investigators’ rough notes give no indication that Treadwell was asked specifically about this, or was asked any kind of follow-up questions, except that Genge asked him to search his memory-before the next interview-as to what had happened after his near-fistfight with Moye.

Batlle adds that Treadwell should have mentioned Marvin Comisky’s presence in the West Palm Beach branch on August 30, 1984, because "that would have erected a ninety-foot lightning rod over these transactions." Treadwell’s lawyer, Nathan, has responded that there was no reason for Treadwell even to think about Marvin Comisky-because he had no role in the transactions-let alone offer him up to criminal investigators as a possible suspect.

But let’s suppose that Treadwell was thinking, as he fielded Genge’s questions that day, about his discussions with more senior partners on August 30, 1984. Suppose that he was wondering whether Genge would ask about this. Suppose that (as the evidence suggests) the question never came up. Suppose that he then decided not to volunteer anything that might-unjustifiably, in his view-put senior Blank, Rome partners on Genge’s list of prospective targets.

Supposing all that, what would most lawyers have done, had they been in his place?

Such speculations aside, the legal issue turns on whether Treadwell lied or "knowingly and willfully" failed to disclose information "sought by" the government. As Judge Hoeveler later found: "The trial record supports Treadwell’s contention that his cooperation was complete and truthful and that he did not withhold any information from the government. … There was no reason why Treadwell should have gone farther than he did."

THE PRICE OF IMMUNITY

More than ten months went by before Genge interviewed Treadwell about these events again. Meantime, Genge says, he came to suspect that Treadwell had not told the whole truth, especially after talking to some other witnesses. He has cited especially his February 1986 interview with Ronald Berkovitz, the career con man who had accompanied Charles Powell on August 30, 1984.

Berkovitz had by then been convicted of bank fraud, forgery, and interstate transportation of stolen securities, and was seeking early release from federal prison (and other benefits) by offering Genge his own version of the events of August 30, 1984.

This initial Berkovitz account did not contradict Treadwell on any specifics, or place him in any of the closings. But unlike Treadwell, and unlike Powell-who has always said he thought the transactions were legitimate deals, on which he had hoped to make a profit-Berkovitz did characterize the transactions as obvious shams, and said that everyone knew it, including Treadwell and Scheer. " ‘These lawyers were involved,’ " Genge later recalled being told by Berkovitz. " ‘I am prepared to testify.’ " Berkovitz later got what he wanted from Genge (who later still falsely denied this in court): letters seeking a reduction of his sentence.

It was not until May 28, 1986, that Genge reinterviewed Treadwell to confront him with his doubts, starting with the Miranda warning. The investigators pressed Treadwell for the first time for details of the Seawalk purchase, and of any discussions he may have had with more senior Blank, Rome partners about the August 30, 1984, transactions. According to Genge’s subsequent testimony, his assumption was that Treadwell had not been "the majordomo" but "sort of [a] midlevel operative at Blank, Rome who went along with these transactions."

Treadwell told them again that his memory was not clear on what had happened after his near-fist-fight with Moye, except that Scheer had ended up closing the loans, and Treadwell had not participated. He added some speculations that he and Scheer "would have told" senior Blank, Rome partners Fitzgerald, Glassman, and/or Marvin Comisky about the situation, and that one of them may have decided to proceed with the closings.

Genge, pressing for more, suggested: "You would get [a] promotion-[be a] team player" by going along with the deals, according to one agent’s notes.

But Treadwell did not give Genge what he wanted. He insisted that he had been told the deals were legitimate, while acknowledging that the deficient documentation might suggest otherwise. The interview ended on a hostile note, with the prosecutors suggesting that Treadwell had known more than he admitted about the August 30 deals and the Seawalk purchase. Gary Woodfield, the Sunrise lawyer and former prosecutor who had accompanied Treadwell that day, felt that they had been "ambushed," he later testified.

"I knew that my life had changed," Treadwell recalls. "I just didn’t have any idea how significantly it would change."

In the ensuing days, according to contemporaneous memos by Treadwell’s two then-counsel, Genge told them that he thought Treadwell was covering up for some people and that to avoid indictment he would have to implicate "higher-ups" at Blank, Rome, and admit culpability so he would be a credible witness.

"It was apparent to me," recalls Treadwell, "that what I had to do, if I wanted to be restored, was to say, yes, this was a major crime, that the lawyers all knew about it, and they participated in it, and that Marvin Comisky knew all about it… The shift could have been to any one of the three of Marvin Comisky, Kal Gitomer, or Mike Foxman."

Treadwell adds: "I don’t think I could have lived with myself if I had gone in and provided them with testimony about those individuals that I knew wasn’t truthful. But as a result of that, I-you know, you go back and you rack your brain, and you focus for hours trying to … resurrect … the events of one hour … almost two years prior to that date, after … a very tiring flight, coming in very late at night."

Bank regulator Batlle has a different interpretation: "Treadwell really was a very small part of this whole thing. Ninety percent of the case was the law firm of Blank, Rome …. When Ken was dealing with us, he was between a rock and a hard spot. ‘Do I play with these guys and roll on the managing partner of Blank, Rome? Or do I stay with the money and power?’ I mean, what would you do?"

Batlle adds: "In the long run, he made the decision that was best for Ken, because he can still practice law." Similarly, another official says that Treadwell-with Blank, Rome covering most of his legal fees-decided to "snowball [the prosecutors] and protect the people who can help [him] in the long run."

Genge gave Treadwell one last chance to take himself off the hook, by reinterviewing him on June 20, 1986.

This time Treadwell recalled something new about August 30, 1984: Before the transactions were closed, he had been worried about possible legal exposure for the lawyers-worried enough to confer over lunch with Ian Comisky (Marvin’s son), a former federal prosecutor. Ian was eating a tuna fish sandwich. He looked in some kind of law book, Treadwell recalled, and said he could find no basis for criminal liability.

This prompted Genge immediately to designate Ian Comisky as a target. Making a large extrapolation from what Treadwell actually said, the prosecutor claimed he had fingered Ian Comisky as having personally approved the transactions.

"I don’t think [Treadwell] meant to implicate Ian as the person who gave the order," notes Batlle. "I think he underestimated what would happen by him bringing Ian into the picture."

But Ian Comisky then produced documentary evidence that he had not been in Florida at all that day. When this was presented to Treadwell, he retracted his account, said he must have been mistaken, and apologized.

This episode may be the most troubling one in the whole drama for those who (like me) see Treadwell as an innocent victim of prosecutorial overreaching.

Had he simply made up a phony story to shift the prosecutors’ focus from himself to an innocent man?

This last interview with Genge came when Treadwell’s spirits were at their lowest point. He had lost his job at Sunrise because of his new status as a target. He was unemployable as a lawyer. And, he recalls, he was despondent "about the loss of work, the inability to support his family, three very young children, the stigma of a criminal investigation, and what that meant."

It seems likely that he had cracked under pressure, crossed wires in his mind, and mistakenly transferred to August 30, 1984, some other conversation over a tuna fish sandwich, on some other day.

Genge had a more sinister view, perhaps understandably.

After "Treadwell’s false accusations against Ian Comisky," Genge wrote in one brief, "Treadwell had given so many different versions of the facts that he could no longer be viewed as a credible witness against anyone."

But Genge did not put anything in writing to that effect at the time. And the prosecutors were still ready to deal months later, if Treadwell would provide incriminating testimony against his former senior partner.

At a November 1986 meeting, Genge and his boss, Robert Lehner, told Theodore Klein and Rebekah Poston, then Treadwell’s lawyers, that they planned to seek Justice Department permission to include Treadwell (and Dana Scheer) in a broad indictment along with former Sunrise insiders. But one of the prosecutors added that some kind of deal might still be possible:

"You bring us Marvin Comisky,’ " Klein testified to having been told, " ‘and then we will be able to talk.’ "

TREADWELL GETS A NEW LAWYER

Unemployed and with time on his hands, Treadwell spent several months starting in the fall of 1986 working on getting a loan for a new building for St. Peter’s United Methodist Church, in which the Treadwells are active members. Meanwhile, the Treadwells were living off savings and severance pay, and a little consulting work, and worrying about the mounting costs of his defense.

By late 1986 Treadwell’s legal situation was desperate, and it looked like his only hope was to go over Genge’s head to the Justice Department in Washington. It was then that Treadwell found Irvin Nathan of Arnold & Porter, an uncommonly skilled white-collar specialist who had the right background for that sort of thing, having been deputy assistant attorney general of the criminal division during the Carter administration.

Thus began an unusually protracted, and unusually warm, attorney-client relationship. "I can’t tell you enough about Iry and what he’s done for me," says Treadwell. "I’ve got some sense of what it’s like with a major law firm. I know what he’s done over the years in terms of just the quality of the representation, the staff that he’s thrown on this job, in terms of seeing him night and day during the trial … and the battles that I know he’s had to fight from time to time with his partners about, you know, ‘How are you continuing to stay in this case, gotta get paid more,’ and his sense about the case, and how unfairly I was treated over all these years."

Nathan was not an unmixed blessing. After recalling his three "worst moments"-the Mirandawarning, the indictment, and the jury’s verdict-Treadwell chuckles, and adds (with Nathan sitting in):

"I just thought of my fourth worst moment. After the indictment, the night Iry called and said, ‘This is what the fees are going to be to represent you … and we need to get this resolved before I appear at your arraignment, which is next Tuesday.’ "

(While Blank, Rome has paid a substantial portion of Treadwell’s fees, Treadwell has paid a substantial portion himself, according to Nathan, who declines to discuss amounts.)

Nathan met with Genge and other investigators on January 6, 1987, in a last-ditch effort to dissuade them from seeking an indictment. It was to become-by mid-1993, at least-an extraordinarily hostile relationship.

Nathan asked the prosecutors to give Treadwell a polygraph test. They refused. He asked them to specify the precise basis for their claim that Treadwell had breached the immunity agreement. They refused.

But because Genge and his colleagues were then assigned to the Justice Department’s organized crime strike force in Miami, the proposed indictment had to be approved in Washington. That gave Nathan, as well as the lawyers for the other targets, a chance to make a full-dress appeal inside the Justice Department.

Contending that Treadwell was innocent, and was protected by his immunity agreement, Nathan argued his case both in writing and orally, with Genge in attendance, to the career prosecutors in charge of the Organized Crime and Racketeering Section.

It later turned out that Nathan had had an ally he had not known about: The FBI, following the lead of Anthony Yanketis, the agent assigned to the investigation, had opposed Genge’s effort to revoke Tread-well’s immunity.

The Justice Department finally rejected the proposed indictment of Treadwell (as well as of Scheer) in late January 1987, and the case went forward in February against former Sunrise executives Robert Jacoby, Thomas Skubal, and William Frame, along with borrower-developers Frederick and Moye.

A FALSE SENSE OF SECURITY

When he got the good news from Nathan, Tread well recalls, he felt "great euphoria . . . that this was behind me." He came to understand later that "there might be further inquiries" depending on the outcome of the Jacoby trial. But for now, he could "get my life back in order," and resume his career and his civic work.

Treadwell put some feelers out to law firms, ending up at the West Palm Beach firm of Lewis, Vegosen, Rosenbach & Silber. He started there in the spring of 1987, and has been there ever since-through a campaign of news leaks by prosecution sources, near-indictment, indictment, trial, conviction, and vindication.

"It’s been a real tribute to the partners," he says. "I was fortunate that I found a firm that was willing to take those risks." Because of his legal problems, he notes, at times the firm has had to wall him off from certain cases or clients. And at times clients have dropped him.

Meanwhile, the Sunrise case marched on. Genge and his colleagues cut a sweetheart deal in November 1988 with the sleaziest operators in the whole drama, Frederick and Moye, to secure their testimony against Jacoby and other Sunrise insiders. Frederick and Moye spent less than six months in jail, and Frederick paid a $25,000 fine.

Jacoby went on trial, along with former Sunrise executives Thomas Skubal and William Frame, in May 1989. (Frame had a heart attack in mid-trial, was severed from the case, and was later tried with Treadwell and Scheer.) Genge was the lead prosecu tor. He depicted Jacoby as the "kingpin" of the fraud, and a "brazen perjurer," and deprecated Jacoby’s ef forts to shift blame to the lawyers, whose advice Genge commended in some respects. Jacoby and Skubal were convicted in late June 1989 on 15 and five felony counts, respectively.

With the five-year statute of limitations about to expire on the events of August 1984, Genge once again sought Justice Department permission to indict Treadwell and Scheer-and, this time, the Blank, Rome firm as an entity.

Once again, Nathan (and other defense counsel) appealed to Genge’s superiors. Once again, the career prosecutors in Washington blocked Genge’s proposed indictment.

When Nathan reported this, Treadwell recalls, "I circled that date on the calendar"-August 28, 1989-"and wrote the word ‘freedom’ next to it. . . . That was when I truly felt this was behind me. It was over. I would never have to deal with this again."

And the Treadwells got on with their lives. Aside from his busy law practice, Treadwell coached his kids’ soccer, basketball, and baseball teams, and dove into church activities and civic work. By 1992 he was chairman of his church’s administrative board, chairman of Palms West Hospital’s board of trustees, director of the Palms West Chamber of Commerce, and more.

This was not just a matter of billing hours and amassing titles. This is a man who inspired an outpouring of supportive letters to Judge Hoeveler after the jury’s verdict against him. For example, Nancy Hykel, a lawyer who was then a senior vice-president of Trammell Crow Company, wrote:

"In May of 1992, my husband Paul Hykel passed away suddenly of a heart attack at the age of 44. At the time, I had two small children ages 2 and three months. In my darkest hour, it was Ken Treadwell who provided an unfailingly constant and immutable stream of light and who, through his profound religious beliefs, guided me through an apocalyptic crisis into coherency and on to steady ground."

GENGE COMES OUT OF THE BATHTUB

But it was not over. Something else had happened in Washington that summer of 1989: On August 9 Congress had passed the Financial Institutions Reform, Recovery and Enforcement Act. Among other things, it extended the statute of limitations for S&L crimes to ten years.

And Genge wasn’t giving up. Nathan likens the prosecutor’s persistence to that of the Glenn Close character in the movie Fatal Attraction, who obsessively stalks the Michael Douglas character and his family-and who, after seeming at long last to have expired in their bathtub, eerily emerges with knife in hand for one last attack.

Genge had some allies among Florida banking regulators, who thought that the Blank, Rome lawyers were getting away with fraud, and lobbied the U.S. attorney in Miami to revive the case. Meanwhile, news leaks kept the issue alive in the press.

Genge made his move after the Jacoby and Skubal convictions were upheld by the U.S. Court of Appeals for the Eleventh Circuit on March 25, 1992. That’s when the two men faced going to prison to serve their sentences-and were most in need of help from the same prosecutor who had put them there.

Genge immunized Jacoby and put him in front of a grand jury on June 5, 1992. The prosecutor claims he never spoke to Jacoby before this testimony. But Jacoby didn’t have to be a genius to figure out what kind of testimony would be most likely to shorten his sentence. And that’s the kind he gave, including an account of some allegedly fraudulent deals engineered by senior Blank, Rome partner Michael Fox-man in 1982, as well as the Frederick-Moye deals.

On the August 30, 1984, transactions, Jacoby said that senior partner Kalman Gitomer "was promoting it." While noting that "Ken Treadwell was less involved" and "wasn’t really around" while the transactions were being planned, Jacoby suggested that maybe Treadwell had consulted with Marvin Comisky after his near-fistfight with Moye.

"It’s kind of a scene," testified Jacoby. "I-or Marvin-said [to Treadwell], ‘Well, I’ll talk to you about it.’ And Marvin and Ken eventually went away and did whatever they did." Jacoby added that he himself and Comisky might have continued their own meeting after the Treadwell-Moye incident.

Jacoby suggested that at some point, Comiskywhom he described as "the kind of guy . . . who does his finger-pointing and yelling in private," not in front of a client or a crowd-"went and talked to Ken’s people. Now I’m told that, you know, they were directed to be closed by Marvin, and/or the rest of the members of the firm."

‘Now I’m told": an interesting choice of words, coming more than seven years after the event being described. Who had told him?

Jacoby added: "I personally believe that [Dana Scheer] was directed by either Marvin or-probably Marvin or Blank, Rome to close the damn things and keep his mouth shut." And who told Jacoby that?

On the Seawalk transaction, Jacoby stressed: "I’m certain the law firm up to the highest level, the law firm knew exactly what we were doing." More generally, Jacoby said that Blank, Rome "controlled the board" of Sunrise.

Later, with Genge’s assent, Judge Hoeveler cut Jacoby’s five-year sentence in half in light of his cooperation.

With the help of Jacoby, and some from his codefendant, Skubal, Genge finally got his indictment of Treadwell and Scheer-and Foxman and Gitomer too–in early 1993, on his third try. This time, the review in Washington was more deferential, because the organized crime strike forces (which were centrally controlled from Washington) had been disbanded in 1990, and Genge was now assigned to the Fort Lauderdale outpost of the U.S. attorney’s office in Miami.

Justice did reject Genge’s proposal to include Marvin Comisky, and the law firm as an entity, in the indictment. But Genge soon named them as unindicted coconspirators.

Aside from the emotional devastation, the indictment had a heavy impact on Treadwell’s law practice, forced him to resign some of his civic leadership positions, and forced Cindy Treadwell out of her home and into the job market.

The Treadwells had paid their legal fees before 1993 with savings, borrowing on life insurance, and loans from family members. But after the indictment, Cindy had to support the family while Ken spent much of his time fighting in court. She got a job in public health nursing-in which she had a master’s degree-and now runs an AIDS clinic.

Nathan moved to dismiss Treadwell’s indictment for violation by the government of his immunity agreement, and Judge Hoeveler held a 17-day evidentiary hearing in the summer of 1993. Nathan put Genge on the stand, grilled him mercilessly, and rubbed his nose in a succession of false and misleading statements Genge had made (unintentionally, Genge claimed) in the course of the prosecution.

Toward the end, Treadwell recalls, while he was standing at the lone urinal in the courthouse men’s room, and Genge was similarly occupied in the stall behind him, he was stunned to hear Genge say: "Tell Iry the offer is still open."

Treadwell and Nathan took that to mean that even at that late date, in Nathan’s words, "if he implicated higher-ups at Blank, Rome, he could walk."

It took Judge Hoeveler a full year to rule on Tread-well’s motion to dismiss. (In the interim, Nathan temporarily left the case for a brief, high-level stint in the Clinton Justice Department.) Finally, in July 1994, the judge held that while it was a close question, it appeared "at this juncture, at least," that it was probably Treadwell, not the prosecution, that had been breached by the immunity agreement. He would let the case go to trial, and revisit the issue later if necessary.

TRIAL BY MISCONDUCT

Before the three-month trial got under way in October 1994, Judge Hoeveler severed former Blank, Rome senior partners Michael Foxman and Kalman Gitomer from the case for reasons including prejudicial pre-indictment delay in Foxman’s case, and ill health in Gitomer’s case. (Although both cases are still open, neither seems likely to go to trial).

That left Treadwell, Scheer, and Frame, the former Sunrise official, to face a trial ten years after the fact, when many witnesses had little or no independent recollection of the events in controversy, and some potentially important defense witnesses had died.

The trial was infected by prosecutorial misconduct from the start. In his October 1984 opening statement to the jury, for example, Genge suggested that Treadwell and Blank, Rome had been desperate to cover up Sunrise’s problems to avoid the demise of "a $5 million client." This was (the judge later found) "in direct contravention of the court’s admonition" two days before not to mention how much Sunrise had paid Blank, Rome in fees.

(Genge claimed his "$5 million client" line was "not intentional." Nathan’s response: "Hogwash. This was deliberate, and its impact could not be erased.")

Genge also told the jury, falsely, twice, that Tread-well had begun as in-house counsel and vice-president at Sunrise before the allegedly criminal transactions on August 30 and in late September of 1994. In fact, he was still outside counsel, and a partner at Blank, Rome, until October 1.

(Genge has argued in court papers that this was only "technically inaccurate," because in his view Treadwell was acting as "de facto" in-house counsel at Sunrise by late August 1984.)

Genge also used guilt-by-association tactics from his opening statement on, repeatedly describing "Blank, Rome attorneys" doing sinister-sounding things-like lobbying big shots in Washington to call off the regulators-in which none of the defendants had any role.

The defendants were also prejudiced by Judge Hoeveler’s decision to let Genge try the case on the theory that some allegedly fraudulent 1982 transactions engineered by former Blank, Rome partner (and Sunrise founder) Michael Foxman-which did not involve the defendants on trial-and the 1984 events involving Frederick and Moye were all part of one big conspiracy, run by Blank, Rome, to misapply Sunrise funds.

The judge later found that Genge had not delivered on his assurance that the evidence would "link up" the two sets of transactions as parts of a single conspiracy, and had used the earlier transactions "to prejudice these defendants by tainting them with crimes in which they played no role."

The prosecution case featured slimeball, immunized witnesses with incentives to please prosecutor Genge, like Lonnie Merrill, a former Sunrise official who had pled guilty shortly before the trial to exposing himself to an undercover officer in a public rest room at a zoo. And like Ronald Berkovitz, the career con man who had boasted to the grand jury that "my reputation over the years has been closely associated with organized crime."

And like Jacoby, the "brazen perjurer," who had gotten out of prison early for telling the grand jury what Genge wanted to hear, who was still on probation and thus dependent on Genge’s good will-and who, he later reported, was told by Genge during his eight days of trial testimony: "I know you are going to come through for us," because otherwise, an FBI agent "is going to put the cuffs on you and you are going to be out of there in 45 seconds" [see sidebar "A Pattern of Misconduct").

Jacoby’s 1994 trial testimony against Treadwellafter he had been prepared for some 20 hours by Genge-was far more damaging than his 1992 grand jury testimony. In particular, Jacoby testified for the first time that Treadwell had personally given him the data that Jacoby had used in setting the $13.5 million purchase price for Seawalk [see sidebar "A Yellow Piece of Paper"].

A MAN OF CHARACTER

Treadwell’s essential defense was that he had raised problems with the August 30, 1984, transactions-not closed them; that he had not set the Sea-walk price or known that it was inflated; and that in seeking to work out the Frederick-Moye problem loans, he thought he was "applying the Heimlich maneuver to the bank, not mugging it," as Nathan put it.

None of the defendants took the stand. But Nathan put on some exceptionally glowing testimony about Treadwell, by five character witnesses.

The testimony of Reverend Douglas Kirk, former pastor of the Treadwells’ church, was typical:

"Ken was and is a very, very respected member of that church. . . . Has been sought out for counsel, personal counsel for individuals. Has been sought out for any number of leadership positions…. He is of a handful of people in that congregation who have the very highest regard. . . . The reputation for being a straight shooter. For telling it like it is…. He, I believe, has the finest ethical, moral standards, period, and I know a lot of folks. I consider myself a good judge of behavior. I know a lot of lawyers, and I would not say that of all lawyers, by any means."

Even the prosecution witnesses concurred, on cross-examination by Nathan, that Treadwell was a person of integrity. Take Robert Jacoby:

Q. Did you believe that he was a person of high ethical standards?

A. Yes.

Q. Has he ever misrepresented any facts to you? A. Not that I am aware of, no.

Q. And do you know him to misrepresent facts to anybody else?

A. I am not aware of it.

By the end of the trial, Judge Hoeveler had expressed "deep reservations" about the case against Treadwell. He dismissed five counts charging him with complicity in the allegedly false certifications, signed by the borrowers in the August 30, 1984, transactions, that they were not "nominees" for someone else.

But the judge said he would let the rest of the case against Treadwell go to the jury-including charges of conspiracy and misapplying Sunrise funds in the August 30 and Seawalk transactions-so that the prosecution would have a chance to appeal any adverse post-trial rulings.

Judge Hoeveler gave defense lawyers what they wanted in jury instructions, however, telling the jury that the prosecution must prove that the defendants acted with actual knowledge that they were involved in fraud, and refusing Genge’s request for a "conscious avoidance" instruction.

The case went to the jury in late December 1994. The eight days of deliberations, over three weeks, were raucous-with laughter and shouting audible to people outside. The verdicts, on January 18, 1995, bore the earmarks of compromise.

Treadwell was acquitted on 11 substantive counts, including all those relating to the August 30, 1994, transactions, and found guilty on only one: helping to misapply Sunrise funds in the $13.5 million Sea-walk purchase. Apparently on the basis of the Sea-walk evidence, he was also found guilty of conspiring to misapply Sunrise funds.

Scheer was convicted on five counts, mostly for the August 30, 1984, transactions that he had closed. He was acquitted on Seawalk. Frame was convicted on nine counts.

Mixed with a "sense of hopelessness" after the verdicts, Treadwell recalls now, was faith "that somehow the Lord would take care of me."

In the ensuing months, Cindy Tread-well told the children that they might have to sell their house, but would manage somehow. By early June, she recalls, "I had come to peace with the fact that Ken was going to go to jail."

VINDICATION

But meanwhile, Nathan and the lawyers for Scheer and Frame had filed post-trial motions attacking the verdicts and alleging a wide range of prosecutorial misconduct.

The judge had taken these motions under advisement. But at the very end of a June 5 hearing-at which the defense had presented compelling proof that Genge had told Jacoby that he would be sent back to prison if he did not "come through" in his testimony-Hoeveler dropped a bombshell: He had decided to grant Treadwelfs motions for judgment of acquittal and dismissal of the indictment.

"I outjumped Irv," recalls Treadwell, who is almost a foot taller than his lawyer. "I think he got up to about my belt buckle.’,

Judge Hoeveler laid out the basis for his ruling on September 12, in a 55-page opinion.

In entering judgment of acquittal, he held that "no reasonable jury could or should have" convicted Treadwell on the Sea-walk count, because it was "clear [that] Treadwell did not participate in fixing the price," and there was no persuasive evidence that he "was aware of the fair market value of Seawalk" or had done anything wrong. He overturned the conspiracy conviction because it was "clear that [it] was based solely upon" the Seawalk transaction.

And in dismissing the indictment because of the prosecution’s violation of Treadwell’s immunity agreement, the judge held that his cooperation with prosecutors had been "complete and truthful," and that there had been prosecutorial overreaching [see sidebar "A Pattern of Misconduct"].

Judge Hoeveler upheld the Frame and Scheer convictions, however, saying that "there was ample evidence to convict them" on some counts, and that the prosecutorial misconduct at trial was not sufficiently pervasive or prejudicial to warrant voiding their convictions. Scheer is appealing; Frame has since died.

So," Genge reflects unhappily, "we end up with the low man on 1984, but did so because he had a family to feed, and he was afraid of getting fired.

This after Genge had shot for the moon, seeking to prosecute Blank, Rome as an entity and its top partner, Marvin Comisky; after he had gotten indictments of two senior partners (Michael Foxman and Kalman Gitomer) who will probably never go to trial; after he had won jury verdicts against former junior partner Treadwell (on two of 13 counts).

The prosecution filed a motion to reconsider Judge Hoeveler’s decision. He denied it.

At this writing, Genge is seeking permission from the Justice Department to appeal Judge Hoeveler’s rulings for Treadwell. If he gets permission, the case-and the Treadwell family’s or-deal-will go on for years more, perhaps many years.

"I think it’s pathetic that they can’t let it die, that they can’t take their loss and go," Cindy Treadwell says. "But I think if someone were to tell me tomorrow that it was over, I don’t think I’d feel safe. Somehow it could come back. It always has."

The post Victim Of A Ten-Year Vendetta appeared first on Stuart Taylor, Jr..

Guilty and Framed

Stuart Taylor, Jr.

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?

Actually, it’s more complicated than that. Complicated enough that I’m joining the "Save Mumia" movement, here and now.

After a derailed review of the trial transcripts, witness statements to police, and other evidence brought out before and during a much-publicized post-conviction hearing this summer in state court in Philadelphia, it appears to me that Jamal’s trial was grotesquely unfair and his sentencing hearing clearly unconstitutional.

Jamal was prejudiced by police misconduct and probably rampant police perjury; ineffective and underfunded defense lawyering; inappropriate prosecution arguments to the jury; egregiously bad judging by the notoriously biased, pro-prosecution Albert Sabo of the Philadelphia Court of Common Pleas; and questionable voir dire stratagems that forced Jamal to face an 83 percent white jury (ten whites, two blacks) in a 40 percent black city.

Due to this toxic combination of factors, the jury that convicted and condemned Jamal in 1982 lacked some important evidence, including a police report strongly supporting Jamal’s claim that his "confession" was a complete fabrication, cemented by perjured prosecution testimony.

There is also evidence – much of which the jury did not have – suggesting that all three of the prosecutions eyewitnesses changed their stories to conform to the prosecution’s theory of the crime between their initial police "interviews" and their testimony at trial, and that the police sought to stifle exculpatory evidence.

Moreover, even if Jamal did kill Faulkner, the evidence shows that there were mitigating circumstances: When Jamal came on the scene, what he .saw was a big (6-foot) white police officer heating Jamal’s much smaller brother bloody with a 17-inch flashlight; and when Jamal rushed to his brother’s aid, the officer probably shot Jamal in the chest before Jamal shot the officer – perhaps before Jamal drew his own gun.

In the end, even the overblown assertion in that New York Times advertisement – that Jamal "has been sentenced to death because of his political beliefs" – has a kernel of truth to it.

A MOST UNUSUAL DEATH ROW INMATE

Mumia Abu-Jamal is an extraordinary man, with a powerful intellect, a rare talent for radio journalism, a burning empathy for poor people, a lot or admiring friends in journalism and politics, and no prior record of crime or violence, despite personal experience or police brutality and years as a teenage Black Panther under the microscope of FBI and police surveillance.

The day after the 27-year-old Jamal’s arrest, the Philadelphia Inquirer reported that Jamal’s "searing and skillful interviews" had made him "a well-known figure in local broadcast journalism." Jamal had been on National Public Radio, the National Black Network, and local Philadelphia stations including WUHY-FM (now WHYY). He had been elected chair of the Philadelphia Chapter of the Association of Black Journalists and had won mention in Philadelphia magazine as one of "81 people to watch in 1981."

You won’t find many people on death row with credentials like that.

But this was no ordinary journalist, either. Jamal’s radical activism went back to his mid-teens, when, he has said, he was beaten, threatened with a gun, kicked in the face, and called "nigger" by police in connection with various peaceful protest activities.

While he was protesting at a George Wallace for president rally in 1968, Jamal wrote in Live from Death Row, "we were attacked by several white men.Ö I was grabbed by two of them, one kicking my skull while the other kicked me in the balls. Then I looked up and saw the two-toned, gold-trimmed pant leg of a Philly cop.Ö I yelled, "Help, police!" The cop saw me on the ground being beaten to a pulp, marched over briskly – and kicked me in the face. I have been thankful to that faceless cop ever since, for he kicked me straight into the Black Panther Party." Jamal became a founding member of the Black Panther Party’s Philadelphia chapter in 1969 at the age of 15.

After joining mainstream news organizations in the 1970s, Jamal, who changed his name from Wesley Cook as a teenager, took an interest in stories about police brutality, and with good reason. The Philadelphia police department was so notorious that the Justice Department, in an unprecedented 1979 civil suit, charged then-mayor (and former police commissioner) Frank Rizzo and the top police brass with encouraging rampant police brutality, racism, and lying. (The complaint was dismissed on jurisdictional grounds.)

By the late 1970s Jamal was also an ardent sympathizer of MOVE – a black militant, antiestablishment, antipolice group – and was wearing his hair in long dreadlocks like a MOVE member. By mid-1981 Jamal’s growing obsession with MOVE had compromised his standing as a journalist and cost him his job at WUHY. He was freelancing while moonlighting as a cabdriver. After being robbed, he had started carrying a gun.

Nonetheless, Jamal’s arrest for Faulkner’s murder stunned friends and fellow journalists, several of whom have said that despite the revolutionary rhetoric, violence was alien to his nature.

WHO SHOT FAULKNER: WHAT THE JURY HEARD

Police officer Daniel Faulkner’s radio dispatches, accounts of witnesses, and physical evidence establish beyond serious dispute how the chain of events leading to Faulkner’s death began that December night in 1981.

At 3:51 A.M. Faulkner stopped Jamal’s brother, William Cook, who was driving a Volkswagen Beetle, apparently for a traffic violation, on the south side of Locust Street, about 80 feet east of 13th Street. It was a seedy area replete with late-night bars, nightclubs, cafes, and streetwalkers. Faulkner radioed his location, and then added: "On second thought, send me a wagon" – apparently planning to arrest Cook (or someone in Cook’s car) for an unknown reason.

Both Faulkner and Cook got out of their cars. Faulkner spread-eagled Cook across one of the cars. Then Cook suddenly turned and slugged the officer, or so say two prosecution witnesses. Faulkner responded by clubbing Cook several times with his 17-inch flashlight. (Cook’s face and neck were bloody when police arrived.)

At this point, Jamal came out of a parking lot on the northeast corner of Locust and 13th, accelerating from a walk to a run as he charged across Locust Street, right at Faulkner. That’s when the shooting started, at point-blank range. (It has never been clear why Jamal, whose cab was parked nearby, happened to be around.)

When police arrived at the scene less than a minute later, the wounded Jamal – sitting on the curb 4 feet from Faulkner, with his empty shoulder holster on and his empty gun nearby – was the obvious suspect.

Cook was standing a few feet away against a wall, with what two witnesses called "a look of shock" on his face. He allegedly told police, "I ain’t got nothing to do with it." (Cook was prosecuted only for slugging Faulkner; Jamal’s lawyers and prosecutors agree that he did not shoot Faulkner.)

The main disputes are over who fired the two shots that hit Faulkner, and over when Faulkner shot Jamal, during the interval of a few seconds after Jamal began running toward the scene.

ACCORDING TO THE Prosecution’s theory, Jamal ran up behind Faulkner "from ambush" to within about 1 foot, and shot him in the back. The wounded Faulkner returned fire, hitting Jamal in the chest, while falling onto his back. Jamal emptied his gun at his helpless victim’s face at close range, finishing him off with a shot between the eyes.

It’s a nice, clean theory, pointing to a clear legal conclusion: first-degree murder, which is capital murder in Pennsylvania when the victim is a police officer. If all one had to go on was the physical evidence (as it was presented to the jury) and the trial testimony of the three prosecution eyewitnesses, Jamal’s guilt would seem established beyond a shadow of a doubt.

Cynthia White, a prostitute, swore that she had seen Jamal, with gun in hand, firing two shots at Faulkner’s back; then Faulkner "turned around and staggered and seemed like he was grabbing for something, then he fell" ; and then Jamal was "standing over" the fallen officer firing "three or four more" shots into his face. Robert Chobert, a cabdriver, swore that he had heard a shot, looked up, and had seen Jamal firing down at the supine Faulkner. Michael Mark Scanlan, who had been out bar-hopping, swore that he had heard a shot while watching a dreadlocked black man (evidently Jamal) rushing at Faulkner with arm outstretched, as though pointing a gun; then the man had stood over Faulkner firing more shots.

"There’s no question in my mind," says Jamal’s trial prosecutor, Joseph McGill, "that Mumia Abu-Jamal viciously killed Officer Faulkner in the manner presented before the jury, and the jury agreed."

But the prosecution’s theory begins to unravel when one studies the initial statements that these three witnesses gave to police on the morning of the shootings, and traces the dramatic changes – all to the benefit of the prosecution – in their accounts over the next six months, culminating in their testimony at trial. Still more doubt creeps in when one weighs the strong incentives that White and Chobert had to give police what they wanted.

The prosecution’s theory is that Jamal shot Faulkner in the back before being shot by Faulkner. But review of all available evidence (much of which was not before the jury) suggests to me that Faulkner probably saw Jamal coming – perhaps with gun in hand, perhaps not – and may have fired the first shot. And other evidence suggests that Cook may well have had a passenger in his car, who jumped out and got away, perhaps after firing one or more shots at Faulkner.

The prosecution’s theory – and, probably, the reality – is that it was Jamal who fired the fatal shot into the fallen Faulkner’s face. But the testimony undergirding this theory was far shakier, less credible, and less consistent with the eyewitnesses’ initial reports to police than the jury could have known.

Nor is the physical evidence conclusive, although it may have looked that way to the jury. There was no definitive match, for example, between Jamal’s gun and the bullet that killed Faulkner. And police could have gone a long way toward establishing whether or not Jamal was the killer by testing his hands, to determine whether he had recently fired a gun, and smelling his gun barrel, to determine whether it had recently been fired. They did neither.

A CONCOCTED CONFESSION?

If the jurors had any doubts about Jamal’s guilt after hearing from the prosecution’s eyewitnesses, those doubts probably evaporated when they heard Jamal’s "confession."

As he was lying on the floor of the hospital emergency room, near the police officer he was suspected of murdering, Jamal defiantly shouted: "ëI shot the motherfucker, and I hope the motherfucker dies.’ He shouted it again a minute later. At least that was the testimony of Priscilla Durham, a hospital security guard, at Jamal’s 1982 trial. Officer Carry Bell, Faulkner’s former partner and best friend, swore that he heard Jamal shouting the same words.

Prosecutor McGill not only made powerful use of this alleged confession in his closing argument for a first-degree murder conviction; the next morning, in urging a death sentence, he stressed "the arrogance of an individual who defiantly will do it and then defiantly brag after it.’

But this was a most peculiar "confession," even putting aside the improbability that a man described by another prosecutor at this summer’s hearing as "one of the smartest people I have ever seen" would so spontaneously and flamboyantly incriminate himself.

For although Jamal allegedly shouted it out while 15 or so police officers were grappling with him or nearby, and although most or all of these officers were interviewed over the next few days by homicide detectives seeking to build the strongest possible case against Jamal, not a word about this "confession" found its way into a single police report for more than two months.

Jamal’s lawyers contend this "confession" was fabricated. And due to the ineffectiveness of Jamal’s defense lawyer and the bias of Judge Sabo, the jury never heard the most exculpatory evidence: Officer Gary Wakshul, who was in the paddy wagon that took Jamal from the scene to Jefferson Hospital, reported later that morning that "we stayed with the male at Jefferson until we were relieved. During this time, the Negro male made no comments."

Did Wakshul just not hear Jamal’s confession? Or did he step away for a minute and miss it? Or did he leave the hospital before Jamal uttered it? Nope. It turns out he heard the whole confession, loud and clear. At least, that’s what Wakshul said in a new statement 64 days after the fact, on February 11, 1982, when questioned in a probe of Jamal’s claim that police had beaten him.

Wakshul suddenly recalled there was this one little comment: "As he was placed on the floor [outside the hospital emergency room], and as I was standing back up, I did hear him say, I shot him. I hope the motherfucker dies.’" Asked by his interviewer to explain his initial report, Wakshul said that "the statement disgusted me, and I didn’t realize it had any importance until today."

Didn’t realize it had any importance? Wakshul’s initial report had included far less important details, such as the exact times of Faulkner’s radio dispatches. The idea that he had heard Jamal confess but hadn’t bothered to report it is patently incredible.

LIKE WAKSHUL, OFFICER GARRY Bell made no mention of Jamal’s "confession" in his reports in the days after the shooting. It was not until 78 days later that Bell says he "remembered" the confession. Bell explains he was "devastated seeing DannyÖ with his face almost blown off," but not one of the other 15 to 20 other police officers with Jamal at the hospital ever reported hearing the confession.

Priscilla Durham first mentioned Jamal’s "confession" to police investigators in a February 9, 1982, interview, 62 days after the shooting. It was not until yet another four months had gone by that Durham first claimed, in her June 24 trial testimony, that she had reported the alleged Jamal confession "the very next day" after the shooting to a hospital investigator, in a statement that he wrote down by hand. Prosecutor McGill, seemingly surprised, interjected, "I’ve never seen one."

Nor has one ever been produced, from that day to this. McGill sent word for the hospital to dig up this handwritten "statement," and while Durham was still on the stand there arrived in the courtroom an unsigned, unauthenticated, typewritten piece of paper, dated December 10, 1981.

Durham said that she had never seen this typed "statement" before, but that it was close to what she had reported to hospital investigators. "They took the handwritten statement and typed this," Judge Sabo helpfully conjectured. He then let McGill bolster Durham’s credibility by reading key portions of this unauthenticated document to the jury.

Jamal s lawyers stress that Durham was a biased witness because she knew Faulkner and Bell, worked closely with police on a daily basis, and harbored hopes of getting a job as a police officer. Durham and Bell (like Wakshul) also undermined their credibility by denying that Jamal had been brutalized at the hospital, despite evidence (some of which the jury did not hear) suggesting that he was beaten in their presence.

Nor would this have been the first time that Philadelphia police cooked up a phony confession. "That’s the kind of bullshit we see all the time," asserts John Packel, chief of the appeals division of the Defender’s Association of Philadelphia. "Cops making up whatever they think will help, making up confessions, to get someone they think is guilty." In fact, police may have manufactured two Jamal confessions. Inspector Alfonzo Giordano reported later on the morning of the shooting that the handcuffed Jamal had confessed to him when they were alone in the back of the paddy wagon.

Giordano says he asked Jamal, " ëWhere is the gun that goes into the holster?’ and he stated to me, ëI dropped the gun on the street after I shot him.’" The prosecution elected not to use this "confession," partly because of the risk of reversal on Miranda grounds.

But I think Giordano made it up. I think Jamal was telling the truth in an interview 11 weeks later, when he told Philadelphia Daily News columnist Chuck Stone: "I confessed? That’s absurd. I do remember he [Giordano] called me a black motherfucker and hit me with a walkie-talkie." Giordano – who pled guilty in 1986 to tax charges arising from his taking $57,000 in payoffs – stands by his story.

EYEWITNESSES: A CABBIE WITH PROBLEMS

"Throughout this trial, whenever there was any testimony that was changed, it was always to the benefit of the commonwealth."

So said Anthony Jackson, the defense lawyer at Jamal’s 1982 trial, while on the stand at this summer’s hearing. The proof of his point lies in the remarkable evolution over time in the stories told by the three prosecution eyewitnesses who fingered Jamal as a cop-killer.

Consider cabdriver Robert Chobert.

It is undisputed that he was closer to the scene than the two other prosecution eyewitnesses, parked in his cab a car’s length behind Daniel Faulkner’s squad car, and some 50 feet from the shooting [see diagram, page 77]. He was writing up a fare when he heard the first shot and looked up. He had to look over or past Faulkner’s car, with its flashing red dome light, to see the action, and saw the shooter only from the side.

Chobert testified at trial that when he looked up, he saw Faulkner fall; then saw Jamal "standing over him and firing some more shots into him."

"I know who shot the cop, and I ain’t going to forget it," Chobert snapped at Jackson during cross-examination.

But Chobert’s first recorded statement to police – about which the jury was not told – was that the shooter "apparently ran away," according to a report that morning by Inspector Giordano.

Giordano encountered Chobert upon reaching the scene about five minutes after the shooting: "[A] white male from the crowd stated that he saw the shooting and that a black MOVE member had done it and appearently [sic] ran away. When asked what he ment [sic] bby [sic] a MOVE member, the white male stated, ëHis hair, his hair,’ appearantly [sic] referring to dreadlocks. I asked him to step over to the rear of EPW #601 [the paddy wagon], the wagon crew opened the back door, the suspect was laying on his back on floor, the white male immediately stated, ëThat is the man that shot the policeman.’"

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.

Actually, it’s more complicated than that. Complicated enough that I’m joining the "Save Mumia" movement, here and now.

In the end, even the overblown assertion in that New York Times advertisement – that Jamal "has been sentenced to death because of his political beliefs" – has a kernel of truth to it.

A MOST UNUSUAL DEATH ROW INMATE

The day after the 27-year-old Jamal’s arrest, the Philadelphia Inquirer reported that Jamal’s "searing and skillful interviews" had made him "a well-known figure in local broadcast journalism." Jamal had been on National Public Radio, the National Black Network, and local Philadelphia stations including WUHY-FM (now WHYY). He had been elected chair of the Philadelphia Chapter of the Association of Black Journalists and had won mention in Philadelphia magazine as one of "81 people to watch in 1981."

You won’t find many people on death row with credentials like that.

While he was protesting at a George Wallace for president rally in 1968, Jamal wrote in Live from Death Row, "we were attacked by several white men.Ö I was grabbed by two of them, one kicking my skull while the other kicked me in the balls. Then I looked up and saw the two-toned, gold-trimmed pant leg of a Philly cop.Ö I yelled, "Help, police!" The cop saw me on the ground being beaten to a pulp, marched over briskly – and kicked me in the face. I have been thankful to that faceless cop ever since, for he kicked me straight into the Black Panther Party." Jamal became a founding member of the Black Panther Party’s Philadelphia chapter in 1969 at the age of 15.

Nonetheless, Jamal’s arrest for Faulkner’s murder stunned friends and fellow journalists, several of whom have said that despite the revolutionary rhetoric, violence was alien to his nature.

WHO SHOT FAULKNER: WHAT THE JURY HEARD

The main disputes are over who fired the two shots that hit Faulkner, and over when Faulkner shot Jamal, during the interval of a few seconds after Jamal began running toward the scene.

A CONCOCTED CONFESSION?

If the jurors had any doubts about Jamal’s guilt after hearing from the prosecution’s eyewitnesses, those doubts probably evaporated when they heard Jamal’s "confession."

Didn’t realize it had any importance? Wakshul’s initial report had included far less important details, such as the exact times of Faulkner’s radio dispatches. The idea that he had heard Jamal confess but hadn’t bothered to report it is patently incredible.

Nor has one ever been produced, from that day to this. McGill sent word for the hospital to dig up this handwritten "statement," and while Durham was still on the stand there arrived in the courtroom an unsigned, unauthenticated, typewritten piece of paper, dated December 10, 1981.

But I think Giordano made it up. I think Jamal was telling the truth in an interview 11 weeks later, when he told Philadelphia Daily News columnist Chuck Stone: "I confessed? That’s absurd. I do remember he [Giordano] called me a black motherfucker and hit me with a walkie-talkie." Giordano – who pled guilty in 1986 to tax charges arising from his taking $57,000 in payoffs – stands by his story.

EYEWITNESSES: A CABBIE WITH PROBLEMS

"Throughout this trial, whenever there was any testimony that was changed, it was always to the benefit of the commonwealth."

Consider cabdriver Robert Chobert.

Chobert testified at trial that when he looked up, he saw Faulkner fall; then saw Jamal "standing over him and firing some more shots into him."

"I know who shot the cop, and I ain’t going to forget it," Chobert snapped at Jackson during cross-examination.

But Chobert’s first recorded statement to police – about which the jury was not told – was that the shooter "apparently ran away," according to a report that morning by Inspector Giordano.

The white male was Chobert. The dreadlocked suspect in the wagon was Jamal. And the problem with Chobert’s first account was that if indeed the shooter "ran away" from the scene, then it would be hard to pin the crime on the critically wounded Jamal, who was found on the curb 4 feet from Faulkner, and who had not run anywhere, according to three other witnesses. (Giordano now says that "I don’t doubt that this cabdriver saw somebody run away," but that it was not the shooter. The prosecution’s theory, and Chobert’s testimony, was that nobody ran away.)

Had Chobert gotten confused and misidentified Jamal as the shooter when he saw him in the paddy wagon, because of his race and hairstyle? (Cook had dreadlocks too, and a third man with dreadlocks escaped the scene, according to other witnesses.) Or what?

This account would have given the defense a good start at attacking the prosecution’s case against Jamal, on the ground that Chobert’s initial report showed that the shooter had escaped – or, at the very least, that Chobert had no idea who the shooter was. But Chobert’s story changed in each of his two subsequent police interviews, getting better for the prosecution each time.

At the homicide unit, less than an hour after his initial report to Giordano, Chobert signed a statement that "I saw this black male stand over the cop and shoot him a couple more times. Then I saw the black male start running towards 12th Street. He didn’t get far, maybe 30 or 35 steps and then he fell.Ö The cops got him and stuck him in the back of a wagon."

Chobert also told police that the dreadlocked shooter was "kind of heavyset. He was about 6 feet tall and he was wearing a light tan shirt and jeans."

THIS SECOND RECORDED Chobert statement still posed big problems. For one thing, while Jamal is over 6 feet, he was far from heavyset; he was lean, almost gaunt. And when arrested he was wearing not a light tan shirt, but dark clothes.

More important, if the shooter ran 35 steps (about 100 feet) toward 12th Street, the shooter wasn’t Jamal, who sat down or collapsed on the curb 4 feet from Faulkner, and who, according to prosecution eyewitness Cynthia White, "didn’t try to run or anything."

Three days later, in a December 12, 1981, reinterview, Chobert said that the shooter’s shirt was "dark gray" – not "light tan." And when asked (yet again) "how far did this man [the shooter] run," he revised 35 steps to "about a car length away," adding that then the shooter "just layed [sic] there by the curb, about 10 feet from the cop." Thus did 100 feet (35 steps) suddenly shrink to 10 feet, perhaps with a little coaching by police.

By the time of his June 19, 1982, trial testimony, Chobert was swearing that the shooter had not run at all: "I saw him walking back about 10 feet and he just fell by the curb."

Jackson stressed some of these discrepancies in cross-examination, but he didn’t do it very well, and he didn’t get the biggest discrepancy of all ("ran away" ) before the jury. This enabled prosecutor Joseph McGill plausibly to dismiss the discrepancies as trifling details.

And while McGill told the jurors they could "trust" Chobert, he didn’t tell them – and with Judge Sabo’s help prevented the defense from telling – that Chobert needed friends in law enforcement because he was, among other things, on probation for arson-for-hire.

"I threw a bomb into a school.Ö A Molotov [cocktail].Ö I got paid for doing it," Chobert explained in chambers. Judge Sabo ruled the arson conviction inadmissible for purposes of impeachment on the ground that it was not "crimen filsi" – a crime tending to show untruthfulness.

Nor was the jury told about Choberts drunk driving record, which Sabo deemed inadmissible. Nor was the jury – or the defense – told that Chobert had been driving his cab with a suspended license the night of the killing; that it was still suspended at the time of the trial; that police had never given him any trouble about this; that (according to Choberts testimony this summer) Chobert had asked McGill during the trial "if he could help me find out how I could get my license back" ; that McGill had "said he’ll look into it" ; and that this was "important" to Chobert because "that’s how I earned my living."

McGill never mentioned this exchange to the defense. He says now that the conversation probably occurred after Chobert testified.

TALES OF TWO PROSTITUTES

The only prosecution eyewitness who claimed that she had seen a gun in Jamal’s hand at any time, and the only one who reported Faulkner grabbing at his side (for his own gun?) after being shot, and the only one besides Chobert who identified Jamal as the shooter, was the prostitute Cynthia White.

She told the jury she had seen the whole thing unfold while standing on the southeast corner of Locust and 13th Streets [see diagram, page 77]. That would put her about 80 feet from the scene and perhaps 30 feet behind Choberts cab.

But White has more credibility problems than the average prostitute – so many that it’s hard to dismiss Jamal’s lawyers’ contention that her tale was scripted to please the police. Some evidence suggests she wasn’t even there.

WHITE HAD AT LEAST 38 arrests on her record in Philadelphia, with three open cases awaiting trial there when she testified at Jamal’s trial. She was serving 18 months for prostitution in Massachusetts at the time of Jamal’s trial. The jury heard about all that. But Judge Sabo blocked proffered testimony from another prostitute, Veronica Jones, that might have cast even more doubt on White’s credibility.

Jones had heard the shooting, but not seen it, while standing almost a block to the east, at Locust and 12th Streets, according to her December 15, 1981, statement to police. Called to testify (reluctantly) for the defense at Jamal’s trial, Jones started to say something intriguing: Sometime after her December 15, 1981, statement, she had been locked up "for nothing," held for five hours, and pressed by police to say, "I had seen Mumia … do it… intentionally." Prosecutor McGill cut Jones off with objections.

In a bench conference, Jackson said that Jones had told him that police "told her that if she would give a statement that backed up Cynthia White, they would let her work the street just like they were letting [Cynthia] work." At McGill’s request, Sabo barred any such testimony as irrelevant, and struck the part that Jones had already blurted out.

White’s account of the shootings, like Chobert s, evolved considerably after her initial police interview on December 9, 1981, as Jackson stressed in cross-examination. Police arrested her for streenvalking on December 12 and 17, and took the opportunity to send her up to Homicide to be reinterviewed each time. She was reinterviewed again on December 23.

In her first statement, the morning of the shooting, White said that the shooter was "short" with dreadlocks, and "came running out of the parking lot on Locust Street. He had a handgun in his hand. He fired the gun at the police officer four or five times. The police officer fell to the ground, starting screaming."

Problem: Jamal is tall (6 feet 1 inch). Cook is much shorter. Both had dreadlocks.

Bigger problem: Chobert and Scanlan, the third prosecution eyewitness, both told police that same morning that they had heard only one shot before Faulkner fell, and that the rest of the shooting had come as he was flat on his back.

By December 17, 1981, White had a revised version: "He pointed the gun at the police officer and shot him one or two times. Then the officer fell, and he went over and stood above him and shot three more times."

Also in her initial statement, White said that "there was no struggle" between Faulkner and the driver of the Volkswagen (Cook). Problem: Scanlan told police that he saw Cook slugging Faulkner, and then saw Faulkner beating Cook hard with a billy club (apparently it was Faulkner’s flashlight).

Three days later, White amended her story, saying that "the driver of the V. W. struck the officer. The officer grabbed him and turned him around." At trial she said Cook had suddenly struck Faulkner "with a closed fist to the cheek." But she still swore that Faulkner had never struck Cook, and had nothing in his hands.

CREDIBLE BUT CONFUSED

Scanlan, the bar-hopping motorist, was the most credible of the three prosecution eyewitnesses. He saw the critical events a lot less clearly than Chobert and White claimed to have seen them. But his story also got better for the prosecution between his initial accounts to police and his testimony at trial.

Scanlan was headed east on Locust Street and stopped at the light on the west side of 13th, about 120 feet from the scene [see diagram, page 77]- To see the shootings, he had to look past the corner where Cynthia White claimed she was, past Choberts cab, and past Faulkner’s squad car with its flashing red dome light. According to Scanlan’s initial statement to police, Faulkner had "spread the guy across the car with his arms out, and the guy turned back around and swung at the officer. The officer pulled his billy club out and swung hard at the guy hitting him several times on the arm and back.Ö Then I noticed another black guy come running across the street towards the officer and the guy he was hitting. Then the guy running across the street pulled out a pistol and started shooting at the officerÖ the officer fell down. Then he stood over the officer and fired three or four more shots point blank at the officer on the ground."

While Jamal’s lawyers don’t dispute that Jamal was the man Scanlan saw running across the street, they do dispute that Scanlan saw Jamal shoot Faulkner in the back, or at all. And with good reason. For one thing, when Scanlan was asked by police at the scene to identify Jamal, he identified him as the driver of the Volkswagen – not the shooter. For another, Scanlan then drew a diagram that clearly showed Faulkner facing Jamal as Jamal approached the scene. And in a police reinterview two days later, Scanlan muddied the waters even more.

First, Scanlan said he hadn’t seen the man who ran across the street holding or firing a gun. Rather, he assumed that this man was the source of the first gunshot that he heard. Scanlan also noted: "I don’t know if the officer fired his gun or not, I didn’t see him pull his gun or fire it, I didn’t know whether either of the males was shot or not, I was stunned.Ö"

Second, Scanlan told police in this reinterview that he had no idea which black male had fired the shots after Faulkner fell: "One of the two males was standing over the officer, I don’t know which one it was, then I saw two or three flashes, and heard the shots, I saw the gun in one of the males’ hand, but I don’t know which male had the gun."

By the time of his June 25, 1982, trial testimony, however, Scanlan’s account was less messy: He said that a man (concededly Jamal) had run at Faulkner from behind, and that "I saw a hand come up, like this, and I heard a gunshot. There was another gunshot when the man got to the policeman, and the gentleman he had been talking to. And then the officer fell down on the sidewalk and the man walked over and was standing at his feet and shot him twice. I saw two flashes."

"The man walked overÖ and shot him twice" ? Which man? How could Scanlan – who had admitted on December 11, 1981, that he had no idea which man it was – be sure in June 1982 that it was Jamal? In cross-examination, Scanlan indicated that he was not very sure: "There was confusion when all three of them were in front of the car."

WHAT REALLY (PROBABLY) HAPPENED

Jamal’s lawyers theorize that Scanlan saw Faulkner facing Jamal as Jamal charged the scene; heard Faulkner shoot first at Jamal; mistakenly assumed that it was the other way around; and then saw someone standing over Faulkner and killing him – the same someone who, according to Choberts first statement, "ran away."

The prosecution’s theory that Jamal fired the first shot, from within 12 inches, into Faulkner’s back, depends on the assumption that the wounded Faulkner, while staggering and falling onto his back, with two assailants right on top of him, was able to pull out his gun, turn, and fire into Jamal’s upper chest a bullet that lodged in his lower back. Also that Jamal passively waited with gun in hand for Faulkner to draw and shoot before continuing his assault.

IT’S POSSIBLE IT HAPPENED THAT WAY. But it’s doubtful that it did – especially since none of the prosecutions three eyewitnesses ever claimed to have seen Faulkner draw, aim, or shoot his gun, and only the less-than-credible Cynthia White claimed to have seen the charging Jamal, with gun in hand, shooting at Faulkner from behind.

The defense theory seems more plausible: "At that moment, Officer Faulkner faced a life-threatening situation. He had one suspect who allegedly struck him bent over the hood of a car with another individual running toward him. He was alone. It was 4 A.M. It was dark. The neighborhood was unsettling." So Faulkner shot Jamal first. And then Faulkner got spun around and shot in the back by Jamal. Or, as the defense claims, he was shot in the back by a man who ran away.

The who-shot-first question is important: A jury might find that even if the gravely wounded Jamal did shoot Faulkner, the circumstances warranted neither the death penalty nor, perhaps, a first-degree murder conviction, which requires proof beyond a reasonable doubt of malicious and unprovoked killing with "deliberation and premeditation."

The defense could argue: Here we have a 27-year-old man with no criminal record. He sees his beloved kid brother being brutally clubbed by a big police officer. He understandably rushes to his brother’s aid, his gun in its holster. The officer turns and shoots him in the chest, nearly killing him. He is racked with pain and shock. Even if you believe that he then shot the officer, it was surely in self-defense, or defense of his brother, or at worst manslaughter, committed after grave provocation and in the heat of passion.

The prosecution could, of course, counter that the execution-style fatal shot, with Jamal standing over his helpless victim, was first-degree murder punishable by death no matter who fired the first shot. But a verdict of manslaughter would be a real possibility, especially if any juror had even a scintilla of doubt as to who fired that fatal shot.

Jamal’s lawyers say that if they win a new trial, they’re after an acquittal, not just a manslaughter conviction. And to that end, they have taken aim at another key element of the prosecution’s case: the theory that Jamal must have killed Faulkner because nobody else but Cook was at the scene.

No fewer than five eyewitnesses (including Chobert) have made statements at one time or another that support the defense theory that someone ran away from the scene. These accounts also raise at least a suspicion that police were so bent on nailing Jamal that they may have shunted aside, or even suppressed, evidence supporting this defense theory.

The most important of these witnesses, and the only one whom the jury heard saying that someone escaped the scene, was a part-time college student, Dessie Hightower. He has consistently and credibly stuck by the story he told police 80 minutes after the shootings: that he saw a man (or possibly a woman) about 6 feet tall, who looked "Jamaican" from behind (meaning that his hair was in dreadlocks or braids), "run from the scene of the crime" before police arrived.

Hightower’s initial account posed a problem for police. He was called in for a reinterview six days later, on December 15, 1981. It lasted almost six hours. He told the same story, adding details about what happened after police arrived: Several officers had kicked and beaten Jamal, and had banged his head against a pole while dragging him to the paddy wagon by his dreadlocks. (Police admitted at trial that they banged his head against a pole and dropped him on his face, but claimed these were accidents.)

In the middle of this reinterview, Hightower was asked to take a polygraph test. (None of the prosecution witnesses was asked to do this, despite White’s and Chobert’s criminal records.) Hightower did so, and was told he had passed, he claims. But prosecutors at this summer’s hearing produced a typed police report, dated 12 days after the polygraph test, purporting to show the opposite. The report says that Hightower was told that there was "deception indicated" when he denied "know[ing] for sure who killed Pol. Faulkner" ; when he denied "see[ing] Pol. Faulkner killed" ; and when he denied "see[ingj Jamal with a gun in his hand."

This report is puzzling in at least two respects. First, it indicates that the polygrapher asked Hightower questions wildly out of sync with police reports of his prior interviews, in which he said he did not see the shootings because his view was blocked by a wall at that moment. Second, the report indicates that the polygrapher did not ask Hightower anything about the important subject on which his prior interviews had focused: his claim that he had seen someone running away.

WHAT KIND OF GAME were the police playing with this exculpatory witness? Aside from Hightower, the prostitute Veronica Jones told police (but not the jury) that after Faulkner fell, "I saw two black guys walk across [the] street and then they started sort of jogging." Two black guys jogging: that matches Chobert’s (second) December 9, 1981, report, which says he saw the shooter and another black man running. Cook, perhaps – and who?

Taking the eyewitness evidence as a whole, it seems more likely than not that somebody had been in Cook’s car with him and had run away before police arrived. It’s also at least conceivable that this mystery man killed Faulkner.

That, in fact, is the sworn testimony of one William Singletary, a new witness who contacted Jamal’s lawyers in 1990 and testified publicly – if not very credibly – for the first time at this summer’s hearing.

Another less than credible new defense witness this summer was Arnold Howard, a lifelong Jamal acquaintance with forgery and burglary convictions on his record. He provided the identity of the mystery man who allegedly was in Cook’s Volkswagen and escaped the scene: Kenneth Freeman, Cook’s (now deceased) partner in a vending stand a few blocks away.

In an affidavit, Howard swore that Freeman "told me he was driving [Cook’s] Volkwagon [sic]" when Faulkner stopped it.

INEFFECTIVE ASSISTANCE

During the six months between Jamal’s arrest and his trial, while police and prosecutors were putting their case together and doing some 150 witness interviews, Jamal’s court-appointed defense lawyer, Anthony Jackson, was doing a lot less.

Jackson was far from the worst lawyer a death penalty defendant has ever had. He had some 20 homicide trials under his belt and other useful experience, including several years at a public interest group that specialized in lawsuits alleging police brutality.

But Jackson’s preparation of Jamal’s case was woefully inadequate, and he was working under conditions that became increasingly difficult. Judge Paul Ribner, who handled the pre-trial proceedings, allocated Jackson the standard Philadelphia ration for an investigator and expert witnesses – " not to exceed $150" apiece. Several Jackson motions for additional funds to investigate the case were denied, as was a Jackson plea for the appointment of a second lawyer to help out.

As trial approached, Jackson’s investigator had stopped work due to insufficient funds, after interviewing only two witnesses. Jackson also lacked funds to pay for trial testimony by a pathologist or a ballistics expert. Meanwhile, Judge Ribner had denied a defense request for a lineup to test the questionable identifications of Jamal as the killer by eyewitnesses Chobert and White. And by May 1982, Jamal was aware of the prosecution’s apparent intention to use one or both of his two (probably phony) "confessions" ar trial.

So perhaps it’s not hard to understand how it was that by the time of the June 1982 trial, Jamal – who had been slipping into the MOVE group’s strange orbit for some time – got the impression that he was being railroaded by a corrupt and dishonest system bent on killing him, and that Jackson was being used as a fig leaf.

Jamal elected on May 13 to represent himself at trial. Jackson, meanwhile, was ordered by Judge Ribner to act as Jamal’s "backup counsel," and the first of his several requests to withdraw was rejected. He ceased to work on the case for the five weeks before trial, because (he says) he assumed that Jamal would handle everything from voir dire to questioning witnesses. But Judge Sabo, who took over the case as trial approached, apparently had other ideas.

AN UNFAIR TRIAL

The unfairness of Jamal’s 1982 trial was almost guaranteed once it was assigned to Judge Albert Sabo (who declines to comment on the case). The short, white-haired judge, who is said to be genial and informal off the bench, was undersheriff of Philadelphia County for 16 years, and a proud member of the Fraternal Order of Police, before taking the bench in 1974. Sabo, now 74 and semiretired, has sent 32 defendants (27 blacks, two Asians, two whites, and one Latino) to death row – far more than any other judge in the nation. He is notoriously pro-prosecution – a cop on the bench.

Judge Sabo and Jamal began battling soon after the start of voir dire, on June 7, 1982. After two laborious days, Sabo granted a request by prosecutor McGill to bar Jamal from continuing to question prospective jurors, on the ground that he was taking too long and making them uncomfortable.

But this smacked of pretext. The Inquirer wrote at the time that Jamal "was intent and businesslike" and "subdued" in voir dire. While some jurors were apparently upset by Jamal’s dreadlocks, beard, and questions about their home life, Sabo’s claim (in findings of fact after this summer’s hearing) that he was "belligerent" during voir dire rings false.

Prosecutor McGill used peremptory challenges to strike 11 of the 14 blacks in the eligible jury pool. By the time testimony began, the black militant defendant, charged with the highly publicized murder of a white policeman, in a then-40 percent black city, faced – as a result of a probably unconstitutional voir dire – a jury of two blacks and ten whites, including a friend of another officer shot in the line of duty.

After being unjustly barred by Sabo from representing himself at voir dire, Jamal made things worse for himself by insisting over and over again, throughout the rest of the trial, that MOVE founder John Africa be allowed to sit at the defense table and counsel him. Sabo rejected any such arrangement because Africa was nor a lawyer. But Jamal refused to accept the finality of Sabo’s rulings. Instead, he repeatedly complained in front of the jury that he was being "gagged" and deprived of his right to represent himself, and did not want or trust Jackson or any "any legal-trained lawyer."

These disruptions led Sabo to bar Jamal from examining witnesses or otherwise representing himself at any stage of the trial, and to expel him from the courtroom – with such comments as "take a walk" – each time Jamal misbehaved.

Jackson, meanwhile, was suddenly thrust unprepared into the arena, whipsawed between an unmanageable client – who, Jackson told Sabo, "has no faith in anything I say" – and a judge who would neither let Jackson withdraw nor give him a break. With Sabo rushing the trial through three consecutive Saturdays, Jackson recalled in an affidavit this year, "I was kept busy each evening feverishly reviewing over 100 police interviews" and other materials, "with little or no time for witness preparation or the defense case."

Under these difficult circumstances, Jackson blew it. For example, he did not interview either of the defense eyewitnesses, Dessie Hightower and Veronica Jones, before the trial. And Jones gave Jackson a nasty surprise when she took the stand: She flatly disavowed her December 15, 1981, statement to police that she had seen "two black guysÖ sort of jogging" after the shootings.

Sabo compounded Jackson’s difficulties by issuing a string of pro-prosecution rulings on key issues throughout die trial. The most prejudicial precluded a belated bid by Jackson to put on the best evidence that Jamal’s confession was a fabrication: Officer Gary Wakshul’s report the morning of the shootings that Jamal had "made no comments" while at die hospital.

Jackson swore at this summer’s hearing that he had simply forgotten to subpoena Wakshul or give the prosecution timely notice that he wanted him to testify. Although this may well have been ineffective assistance of counsel, it does not excuse the responses of prosecutor McGill and Judge Sabo on July 1, 1982, when Jackson sought a brief continuance to summon Wakshul.

McGill strenuously objected, saying, "He is not around." Judge Sabo, scanning the December 9, 1981, Wakshul statement, preposterously suggested that it was consistent with the trial testimony that Jamal had defiantly shouted out a confession at the hospital. Sabo also conjectured – with remarkable clairvoyance – that Wakshul "could be on vacation." McGill checked, and reported back that, in fact, "he is on vacation until July 8."

Jackson asked whether this meant Wakshul was "not in the city." McGill did not answer. Instead, Judge Sabo cut in: "I am not going to go looking for anybody now." When Jamal complained that this was a crucial witness, the judge snapped, "Your attorney and you goofed." Jamal responded: "You are trying to hide the truth."

Ironically, at this summer’s hearing Wakshul recalled that he had spent most of that 1982 vacation at home, leaving town only after "I believed the testimony was over."

ABIT LATER ON THE SAME day (July 1, 1982) that Sabo spurned Jamal’s pleas to call Wakshul, Jamal elected not to testify in his own defense, explaining to the court: "The right to represent myself, the right to select a jury of my peers, the right to face witnesses and examine themÖ were taken from me. It seems the only right that this judge [wants] to confer is my right to take the stand, which is no right at all. I want all of my rights, not some of themÖ because my life is on the line."

The Wakshul episode was not the only instance of sharp practice by prosecutor McGill at the trial. He also sponsored possibly perjured testimony by witnesses including Durham, Bell, Chobert, and White. And in his summation, McGill improperly vouched for Chobert’s testimony, misleadingly suggested that Chobert had no reason to tailor his account to the prosecution’s liking, and contended that Jamal’s vociferous insistence on his right to represent himself showed a "viciousÖ frame of mind."

(McGill rejects these criticisms as "absolutely wrong," and notes that the Pennsylvania Supreme Court rejected all of Jamal’s attacks in a 1989 decision.)

Jackson’s closing was feeble – especially his lame statement to the jury that "you have heard all of the evidence," which was very far from being the case. Jackson also urged the jury (perhaps at Jamal’s insistence) not to "compromise this verdict," and either to convict Jamal of first-degree murder or acquit him of any role in Faulkner’s death.

The jury got the case at noon on July 2. After asking at one point to be reinstructed on the law of first- and third-degree murder and manslaughter, the jury returned its first-degree conviction at about 5 P.M.

AN UNCONSTITUTIONAL SENTENCE

If Jamal’s trial was unfair, his sentencing proceeding was a travesty. It was pushed through by Judge Sabo in less than three hours on the Saturday of the July 4 weekend, the morning after the conviction. And it was riddled with constitutional flaws including ineffective assistance of counsel, improper cross-examination and argument by prosecutor McGill, and inadequate instructions of law by Sabo.

Jackson says he did no preparation for the sentencing proceeding, gave no thought to the "available tactical approaches," and had only a perfunctory meeting with Jamal, at which he neither consulted with his bitterly estranged client on what to do nor looked at the statement that Jamal was about to read to the jury.

The best hope for persuading the jury that Jamal did not deserve to die was to establish the mitigating circumstance of good character, through testimony by some of his many friends and admirers – journalists, politicians, and others. Yet Jackson did not call a single witness in the sentencing phase. (Jackson had called 15 character witnesses during the guilt phase. They testified briefly that Jamal was a peaceful and law-abiding man. But the rules would have allowed for far more detailed accolades at sentencing.)

Jackson’s closing argument at sentencing was pathetic. He wasted time and credibility, for instance, quibbling with the prosecution’s unassailable claim that Faulkner was a "peace officer" within the meaning of the statutory list of aggravating circumstances on the verdict form.

Jamal’s own uncounseled and ill-advised statement to the jury made a disastrous situation worse. His assertion that "I am innocent despite what you 12 people think" was lost amid his attacks on the judge ("black-robed conspirator" ), the prosecutor, and the defense lawyer ("this worthless sellout and shyster" ), and his denigration of the jury. "Had he been actively seeking the death penalty, some have said, he could hardly have done a better job," Marc Kaufman wrote in the Inquirer after the trial.

But if Jamal helped dig his own grave, he was shoved into it by the police, the prosecutor, the judge, and the ineffective defense lawyer, in gross violation of the Constitution. And if Jamal seems a paranoid wacko when one first reads his rantings about a corrupt and dishonest system, a closer look suggests that maybe the system proved him right.

McGill – in his cross-examination of Jamal at the sentencing – made inflammatory use of political pronouncements Jamal had made as a Black Panther 12 years before, when he was 15 years old. McGill read from a 1970 newspaper clipping in which Jamal was quoted saying, "All power to the people," and asserting that blacks "are facing the reality that the Black Panther Party has been facing: Political power grows out of the barrel of a gun." McGill implied that these statements and Jamal’s courtroom behavior showed that Jamal deserved to die.

"I saw it," said Jamal in a recent interview. "When [the name Black Panther] hit the jury, it was like a bolt of electricity – pow."

This alone should require reversal of Jamal’s sentence both under long-established First Amendment and death penalty case law, and under the logic of the Supreme Court’s 8-to-1 decision in Dawson v. Delaware, in 1992. It held that a prosecutor violated the First Amendment in a death sentencing proceeding when he stressed the defendant’s membership in a white racist prison gang called the Aryan Brotherhood. A defendant’s "abstract beliefs," the Court held, could not be used to argue for a death sentence unless relevant to "the issue being tried."

MCGILL MISLEADINGLY suggested in his closing argument that the Jamal quotation showed that "this is not something that happened overnight" – implying that Jamal had been looking for a chance to kill a cop – and stressed that "one thing that cannot be tolerated is constant abuse of authority, defiance of authority, and daily law-breaking."

Daily law-breaking? For all his revolutionary rhetoric, the 27-year-old Jamal had a spotless criminal record. And "abuse of authority" is not supposed to be a capital offense in this country. (The Pennsylvania Supreme Court in 1989 unpersuasively upheld McGill’s use of Jamal’s political statements as showing his "long-standing disdain for the system." )

McGill also sought to minimize the jury’s sense of responsibility by arguing, among other things, that the jurors could bring in a verdict of death without worrying too much about Jamal’s being executed: He would have "appeal after appeal after appeal," and any verdict for death would not be final.

In my view, this violates several U.S. Supreme Court cases and a 1986 Pennsylvania Supreme Court precedent, which had struck down a man’s death sentence because of nearly identical comments to the jury by the same Joseph McGill. (The Pennsylvania court, straining to distinguish these precedents, rejected Jamal’s appeal on this point too.)

Judge Sabo’s instructions of law to the jury were also constitutionally flawed in at least two respects: Sabo made no explicit mention of the jury’s obligation to consider any evidence of overall good character as a mitigating circumstance. He also used a standard Pennsylvania verdict form that appears to violate principles later detailed in the 1988 Supreme Court decision in Mills v. Maryland, by leaving the false implication that unanimity might be required to find any such mitigating circumstance.

CELEBRITY ON DEATH ROW

After his 1982 trial, Jamal, like most death row inmates, largely disappeared from view. But by 1989 – when his less-than-well-crafted direct appeal was spurned by the Pennsylvania Supreme Court – the seeds were being planted for his remarkable rise to global celebrity. He has since emerged as the nation’s premier anti – death penalty poster boy, and as a rallying point for what remains of the radical left.

In the late 1980s, Jamal’s MOVE supporters brought his cause to the attention of the far left, New York-based Partisan Defense Committee, which portrayed Jamal as a political prisoner and began organizing protests around the country and in Europe. Jamal’s cause was also taken up by other leftist groups, death penalty opponents, and black politicians.

Leonard Weinglass, a seasoned 62-year-old trial lawyer with a long list of leftist causes and criminals on his resume, was recruited by Jamal’s family and friends and took over as lead counsel in early 1992. Weinglass has represented three defendants in the 1969 – 1970 Chicago Seven conspiracy trial as well as Angela Davis, Jane Fonda, Kathy Boudin, and various protesters, accused bombers, and killers. Working with Weinglass are his protÈgÈ Daniel Williams, of New York’s Moore & Williams; PDC staff counsel Rachel Wolkenstein; and Jonathan Piper, a 35-year-old associate at Chicago’s Sonnenschein Nath & Rosenthal. Piper and others at his firm have put in thousands of pro bono hours on the case.

While his legal team was preparing for post-conviction appeals, Jamal was writing dozens of essays about prison life and the criminal justice system. He was published in the Yale Law Journal (in 1991), the Nation magazine, and elsewhere, and he taped radio broadcasts that were aired in New York, San Francisco, Canada, Cuba, England, France, Germany, and Australia. Addison-Wesley Publishing Co. collected many of these commentaries this spring in Jamal’s book, Live from Death Row, which has been a commercial success.

THE SABO CIRCUS: PART II

National and international media attention on Jamal’s case reached a crescendo this summer, after Pennsylvania governor Thomas Ridge signed a death warrant on June 1, scheduling Jamal’s execution for the week of August 13. Jamal’s legal team filed his first state petition for post-conviction relief, as well as related motions for discovery, a stay of execution, and recusal of Judge Sabo – some 300 pages in all – on June 5.

Under Pennsylvania procedure, Judge Sabo had the option of presiding over the post-conviction proceeding, much of which consisted of attacks on his own conduct at the 1982 trial. Although semiretired, he seized the case with relish, summarily spurning contentions that he should recuse himself because of what Jamal’s lawyers called his bias at Jamal’s trial, his general bias against African-American capital defendants, and "his inability to endow this proceeding with… the appearance of fairness and impartiality."

This last accusation proved an understatement. Throughout the internationally scrutinized post-conviction hearing, which ran from July 26 to August 15, and the closing arguments on September 11, Judge Sabo flaunted his bias, oozing partiality toward the prosecution and crudely seeking to bully Weinglass, whose courtroom conduct was as correct as Sabo’s was crass.

Sabo denied all of Jamal’s discovery requests and quashed over 25 subpoenas, many of which sought evidence that Sabo had barred the lawyers from exploring through discovery or other witnesses. He sharply restricted Jamal’s lawyers in their questioning of witnesses, and blocked them from making offers of proof on the record to show the import of the precluded testimony. In a letter to Sabo, Weinglass complained that the judge’s conduct "raises the troubling spectre of attempting to defeat judicial review."

Sabo also hurled two unwarranted contempt-of-court citations at Jamal’s lawyers. On August 2 he ordered Rachel Wolkenstein handcuffed and arrested for repeatedly seeking to explain for the record the relevance of two witnesses whose subpoenas Sabo had quashed. And on August 11 Sabo fined Leonard Weinglass $1,000 for failing to hand over some photographic slides quickly enough.

"We were in some kind of a game where, when we complied with a request or a ruling, the rules changed," recalls Weinglass, adding that Sabo and the late judge Julius Hoffman of Chicago Seven fame arc the only two judges who have held him m contempt. Asked to compare the two, Weinglass responds: "Judge Hoffman had a lot more finesse and a good sense of humor. Judge Sabo is just a blunderbuss of bias."

Jamal’s lawyers did not hit any home runs at the hearing, and had some setbacks. Their new witnesses – including William Singletary and Arnold Howard – were less than credible. But they did succeed in doggedly piling up a record that, when scrutinized in detail, establishes the unfairness of Jamal’s trial and sentencing; casts a dark shadow over the integrity of the system that put him on death row; raises substantial doubt about whether this was a first-degree murder; and leaves a lingering question whether Jamal killed Faulkner at all.

Sabo rejected Jamal’s petition on September 15, four days after receiving the parties’ post-hearing briefs and hearing their closing arguments. Much of his 154-page opinion was lifted verbatim from the prosecution’s proposed findings of fact and conclusions of law. Jamal’s lawyers have appealed to the Pennsylvania Supreme Court. If they lose there, they will seek federal habeas corpus review.

WHAT SHOULD BE DONE

A careful appraisal of the facts, and a scrupulous application of the constitutional precedents, would lead a reviewing court to reverse both Jamal’s sentence and his conviction, and to grant him a new trial. (That’s not a prediction.)

But while I have no doubt that Jamal’s death sentence should be reversed, I initially hesitated to call for a new trial, and I suspect that judges might hesitate as well.

The reason (which no judge would admit) is this: Big-city juries can no longer be counted on to convict – even when the defendant is clearly a vicious murderer – in racially charged cases poisoned by police misconduct. See, for example, People v. Orenthal James Simpson. So a new trial for Jamal might very well mean an acquittal.

And the evidence that Jamal shot Faulkner – and probably fired the fatal shot – remains very strong, even if, as I believe, both of Jamal’s "confessions" were fabrications, and the police and prosecutors cannot be trusted, and the eyewitness testimony was unreliable, and someone ran away from the scene, perhaps after shooting Faulkner at least once.

Is it clear beyond a reasonable doubt that Jamal killed Faulkner? I lean toward that conclusion, but with some ambivalence. I still have a nagging little question about whether the real killer may have gotten away. And the evidence that tips me toward finding Jamal guilty beyond a reasonable doubt is supposed to be irrelevant (under Fifth Amendment case law), and would be inadmissible at any retrial.

That evidence is the 14-year-long silence of both Jamal and his brother, William Cook, about what happened. Neither of them has ever said how Faulkner was killed, or even denied explicitly that Jamal killed him. Not on the day of the murder. Not at Jamal’s trial. And not during the 14 years since.

The most Jamal has ever said about the murder was his statement to the jury during the sentencing phase that "I am innocent of these charges."

What’s that supposed to mean? Jamal’s lawyers say it means Jamal didn’t shoot Faulkner. I’m not so sure. This is a man who chooses words with care. If he were truly innocent, wouldn’t he have found at least one occasion, in the 5,000 days since Faulkner’s death, publicly to say something like "I didn’t shoot him" ? And to explain who did?

Jamal will not answer such questions.

Although he has granted some interviews, he declined my request for one, through his lawyers, after I refused to agree to their condition that I promise in advance not to ask Jamal anything about what happened the morning of Faulkner’s death.

THE SILENCE OF JAMAL AND Cook leaves me convinced beyond a reasonable doubt that Jamal shot Faulkner at least once, and comes very close to convincing me that he fired the fatal shot.

Still, there is good reason to believe that if Jamal did fire the fatal shot, he acted with a mental state somewhere on the spectrum of culpability between manslaughter and classic first-degree murder, because he resorted to deadly force only after seeing Faulkner beating Cook bloody, and probably only after being shot by Faulkner.

And for doing that – in the interval of a few seconds that crashed without warning into what had for 27 years been a largely admirable life – the appropriate penalty is less than death, and less than life without parole. The maximum penalty for manslaughter in Pennsylvania in 1981 was ten years, with parole eligibility after five. I’m not sure that this was a mere manslaughter, and I’m not sure that the 14 years Jamal has already spent behind bars – mostly in the hell-on-earth called death row – is punishment enough. But it’s close.

And that is reason enough to put aside any qualms about the possibility that granting Jamal the appropriate legal relief might lead to his walking free. He deserves a new trial, and he should get one.

The post Guilty and Framed appeared first on Stuart Taylor, Jr..

Witch-Hunt or Whitewash?

Stuart Taylor, Jr. — Mon, 17 Oct 2011 08:32:34 +0000

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.

But on balance, the still incomplete evidence seems to point tentatively toward a combination of the first two hypotheses: that the Murdoch legal team put the information from which Fox’s foreign equity could be inferred just deep enough in its 1985 application and subsequent filings to escape notice, while disclosing just enough to negate any claim of overt deception. As for the FCC, “they winked-or they blinked-and it’s hard to know which,” in the words of a lawyer familiar with the case.

Three points emerge with some clarity as one looks through the window that this episode provides into regulatory lawyering in Washington: Murdoch’s shifting squadrons of lawyers have resorted to ever-more-deliberate dodges since 1985 to let sleeping dogs lie; they have sprinkled some misleading assertions of fact and law through their defenses of Fox’s candor over the past year (while their attackers have committed similar sins); and the FCC’s investigative procedures, including an egregiously overbroad gag order, have created at least an appearance of unfairness to Fox.

The FCC is expected to issue some sort of ruling in April (or possibly late March) on the two issues it has been investigating: whether News Corp.’s ownership of over 99 percent of Fox’s equity violates the foreign ownership statute (which might require a costly restructuring); and whether there is enough evidence to warrant a full-dress, trial-type hearing into alleged violations by Fox and its lawyers of the extraordinarily exacting “duty of candor” that every licensee theoretically owes the FCC (which could paralyze Fox in the marketplace while the hearing unfolds, and could conceivably lead to sanctions as serious as revocation of licenses). Whatever the FCC does, an appeal to the D.C. Circuit seems assured.

The controversy has a large cast of characters: four law firms that have done work for Murdoch; the FCC; two lawyers who first challenged Fox on the foreign ownership issue in 1993 on behalf of NAACP branches in New York City, New Jersey, and Pennsylvania, and who have now urged the FCC (in hundreds of pages of briefs filed by NAACP counsel David Honig and Laura Blackhurne) to find Fox in violation of the duty of candor and to revoke all its broadcast licenses; and NBC, which put the dispute in the media spotlight – some say spurring the FCC to toughen its posture towards Fox – by loudly attacking Fox’s foreign ownership last November 30, only to back our of the fight on February 17 in pursuit of business deals with the Murdoch empire.

Then there is House speaker Newt Gingrich, whose now-famous book deal with Murdoch’s Harper Collins publishing house, together with a series of grudgingly incremental disclosures that Murdoch had met with Gingrich last November 28, that he had mentioned Fox’s FCC problem, and that Fox in-house lobbyist and executive Preston Padden had been there too – brought a flurry of rather implausible front-page charges, especially from House Democratic whip David Bonior (who was shocked! shocked! that Murdoch had had his lobbyist along), that Murdoch might be buying the new King of the Hill, the better to swat aside the FCC.

At the center of the storm, of course, is the 64-year-old billionaire who may be the world’s most successful self-made media baron – the visionary, world-beating, quietly combative, yellow-journalism-peddling, union-busting, Australian-born entrepreneur who has built the world’s first global print and broadcast empire. Murdoch has also done at least two things since becoming a New Yorker (around 1974) that no native-born American could do: get a fourth television network off the ground (with indispensable help from Barry Diller) and keep the New York Post alive (with indispensable help from the FCC).

In a February 27 press conference, Murdoch alerted that “we have been fully candid with the government”; complained that “this whole sorry episode simply shows how the regulatory process can be abused and how lawyers and lobbyists can be employed in Washington to attack unwanted competition”; and said that if the FCC hearing “turns into a kangaroo court, we would get it out into a proper court where we would win.”

Murdoch and his troops have on occasion floated, and on occasion backed away from, innuendos suggesting that the FCC probe is driven by sinister motivations.

“Either your people can’t read, don’t understand English, don’t understand the damned structure [of Fox’s ownership], or you have a witch-hunt in this,” Murdoch said in a January 27 deposition taken by two FCC lawyers. “And I would speculate that the [FCC] people who knew that [Fox would be part of News Corp.] in 1985 were the same intelligent people who are there today, and that they understood it, whatever they’ve been told to misunderstand today.”

Murdoch’s apparent implication was that somebody may have told the FCC lawyers to lie. Was he referring to their boss, FCC chairman Reed Hundt? Murdoch didn’t say, and Fox’s Padden suggests no. But other Murdoch supporters, stressing Hundt’s close relationship with Vice-President Albert Gore, Jr., and Clintonite displeasure at the regular savaging of the president and the First Lady by Murdoch’s New York Post, suggest that political considerations may have given the FCC investigation a harder edge than the facts would warrant. Still others suggest the hard edge is a sham – a prelude to a Hundt-directed whitewash.

Hundt, through a spokeswoman, declines to comment. FCC general counsel William Kennard, a Hundt appointee, asserts: “Any suggestion that the investigation was motivated by political or other inappropriate considerations is preposterous.”

1985: FOURTH NETWORK DREAMS

It was exactly ten years ago, in early April 1985, that Murdoch seized his chance to enter the U.S. television market, and in a very big way.

Murdoch started his brilliant career with a family-owned newspaper in Adelaide, Australia, which he built into a powerhouse of tabloid publications before making the move to London’s Fleet Street in 1969 by buying the salacious weekly News of the World. By 1985 Murdoch and his News Corp. had already gobbled up a huge collection of media companies in Britain, including The Sun, the nation’s largest-circulation daily, and the prestigious Times of London, and had begun laying the groundwork for a satellite television service called the Sky Channel, which now beams programs to cable systems throughout Europe.

In America, he had the New York Post, the Boston Herald, the Chicago Sun-Times, The Village Voice, and New York magazine (all of which he later sold, while buying back his beloved Post in 1993 and acquiring other publications including TV Guide). And in early 1985 Murdoch’s News Corp. bought half (and eventually all) of Twentieth Century Fox Film Corp., with its rich film library.

It was also in early 1985, fortuitously, that Murdoch’s friend and fellow self-made billionaire John Kluge, who owned Metromedia Radio & Television, Inc., told Murdoch he wanted to sell six of his company’s seven big-city television stations, in New York, Los Angeles, Chicago, Dallas, Houston, and Washington, D.C. (Kluge had committed to sell Metromedia’s Boston station to the Hearst Corp.) Murdoch saw a huge opportunity to lay the foundation stones of a fourth major television network-a dream widely dismissed at the time as quixotic.

With some very costly financial help from Michael Milken of Drexel Burnham Lambert, Murdoch and Kluge worked out a deal totaling over $2 billion, in which a new Murdoch company (originally named News America Television, Inc., and now named Fox Television Stations, Inc.) would buy the seven Metromedia stations, resell the Boston station to Hearst Corp. for $450 million, refinance over $1 billion in Metromedia junk bonds, and pay an estimated $600 million in cash, financed by News Corp. borrowings from major banks.

LEGAL COMPLICATIONS

Murdoch and Kluge would need FCC approval for the transfer of the stations. I t was clear from the start that this could present at least two serious problems: Murdoch would need a temporary FCC waiver (pending divestiture) of the rule barring cross-ownership of newspapers and television stations in the same city, and would need to change his citizenship from Australian to U.S. in a hurry, to comply with the statutory requirement that broadcasters be controlled by U.S. citizens. He did both with ease, as it turned out, although the citizenship-switch angered a lot of people in Australia, and forced divestment of News Corp.’s two television stations there.

There was another possible legal problem with the deal, however, one that seems somehow to have escaped the notice of the FCC and nearly everyone else (with the exception of the Murdoch legal team) for more than eight years: Fox’s ownership structure arguably did not then, and does not now, comply with the foreign ownership restrictions in the Communications Act of 1934.

The legal questions at the heart of this issue, and of the current lack-of-candor FCC investigation, are these:

(1) Whether the statutory presumption (as the FCC has long construed it) against ownership of broadcasters by holding companies of which “more than one-fourth of the capital stock is owned of record or voted by aliens” (emphasis added) absent a special finding by the FCC that an exception would serve the public interest – applies to a holding company that (like Fox’s) has less than 25 percent foreign-owned voting stock, but more than 25 percent foreign equity contributions and other!r attributes of ownership; and

(2) Whether Fox’s lawyers should have understood in 1985 that the FCC staff would want to be told if the percentage of foreign equity were likely to exceed 25 percent, so that Fox’s duty of candor required it to specify this in so many words, or at least to make it clear and conspicuous.

An analysis of the legislative language, history, and FCC and judicial precedents suggests that the answer to the both questions is probably yes: The case law indicates that Fox’s lawyers should have understood in 1985 – and the documents indicate that some of them did understand by 1988 – that the FCC might well ‘perceive News Corp. ownership of more than 25 (let alone 99) percent of Fox’s equity as posing a major problem [see sidebar].

SEPARATING EQUITY FROM CONTROL

It was against this legal background that Murdoch and his team went about structuring the Metromedia deal and trying to sell it to the FCC in 1985.

In order to comply with the foreign ownership law (as they construed it), Murdoch’s lawyers devised an unusual arrangement for ownership of Fox’s holding company, Twentieth Holdings Corp.: The 7,600 shares of preferred stock, all of which would go to Murdoch, would have 76 percent of the voting control, even though he would end up contributing less than one-eight-hundredth of the equity capital when the deal ultimately closed in 1986, and would get only a commensurately small fixed return and percentage of any assets on liquidation. The other 24 percent of the voting control would go to the 2,400 shares of common stock, all to be indirectly owned (through four tiers of wholly owned subsidiaries) by News Corp., in exchange for what turned out to be over 99 percent of the equity contributions.

The main purpose of this structure was to satisfy the FCC on the foreign ownership front by showing that Murdoch (a soon-to-be U.S. citizen) would have 76 percent voting control over Fox (which he ended up sharing with Diller). And Fox makes a convincing case that Murdoch did (and does) have de jure control of Fox, as well as de facto control of News Corp. itself.

Combining this with Murdoch’s desire not to contribute a significant amount of capital led to a peculiar, not to say artificial, Fox ownership structure. As of 1986, when the deal was consummated, each of Murdoch’s 7,600 shares of “$100 par value” preferred stock represented $100 in equity, while each of News Corp.’s 2,400 shares of “$1 par value” common stock represented over $250,000 in equity. (Actually, when the deal closed in 1986, Murdoch bought 5,100 and Barry Diller bought 2,500 of the 7,600 preferred shares; Diller sold his shares to Murdoch when he left Fox in 1992.)

News Corp.’s contribution and indirect ownership of more than 99 percent of Fox’s equity has three principal manifestations: the Australian company got common stock valued at over 99 percent of Fox’s fair market value; it got the right to over 99 percent of Fox’s profits (and a commensurate risk of loss); and it got the right to over 99 percent of any assets distributed on liquidation.

(Another possible incident of News Corp.’s ownership, on which the FCC has apparently never focused, is the possibility that when Murdoch dies, control over News Corp., and whatever influence it may have over Fox, might end up in the hands of Australians.)

A MURDOCH-FCC LOVEFEST – AND A MYSTERY

Something mysterious happened between Murdoch’s legal team and the FCC in 1985, and the record developed in the FCC’s investigation so far doesn’t resolve all the mysteries.

Murdoch and Kluge presented the proposed sale to then-FCC chairman Mark Fowler, veteran commissioner James Quello (who is still at the FCC), and others, in visits to the agency’s drab quarters in late April and early May 1985. Among those Murdoch met with were Roy Stewart, a career FCC lawyer who was then head of the video services division, which handled the Fox application.

“It was a pretty cordial afternoon,” Murdoch recalled in his deposition this past January. “They said, that sounds fine. I’m not saying he’s giving his formal approval, but we left very confident that everything would be – that it could be worked out by the lawyers.” Murdoch stressed that “I do distinctly remember the meetings with Mr. Stewart,” and deriving “quite a strong impression … that I would be welcomed into the television industry.” Most important, Murdoch swore that he told Stewart “that News Corporation would be buying the Metromedia stations.”

That’s not what Stewart remembers, however.

In a February 24 declaration, the lawyer swore: “At no time was I aware that News Corporation would own 99 percent of the licensee’s equity or any percentage above 25 percent. Had I been aware of that fact, I would have requested further information.”

Stewart is both the most important witness against Fox in the current lack-of-candor investigation and the head of the FCC’s Mass Media Bureau – which has been conducting the investigation under the leadership of Stewart’s deputy, Renee Licht, since he recused himself last year.

The second most important witness against Fox is Stephen Sewell, who was Stewart’s deputy in 1985 and has since retired. Sewell swore in a January 12 declaration: “If I had known [in 1985] that 25 percent or more of the equity … was indirectly held by News Corp., I would have recommended that the applications not be granted unless News Corp.’s equity Interest in [Fox] was reduced to 25 percent or less.

No one was sounding such sour notes in 1985, however. “Everybody seemed to be eager to see this transaction happen,” recalled Howard Squadron, of New York’s Squadron, Ellenoff, Plesent & Sorkin, who has been Murdoch’s main outside counsel in the U.S. since the early 1970s, in his January 24 deposition.

Chairman Fowler, commissioner Quello (a Democrat originally appointed in 1974), and others were publicly enthusiastic about Murdoch’s proposed entry into the television industry. The prospect of building a fourth major network to compete with ABC, CBS, and NBC had been a major FCC policy objective for decades, and Murdoch seemed as good a bet as anyone to pull it off. Fowler was a fervent advocate of deregulation and unfettered competition, and a Reaganite soulmate of Murdoch, who later praised Fowler as “one of the great pioneers of the communications revolution” and “perhaps the most successful of any Reagan appointee.”

“The buzz at the time was that Mark Fowler had made it absolutely clear to everybody at the commission that he wanted Murdoch in, that he thought it was good, it would create the fourth network, and the general idea around the commission was to help this guy get what he wanted,” recalls Andrew Jay Schwartzman, head of the Washington-based nonprofit Media Access Project.

Adds another veteran communications lawyer: “In an agency like that, it’s hard for the worker bees to go back to the emperor and say, ‘Gee, you really can’t do this.’ … The outcome was determined and the staff had to get there.”

Fowler did not respond to four telephone messages seeking an interview.

Given Murdoch’s plan to become a U.S. citizen, his de jure control of Fox, his de facto control of News Corp. and his almost unique command of his own empire – all of which negated any real danger of the kind of foreign propagandizing against which the foreign ownership statute was principally designed to guard – it might have been especially hard for worker bees at the FCC in 1985 to spoil the party. Especially by raising such nettlesome questions as whether News Corp.’s financing would come in the form of equity or debt – which Fox left very unclear in 1985, and which happens to be one of the issues at the center of the pending FCC investigation.

Perhaps there was a kind of “don’t ask, don’t tell” understanding between Murdoch’s lawyers and FCC staffers: “If you’ll be kind enough not to ask us, we’ll be good enough not to tell you, and our bosses will all be pleased.”

But still, the law is the law, and (as NBC stressed when it jumped into the Fox fight last November) the FCC is supposed either to enforce it across the board or to change it for everyone. And broadcast licensees, and their lawyers, are supposed to tell the FCC everything it might want to know – and to put the important stuff right under its nose – so that the agency can fairly enforce the law according to its own interpretation, technicalities and all.

“IT’S ALL SEMANTICS”

Murdoch said in his FCC deposition that “it didn’t seem to matter to me,” or to anyone else, how much of the money that News Corp. borrowed from the banks to finance the deal would be downstreamed to Fox as debt and how much as equity. “We had a company here which we stated from day one was to be parr of News Corporation, he said, “and it didn’t matter whether you called it bank-guaranteed debt, equity, shares, you know. You can get a bunch of accountants to give any names to this. It’s all semantics …. If we had any inkling that you would have preferred debt, we would have done it with debt.”

In any event, asserted Murdoch, he hires lawyers to worry about details like that. Lots of lawyers.

Howard Squadron headed the Murdoch legal team in 1985 (and now), but he was not an FCC specialist. On that front, in April 1985 the Murdoch team turned to Joel Levy of Washington, D.C’s Cohn and Marks, whom they had previously retained for another FCC matter, and he helped develop the 76-24 preferred-common voting stock structure described above.

But at the suggestion of Murdoch’s politically attuned friend Robert Strauss, the Democratic potentate and senior partner at Akin, Gump, Strauss, Hauer & Feld, Murdoch also brought in Michael “Mickey” Gardner, who then headed the firm’s communications practice in Washington. Gardner had chaired the 1980 Reagan transition team for the FCC, and had the right Republican connections. (Gardner says he also had a track record showing that he could be effective at “highlighting the competitive benefits” of the deal.) Gardner became “the point person at the commission,” as he put it in his deposition, for the 1985 application.

This co-counsel arrangement was a formula for rivalry. Levy and Gardner each hoped for a long and lucrative legal relationship with Murdoch and his companies. “There were lots of things I’ve learned in retrospect – or there were some things that I’ve learned in retrospect – that Akin, Gump did that I was unaware of at the time that bore on [our] responsibility” to advise the client how “to comply with all of the requirements of the FCC” Levy recalled in his January 23 deposition. Levy’s two FCC interrogators inexplicably failed to pursue this intriguing tidbit, and Levy declines elaborate.

In any event, Gardner was ultimately to get the inside track with Murdoch, and by early 1986, according to Levy’s testimony, he was told by Howard Squadron that “the client had determined that it didn’t need two Washington counsel, and it preferred to … keep the representation with Akin, Gump, and therefore, we were superfluous.”

Murdoch and his legal team, including Squadron, Levy, and four other lawyers who worked on the 1985 application for FCC approval, all swore – with one striking exception – in FCC depositions early this year that in 1985 it had been clear to everybody, on both sides, that News Corp.’s 24 percent of Fox’s voting shares put it below the statute’s 25 percent benchmark, and that News Corp.’s percentage of Fox’s equity was irrelevant to analysis of the foreign ownership issue.

“There was a time when there was a discussion of presenting the application on two bases, including a public interest basis,” Squadron said in his January 24 deposition, “but … we discarded that notion because we had gotten a very clear signal from the FCC staff that as long as Rupert became a citizen and as long as he exercised as an American citizen the voting control of [Fox and] de facto control of the parent company in Australia … that that would be satisfactory.”

GARDNER OFF THE RESERVATION

The exception was Mickey Gardner:

Q: “Was it your understanding that the 25 percent benchmark was complied with by the transaction?”

A: “No, clearly not. We were exceeding 25 percent. [There] was no mystery to that.”

In addition to that testimony in his January 30 deposition, Gardner also said that News Corp.’s relative contribution to Fox’s capital was “always relevant,” because it meant that News Corp.’s “projected ownership would be far in excess of 25 percent.” His testimony clashes not only with that of his co-counsel, but also with Fox’s current position and with the apparent premise of the FCC’s finding of compliance with the foreign ownership statute.

Gardner’s testimony did back up Fox’s fundamental claim that it fully disclosed all relevant facts to FCC staffers, both orally and in writing. But his unqualified assertions that Fox “clearly” was above the 25 percent benchmark, because equity counts, point toward two possible inferences:

Either Gardner, Fox’s “point person at the commission” in 1985 (who was dropped as Fox’s FCC counsel in 1990) did not know what he was talking about when he gave his deposition, or the Murdoch legal team in 1985 must have seen the foreign equity issue as posing a far more serious potential “benchmark” problem than Fox or any of its other lawyers have ever acknowledged. Since the second inference could pose a severe “lack of candor” problem, Fox is pushing the first.

Under Gardner’s analysis, the only basis on which the FCC could have approved Fox’s purchase of the Metromedia stations was by making the kind of special “public interest” finding that has been made in only one case (in 1966) in the 61-year history of the Communications Act. According to Gardner, the FCC did just that, finding the deal in the public interest both because of Murdoch’s de facto control of News Corp. and because of the competition Murdoch could bring to the three networks. Murdoch’s hope of creating a fourth network was, Gardner testified, “the dominant consideration” in overcoming the foreign ownership hurdle, and “the commission, in granting the license, determined it was greatly in the public interest to have a fourth network.”

It would have made perfect sense for the FCC to have decided the case on this basis. But nobody besides Gardner, either on the Murdoch team or (apparently) at the FCC, recalls the FCC doing that. Nor does Fox’s bulky June 24, 1985, application, or the FCC’s lengthy November 14, 1985, opinion approving Fox’s acquisition of the six Metromedia stations, rely on Gardner’s “above-the-benchmarkbut-in-the-public-interest” rationale for finding compliance with the statute. Rather, both the Fox application and the FCC opinion read as though the possibility that Fox’s foreign ownership would be above 25 percent-let alone above 99 percent had never crossed anyone’s mind.

(Gardner says he sees no real inconsistency between his testimony and that of his former co-counsel, and insists that his rationale is implicit in the FCC’s opinion.)

HOW FCC STAFFERS COULD HAVE MISSED IT

Murdoch’s lawyers filed their formal application for transfer of the six stations on June 24, 1985. And now he and his current lawyers claim that the application provides inescapable, documentary evidence that Fox fully disclosed to the FCC that News Corp. would own almost all of Fox’s equity.

At Murdoch’s February 27 press conference, he triumphantly unveiled a letter that professor Marvin Chirelstein of Columbia Law School had sent to the FCC (for a fee that he will not disclose), concluding that “the fact that News Corp. would supply and own all but a tiny fraction of [Fox’s] equity capital was clear and unmistakable” from “a plain reading of the 1985 applications and related documents.”

Problem was, Chirelstein – to whom Murdoch’s lawyers had given only a carefully culled subset of relevant materials – gave a misleading account of some highly material facts in his letter, which current Fox FCC counsel William Reyner, Jr., of Hogan & Hanson quoted with approval and without qualification in his 95-page brief that day. He also attached Chirelstein’s letter as Appendix A. (On which more below.)

Reyner and Chirelstein point to two exhibits buried in the application – which fills a three-inch thick binder – as clinching their view that Fox fully disclosed that News Corp. would supply almost all of the equity. And the first time one reads through the two exhibits – especially the one that says all $600 million to finance the deal is coming from News Corp. – it’s tempting to agree with them, at least with the benefit of hindsight.

But the Fox-Chirelstein thesis leads almost ineluctably to the deduction that Roy Stewart and Stephen Sewell, the two FCC lawyers who have sworn they never knew that News Corp. would have over 25 percent of the equity, must be idiots or liars. And that deduction collides with the consensus view of seven Washington communications lawyers who have dealt with the two, including some who were on the Murdoch team in 1985. In fact, Stewart is widely respected (albeit known for a choleric personality), and the now-retired Sewell was among the most highly regarded career lawyers the FCC has ever had. Former Fox counsel Gardner, for one, testified in his deposition that Sewell “is the most thorough … regulatory attorney I’ve dealt with.”

So how could Stewart and Sewell (who aren’t talking to the press these days) have missed it?

Here’s how:

Stewart stressed in an interview with The Washington Post last June: “They [Fox] certified that they were financially qualified to make the purchase and would comply with the [alien ownership] statute”; he added that the FCC did not know in 1985 what percentage of the equity would come from News Corp. because Murdoch and his team had not yet settled on the financing.

The Fox certification was on FCC Form 314, which Fox filled out as part of its June 24, 1985, application. Fox put an “X” in the “yes” box opposite the following question: “Is the applicant in compliance with the provisions of Section 310 of the Communications Act of 1934, as amended, relating to interests of aliens and foreign governments?” Fox also added a cross-reference: “See Exhibit I.”

Stewart’s implication to The Washington Post was that this “yes” would have been regarded by the FCC staff as tantamount to a representation that Fox (including its equity) would be less than 25 percent foreign-owned. Two other communications lawyers say the same, even though the statutory language hardly compels such an inference.

If these lawyers are right (and Fox suggests they’re wrong, at least about the equity part), then the FCC staff could reasonably have assumed that News Corp. would end up owning under 25 percent of the equity in Fox unless Fox said otherwise, clearly and conspicuously, in the cross-referenced…

Murdoch and his troops have on occasion floated, and on occasion backed away from, innuendos suggesting that the FCC probe is driven by sinister motivations.

1985: FOURTH NETWORK DREAMS

It was exactly ten years ago, in early April 1985, that Murdoch seized his chance to enter the U.S. television market, and in a very big way.

LEGAL COMPLICATIONS

The legal questions at the heart of this issue, and of the current lack-of-candor FCC investigation, are these:

(1) Whether the statutory presumption (as the FCC has long construed it) against ownership of broadcasters by holding companies of which “more than one-fourth of the capital stock is owned of record or voted by aliens” (emphasis added) absent a special finding by the FCC that an exception would serve the public interest – applies to a holding company that (like Fox’s) has less than 25 percent foreign-owned voting stock, but more than 25 percent foreign equity contributions and other!r attributes of ownership; and

SEPARATING EQUITY FROM CONTROL

It was against this legal background that Murdoch and his team went about structuring the Metromedia deal and trying to sell it to the FCC in 1985.

A MURDOCH-FCC LOVEFEST – AND A MYSTERY

Something mysterious happened between Murdoch’s legal team and the FCC in 1985, and the record developed in the FCC’s investigation so far doesn’t resolve all the mysteries.

That’s not what Stewart remembers, however.

Fowler did not respond to four telephone messages seeking an interview.

“IT’S ALL SEMANTICS”

In any event, asserted Murdoch, he hires lawyers to worry about details like that. Lots of lawyers.

GARDNER OFF THE RESERVATION

The exception was Mickey Gardner:

Q: “Was it your understanding that the 25 percent benchmark was complied with by the transaction?”

A: “No, clearly not. We were exceeding 25 percent. [There] was no mystery to that.”

(Gardner says he sees no real inconsistency between his testimony and that of his former co-counsel, and insists that his rationale is implicit in the FCC’s opinion.)

HOW FCC STAFFERS COULD HAVE MISSED IT

So how could Stewart and Sewell (who aren’t talking to the press these days) have missed it?

Here’s how:

Fox didn’t do that. Instead, Exhibit 1 stressed that Murdoch would become a U.S. citizen; that he would own all of the preferred stock; that control of Fox would be limited to Murdoch and other U.S. citizens; that the common stock would be owned (through several intermediate corporations) by Australia-based News Corp., of which Murdoch had de facto voting control; and that: ‘The preferred stock will exercise 76 percent of the vote on all matters; and the remaining 24 percent of the vote will be exercised by the common stock. The holders of the preferred shares will be entitled to a fIXed return on capital investment. All other profits and losses of the corporation will be attributed to the common shares.”

An FCC lawyer reading Exhibit I might think this an unusual arrangement, with the preferred stock having 76 percent of the vote and the foreign-owned common shares getting all profits and losses above the preferred’s unspecified “fixed return.” But nothing in Exhibit 1 would necessarily have tipped this hypothetical FCC lawyer off to the fact that each foreign-owned common share would have almost three thousand times as much equity as each Murdoch-owned preferred share.

If our FCC lawyer had kept paging through the fat application, to Exhibit 2, and had read it closely-a questionable assumption-he might have begun to suspect that more than 25 percent of the equity would be foreign-owned. Headed “Source of Funds,” Exhibit 2’s three short paragraphs begin:

“To complete the proposed transaction, [Fox] will be required to have available approximately $600 million above the assumption of existing debt. These funds will be provided through open credit lines in favor of News Corporation Limited … and its subsidiaries now available with American, European, and Australian banks.” Exhibit 2 goes on to say that this $600 million would be “contributed as capital or loaned,” or some of each; there was no debt-equity breakdown.

Reading this “Source of Funds” exhibit now, Reyner and Chirelstein contend that any inquiring reader (to which Chirelstein adds the qualification, “with a modicum of financial and corporate experience”) should have been able to infer that all of the equity capital was coming from News Corp., and that its common stock “represented virtually all of the equity value of the company,” in Reyner’s words.

WHERE’S WALDO?

But Fox’s (and Chirelstein’s) claims that anyone paging through Fox’s 1985 application should easily have spotted this in the “Source of Funds” exhibit is a bit like someone who has been shown where Waldo is hidden in a child’s “Where’s Waldo” picture saying that any fool should spot Waldo with ease. It helps if you know where to look. Especially if only part of Waldo is there.

Imagine what our by-now-somewhat-drowsy, hypothetical FCC staff lawyer might have been thinking as he read the “Source ofFunds” exhibit (if any FCC lawyer did read it) in that sultry Washington summer of 1985:

“Hmm. Looks like the money’s coming from News Corp. And some of it might be ‘contributed as capital’ -sounds like equity. Gee, could they be thinking of having more than 25 percent foreign equity? Nah, they wouldn’t open that can of worms.

“Who knows? Maybe Murdoch is throwing in another $76 million or so of his own money somewhere for his 7,600 preferred shares; after all, he’s a billionaire. Maybe that $600 million from News Corp. will be almost all debt, with, say, $24 million in equity. That would come out below the benchmark.”

That would also have been consistent with Fox’s statements in 1985 that “there would be a total of $670 million of shareholder equity” (emphasis added), to quote from a footnote in Reyner’s February 27 brief for Fox. This number, which appeared in a widely circulated SEC registration statement that was mentioned in a November 4, 1985, FCC filing by Fox, seems hard to square with a suggestion that Reyner makes nine pages later in his brief: that the “Source of Funds” exhibit should have made it clear to the FCC “that News Corp. would be the source of all the funding for the transaction,” which would total” ‘approximately $600 million.’ “) (Emphasis in original.)

“Or maybe,” our FCC staffer might have thought, “maybe their financial wizards in New York will rig the other aspects of this $2 billion deal to keep the foreign equity below 25 percent. Who knows? That’s for Murdoch’s guys to figure out. If they wanted us to approve over 25 percent foreign equity, they’d have told us up front.”

But Murdoch’s lawyers didn’t tell them up front. Not in the 1985 application, at least. And not at all, according to a highly pregnant footnote in a 1988 opinion letter from Mickey Gardner to Fox: “There was no explicit discussion [with the FCC] of the relative contributions to capital of the holders of the [Murdoch-owned] voting preferred and the [News Corp.-owned] common stock.”

MURDOCH’S PROFESSOR FUMBLES SOME FACTS

Significantly – and unfortunately for their credibility – Professor Chirelstein, in his letter to the FCC, and Fox counsel Reyner, in his brief, did not rely on the “Source of Funds” exhibit alone for the proposition the FCC was told in 1985 that News Corp. would be supplying almost all of the equity.

Both also stressed that (in Chirelstein’s words) “[a] fair reading of the 1985 applications” showed that (among other things) “the capital funds to be received by [Fox’s holding company] on issuance of the preferred stock would not exceed the aggregate par value of the preferred shares actually issued, to wit, $760,000 (the par value of the total authorized preferred stock being only $1 million), and would therefore almost certainly constitute a very small fraction ofTHC’s aggregate equity funding.”

False.

The professor also asserted that “the annual income participation of the preferred … would be limited to $12 per share, or $91 ,200 in total for the issued shares ($120.000 for the maximum authorized shares),” with all other income going to the foreign-owned common. “Since the matter is now at issue,” he added, “I should emphasize that [these and other] conclusions … are perfectly evident on a plain reading of the 1985 applications and related documents. ”

False again.

In fact none of the numbers on which Chirelstein relied to show that Fox had told the FCC that Murdoch’s preferred stock would have only a tiny percentage of Fox’s equity appeared in Fox’s 1985 application, or in the amendments thereto, or in any other document filed with the FCC until after the FCC had approved the fox application on November 14, 1985.

Similarly misleading was Reyner’s quotation in his February 27 brief of Chirelstein’s assertion that the “1985 application and related documents” showed Murdoch contributing only $760,000 for the preferred.

(Chirelstein responded to detailed questions on this by sending me two letters, in which he wrote that “maybe I could have made myself clearer” about when the FCC got the numbers disclosing how much equity Murdoch would own, but that they were not essential to his conclusion and thaI the 1985 application “would have made it perfectly clear to me” that News Corp. was supplying all the funding, “with much or all of il going in as equity.” Both letters were appended to Fox’s March 9 reply brief, with the explanation: “Professor Chirelstein subsequently amplified on his letter in exchanges of correspondence with a reporter. In the interest of a complete record, copies of Professor Chirelstein’s letters are being provided to the commission.”)

(Reyner says: “I do not believe it was misleading, and I do not believe we implied that that … information was available to the commission before it acted. It clearly was not.”)

The bottom line is that Fox’s 1985 application neither specified in so many words that more than 25 percent (let alone 99 percent) of its equity would be foreign-owned nor disclosed enough information about News Corp.’s financing to lead even a careful reader ineluctably to that conclusion.

This may help explain a dog-that-didn’t-bark anomaly about Fox’s foreign ownership problem:

Several capable lawyers (such as Schwartzman of the Media Access Project) and groups filed objections to various aspects of the 1985 Fox application, and although Murdoch had plenty of enemies who would like to have torpedoed his Metromedia deal, nobody seized the opportunity to file a challenge based on Fox’s more-than-25-percent-foreign equity until the NAACP lawyers did so in 1993. Fox says that’s because in 1985, nobody dreamed that Fox’s foreign equity mattered. Schwartzman says nobody knew about it.

FOX’S BETTER WITNESSES

Fortunately for Fox, it has more effective (and, one imagines, less expensive) witnesses than Chirelstein: three lawyers who worked at the FCC in 1985 on the Fox application, and who have sworn in declarations for Reyner that Exhibits I and 2 to the Fox application made it clear enough that News Corp. would own most of Fox’s equity.

Most telling – especially for perspective on the unfairness of the FCC’s investigative procedure are the two successive declarations of Alan Glasser, a retired FCC staffer who had the most hands-on role in processing the 1985 application, as a subordinate of FCC lawyers Roy Stewart and Stephen Sewell.

On January 12 Glasser signed a statement for FCC investigators with a punchline almost identical to Stewart’s and Sewell’s: “At no time during the processing of the applications was I aware that News Corp. would own 99 percent of [Fox’s] equity or any perce mage above 25 percent. Had I been aware of that fact, I would not have have recommended [approval].”

But Glasser did a 180-degree turn after Fox counsel Reyner had the opportunity to show him Exhibits I and 2 to the 1985 application. In a January 31 supplemental declaration, Glasser swore: “When I provided the earlier declaration, I did not have the benefit of having the opportunity to review the applications in question …. The application clearly showed that control was to rest with Mr. Murdoch and that News Corp. would have all the equity benefits and risks in exchange for purring up all the money. I believe that this structure met the requirements in effect in 1985. Any change in the manner of News Corp.’s funding for [Fox] (e.g., debt vs. equity) would have made no material difference in this case because News Corp. would continue to receive the profits and losses ….

“It is my view that there was no deception or intent to deceive or withhold information from the commission by [Fox].” Glasser swore. Jerald Fritz, who was chairman Fowler’s chief of staff in 1985, made a similar declaration in favor of Fox, based on the same documents. So did Alan Aronowitz, who is still at the FCC.

Especially in light of Glasser’s turnaround, Fox is clearly right to complain that it should not be hammered on the basis of Stewart’s and Sewell’s cryptic, apparently unrefreshed recollections without at least getting a chance to cross-examine them – a chance that Fox (and the NAACP lawyers) have so far been denied under the FCC’s peculiar investigative procedures.

(Would Stewart and Sewell, like Glasser, come around to Fox’s point of view if Reyner had a chance to refresh their memories too? Don’t bet on it. For one thing, it was not as clear in 1985 that News Corp. was “putting up all the money” as Glasser’s-second declaration says it was.)

THE DUTY OF CANDOR

Particularly given the split among FCC lawyers as to what they knew (or could have known) – in 1985, Murdoch rang true when he told his FCC interrogators that ”I’d have to be mad” to try a bold deception on an agency with as much power over his company as the FCC, and that “we’ve got very great assets here and we sure as hell aren’t going to risk them For breaking the law.”

Nothing in Fox’s application can be called false or overtly deceptive, and it did include enough information to suggest that any careful FCC lawyer reading it should at least have wondered whether News Corp. would end up with over 25 percent of Fox’s equity, and should have asked Fox some questions to pin it down.

But precedents construing the duty of candor to the FCC suggest that an applicant who has managed to gull the agency without overt deception cannot establish its candor by showing that the agency was “as easily gulled as asses are,” to borrow from Shakespeare.

In 1986, in Kas v. Financial General Bankshares, Inc., a case involving the analogous issue of proxy disclosures, the D.C Circuit said: “A full and fair disclosure cannot be achieved through piecemeal release of subsidiary facts which if stated together might provide a sufficient statement of the ultimate fact,” at least not if there is “some conceivable danger that the reasonable (reader] would fail to realize the correlation and overall import of the various facts interspersed throughout” a document.

The question whether Fox violated its duty of candor in 1985 comes down to whether Fox or its lawyers consciously avoided telling the FCC straightforwardly that Fox would have over 25 percent foreign equity, and deliberately buried some of the facts (while delaying disclosure of the rest) from which that might have been inferred, in the hope that it would go unnoticed-as it apparently did. And the ultimate issue is whether the evidence supports an inference of intent to deceive.

While the NAACP’s Honig and Blackburne say Fox’s deceptive intent is clear, another Fox critic concedes that “I don’t see any blood on the door,” at least not in 1985. One wonders whether more telling evidence of Fox’s intent may still be secreted in the files of Fox and its law firms; their highly selective waivers of attorney-client privilege and work product protections left loopholes big enough for a few trucks to drive through.

The bottom line is that-on the existing record-it would be difficult to find convincing evidence that Fox violated its duty of candor in 1985. But that doesn’t end the matter, because some damaging documents and testimony indicate that in the ensuing years, at least, Fox, other News Corp. subsidiaries, and their lawyers were concerned that the FCC might find a violation of the foreign ownership statute if it reexamined Fox’s ownership structure, and finally figured our that News Corp. had a 99-percent-plus equity interest; they responded to this concern by taking pains to avoid any such reexamination, while continuing to assure the FCC without qualification that Fox was in compliance with the statute.

In this regard, it is “the responsibility [of] the applicant to come forth with all the information needed to keep its file accurate and complete, not on the commission to infer significant additional information from the less-than-complete information it receives,” the D.C Circuit held in WADECO, Inc. v. FCC, in 1980. The court added: “It is entirely reasonable for the commission to require that when circumstances change an applicant notify it of all the changed details, and not leave significant information, even if logically inferable, to inference.”

It was apparently not until April 1986, when Fox filed its initial ownership reports shortly after closing the Metromedia deal, that Fox gave the FCC documents from which one could infer with certainty that Fox would be over 25 percent (and over 99 percent) foreign-owned. These documents disclosed that the hundreds of millions of News Corp. dollars were coming in as equity capital, not debt, and that Murdoch’s (and Diller’s) capital contributions for their 7,600 shares of preferred stock (with its 76 percent of the vote) were only $760,000, with the fixed return set at $12 a share.

But the 1986 ownership report was hardly a model of clarity. For example, Fox did not put a number in the space provided for ”total consideration paid” by the common stockholder (News Corp.). Rather, it cross-referenced to some incomplete and outdated documents that themselves did not specifY News Corp.’s equity contribution. When questioned about this in his January 26 deposition, Thomas Herwitz, the in-house Fox lawyer who prepared the report and ushered it through the FCC staff, explained that he did not think the consideration paid in this complex deal could be reduced to a single number. He added that he had discussed the ownership forms with FCC staffers, and chat “what was paid, et cetera, was not something the commission cared about … I’d just left the commission. I know what the commission was concerned about.”

Although a close reading of the April 1986 Fox ownership report would have indicated that its equity was overwhelmingly foreign-owned, it’s unclear whether anyone at the FCC read it closely. And by that time, any FCC lawyer who suddenly pieced it all together. and realized for the first time that Fox must have more than 25 percent foreign equity, would then have had to decide whether (1) to go tell his bosses that he (and everyone else) had missed a very big problem, and that the FCC needed to get busy unscrambling a lot of eggs, which would have made chairman Fowler (among others) very unhappy, or (2) to put it out of mind.

Interestingly, the same Thomas Herwitz had just left a job as legal assistant to the same chairman. Fowler, and was in his first week on the job as Fox’s new vice-president of corporate and legal affairs.

DAMAGING DOCUMENTS

Despite the recent assertions by Murdoch. and by past and current Fox lawyers, that Fox’s foreign ownership had been fully disclosed to and approved by the FCC in 1985, and despite the fact that Fox’s Herwitz had certified its compliance with the foreign ownership statute in connection with various transactions since 1985, Herwitz found it necessary in March 1988, for reasons on which he could shed little light in his deposition, to request a formal opinion letter from Mickey Gardner.

Herwitz explained ill his deposition that he felt he needed the advice of outside counsel to know whether Fox could certify again, in connection with a pending matter, that it was in compliance with the foreign ownership statute. And Gardner found it necessary to hedge, rather saliently, his advice in his March 30, 1988, opinion letter to Herwirz that Fox “can in good faith” certify its compliance.

Citing three FCC actions in 1985 and 1986- including two declaratory rulings in June 1985 and October 1986 in a case called Wilner & Scheiner. which had been well known to Murdoch’s legal team in 1985 [see sidebar] – Gardner said that (I) News Corp.’s ownership of “greater than 25 percent of the equity capital of [Fox] … could be construed as exceeding the 25 percent benchmark” in the foreign ownership statute, and (2) in 1985, “there was no explicit discussion [with the FCC] of the relative contributions to capital” to be made by News Corp. and by Murdoch.

Herwitz, who comes across in his deposition transcript as a most incurious and forgetful fellow, testified that Gardner’s opinion letter did not cause him any concern whatsoever about Fox’s compliance with the statute, which he had certified in reliance on the letter. He explained that he disagreed with Gardner’s view that foreign capital contributions might be relevant under the statute, but had felt no need either to discuss that disagreement with the lawyer whose opinion letter he had sought or to read the authorities Gardner had cited. Herwitz dismissed Gardner’s analysis of these authorities as “immaterial sort of speculation.”

But as the NAACP’s David Honig and Laura Blackburne stress in their February 27 brief, Gardner’s 1988 opinion letter is remarkable because it “explicitly informed Fox of the materiality of relative capital contributions, told Fox that its ownership structure exceeded the benchmarks in [the foreign ownership statute]’ and informed Fox that its 1985 assignment applications had not provided the commission with all material facts.”

Two other documents that the FCC obtained from Fox, dating from 1989 and 1990, also indicate that some people on the Murdoch team were more concerned than any have ever admitted that Fox was vulnerable to challenge under the foreign ownership statute – concerned enough to take pains to deep-six suggestions for restructuring, which had been floated for the sake of simplicity or of tax savings, lest any such restructuring focus FCC attention on Fox’s vulnerability under the foreign ownership statute.

In his deposition, Herwitz initially said he could not recall any discussion, ever, of a possible restructuring of Fox’s holding company. Then he was shown an October 2, 1989. memo that he had sent to David Handelman, a vice-president of Fox’s holding company, about “the possibility of eliminating Twentieth Holdings Corporation [the holding company] or Fox Television Stations, Inc., from [Fox’s] ownership structure.” This Herwitz memo said that the “issue will come down to the stock we place in the Communications Acts’ [sic] distinction between voting stock and capital stock”; it went on to warn that the possible restructuring under consideration “may be the ‘straw that broke the camel’s back’ if it heightens concerns about” the influence of limited-voting capital stock.”

Herwitz admitted that this memo bore his handwritten initials, but swore that “I don’t recall the document at all,” and that he could recall nothing about the circumstances surrounding it. When asked to explain his memo’s discussion of “voting stock and capital stock;” Herwitz swore, ”I’m not sure I understand what this sentence means, frankly.” Nor could he recall why he would have spoken of a straw breaking a camel’s back, or of “heightened concerns.”

Still more striking is a June 5, 1990, memorandum headed “CLIENT CONFIDENTIAL,” addressed from Akin, Gump’s Gardner and James Denvir to Daniel Brennan, an in-house tax lawyer for a News Corp. subsidiary in New York, with a copy to Larry Kessler, the subsidiary’s general counsel. The memorandum followed up on a meeting in Gardner’s office the week before to discuss Brennan’s suggestions that News Corp. might be able to reap huge tax savings by making some changes in Fox’s ownership structure.

“As we have discussed,” the Akin, Gump memorandum states, “Fox TV’s ownership structure is arguably vulnerable to challenge” under the foreign ownership law, because the 1985 and 1986 Wilner & Scheiner declaratory rulings “explicitly hold that in evaluating compliance with the Communications Act restrictions on alien ownership, the relative ‘equity’ interests held by aliens must be considered as ‘capital stock.’ ” Accordingly, the memorandum suggests, News Corp.’s equity interest in Fox “may exceed [the statute’s] restriction on alien ownership of the ‘capital stock’ of a corporation controlling an FCC licensee.”

While noting that the FCC could still find Fox in compliance based on Murdoch’s control of News Corp., the 1990 memorandum warned: “Because of the uncertainty, however, of the outcome of a challenge to Fox TV’s ownership structure, we have been in agreement that it is paramount to avoid any corporate restructuring which would potentially invite reexamination of Fox TV’s ownership structure by the commission.” Any restructuring, the memorandum said, must be arranged so that it “avoids the need to obtain the prior approval of the FCC.”

In other words: If the FCC reexamines the claim that Fox complies with the foreign ownership Structure, it may find the whole thing illegal. So keep quiet, and let sleeping dogs lie.

Kessler did just that, according to his deposition testimony: He satisfied himself “that there was a theory under which everything was all right,” and saw the memorandum as “just, you know, advice not to, you know, don’t rock the boat.”

“POMPOUS LAWYERING”

So embarrassing is the 1990 Gardner-Denvir memorandum on the “candor” front that almost everyone who has ever touched it appears almost comically eager to disown it.

Fox counsel Reyner even dismissed the memorandum (in his February 27 brief) as having been “ostensibly prepared at Akin, Gump.” Was this intended to suggest that the 1990 memorandum – on Akin, Gump letterheard, and bearing names of Akin, Gump partners Gardner and Denvir – was a forgery? No, says Reyner.

Mickey Gardner, for his part, swore in his deposition that the 1990 memorandum bearing his name “is not my work product,” that “whoever drafted this memo was not as close to the real law as they should have been,” that it “is unartfully written” and “wooden,” and that it reflects “sloppy lawyering … totally inconsistent with the law.” Gardner dumped special scorn on the 1990 memorandum’s use of the phrase “it is our studied view,” which he derided as “pompous lawyering.”

Yet when the same phrase, in the same memorandum, was shown to Gardner’s former partner, James Denvir, in a February 3 deposition, the following exchange occurred:

Q: “I noticed you chuckled a little bit.”
A: “I just saw a Mickeyism.”
Q: “And what would that be?”
A: ” ‘It is our studied view.’ … I can’t say he wrote that, but that sounds like Mickey.”

Gardner, who stressed in his testimony that he was busy moving out of Akin, Gump and into his own new law offices when the 1990 memorandum was written, did say that he agreed with its advice that the Murdoch team should avoid any move than might “invite reexamination of Fox TV’s ownership structure by the commission.”

Gardner explained that this warning reflected legitimate concern about the “unpredictability of any regulatory body getting into a dogfight.” The FCC’s membership had changed since 1985, and it “arguably could have had a different view” on the foreign ownership issue. And, Gardner testified, Fox’s remarkable success in the marketplace, and its push for regulatory changes to allow it to compete with the Hollywood studios (including one of Gardner’s clients), as ‘well as the networks, had stirred up powerful enemies who would have jumped at a chance to challenge Fox on foreign ownership grounds.

In other words: We wanted to keep quiet, and let sleeping dogs lie.

Candor?

Candor “requires that an applicant inform the commission of all facts, whether requested in [FCC forms) or not, that may be of decisional significance so that the commission can make a realistic decision based on all relevant factors,” the D.C. Circuit held in 1981 in RKO General, Inc. v. FCC, the leading case on the issue. The court added that an applicant who “fails to come forward with a candid statement of relevant facts” is guilty of “a lack of candor through omission.” And in 19H5, in WHW Enterprises, Inc. v. FCC, it held that “the ‘core’ of a finding of lack of candor is an omission … [a] failure to be completely forthcoming in the provision of information which could illuminate a decisional matter.”

The remarkable thing is that the FCC’s dogs slept so soundly, and for so long. And all the while, Fox was boldly building its fourth network, and growing so big that by May 1994, when Fox finally (and grudgingly) told the FCC that its equity was 99 percent foreign-owned-Fox qualified for favorable treatment under what one veteran communications lawyer calls the FCC’s unwritten “too big to fail” doctrine.

And all the while, in annual ownership reports and in applications to renew or acquire more licenses, Herwitz and his successors were filing unqualified certifications that Fox was “in compliance” with the foreign ownership statute.

THE NAACP’S ONE-MAN BAND

Meanwhile, CBS had caught on, by the spring of 1990, to its unwelcome new competitor’s vulnerability on the foreign ownership front. According to representatives of two major networks, CBS officials quietly tried to interest both the FCC and Representative John Dingell (D-Michigan), then the all-powerful chairman of the House Commerce Committee, which oversees the agency. They shopped around a memo suggesting that Fox was illegally owned. Nobody bit.

The sleeping dogs at the FCC were finally stirred up a bit, in late 1993, by one David Honig, an FCC specialist-cum-one-man-band who is the general counsel of the NAACP’s Miami-Dade branch, and who litigates all over the country in the cause of increasing minority influence in the media.

Honig and Laura Blackburne, the general counsel of the New York State Conference of Branches of the NAACP, whom Honig deferentially calls “my senior partner,” had been litigating in 1993 (unsuccessfully, it turned out) on behalf of NAACP branches in New York City, New Jersey, and Pennsylvania against the petition by Murdoch’s News Corp. for a permanent FCC waiver of the newspaper-broadcast cross-ownership rules, so he could repurchase the failing New York Post. (Murdoch had had to divest the Post in 1988 under the terms of the FCC’s 1985 approval of Fox’s purchase of the six Merromedia stations, including New York’s WNYW-TV)

Honig had heard rumors in the communications bar for years that Fox might be vulnerable under the foreign ownership law. To check them out, he spent a couple of months digging through files at the FCC, reading case law, and working the grapevine, while his paralegal burrowed through filings at the SEC.

From the FCC, Honig got the 1985 and 1986

Fox filings about its ownership structure and News Corp. ‘s financing of the Metromedia deal. From the SEC, his paralegal got documents showing that News Corp. treated Fox as a wholly owned subsidiary, and minimized the importance of Murdoch’s 76 percent of the voting stock, at least for financial reporting purposes. And from the grapevine, Honig got a copy of a Murdoch-approved 1992 press release in which Barry Diller explained his resignation as chairman and CEO of Fox by saying that “since Fox is a wholly owned unit of News Corp.,” Diller needed to go elsewhere to pursue his ambition “to become an actual principal.”

On November 19, 1993, the NAACP’s Honig and Blackburne filed papers at the FCC stressing that News Corp.’s SEC filings showed that it owned” ‘substantially all of the equity’ ” of’ Fox, and charging that this (and other things) amounred ro a “flagrant violation” of” the foreign ownership statute. The lawyers initially made these charges to supplement their previous arguments opposing Fox’s proposed purchase of WGBS-TV In Philadelphia; when the WCBS-TV deal fell through, Honig and Blackburne filed a new petition in April 1994 making the same foreign ownership and lack of candor objection, to Fox’s petition to renew its license for WNYW-TV in New York. And ever since then, the 45year-old Honig has besieged and bedeviled Fox by spending much of his time launching salvo after salvo of paper – combining highly cogent advocacy with hyperbolic and occasionally inaccurate assertions that drive his adversaries to apoplexy – from his cramped apartment in “The Woodner,” an old-fashioned, full-service apartment building in Washington that Honig doesn’t need to leave: even to buy his daily newspapers and food.

Honig’s combined home-away-from-home and law office is jam-packed with two computers, two printers, a fax machine, mountains of documents, masses of law books, and a motley collection of wall art. Next to his bed looms a full-size office copying machine. A visit to this apartment and a passing familiarity with Honig’s late-night working habits suggest that the NAACP is getting at least a million bucks a year worth of lawyering our of Honig. Maybe two million.

But why would a group of NAACP branches care so much about an Australian company’s ownership of Fox? Because, Honig says, if Murdoch can get away with using a foreign company to buy a bunch of big television stations and start a new network, it will create pressure to relax the restrictions on foreign investment in broadcasting properties generally; foreign investors would mainly be big companies unlikely to foster minority ownership; and foreign investment would therefore threaten the goal of increasing minority ownership in broadcasting.

Fox representatives scoff at this rationale for the NAACP groups’ attacks on its licenses. They suggest that the real reason Honig and Blackburne have spent so much time and energy attacking Fox is the animus of the NAACP (and of Blackburne in particular) against Murdoch’s conservative political views, and against the coverage of racially charged issues by his news organizations, especially the New York Post. Others say that the NAACP groups pursue such litigation to gain leverage in the hope of extracting unrelated concessions from broadcasters.

Honig and Blackburne responded to such gibes in their February 27 brief by detailing their contentions about the dangers of foreign investment, and adding: “Fox has a reputation as an ultraconservative media ‘speaker’ generally opposed to minority advancement – but the NAACP couldn’t care less. Its editorial viewpoint is irrelevant here.”

A SIMPLE QUESTION

Fox’s official response to the NAACP lawyers’ initial, November 1993 attack was to assert, in a December 2, 1993, letter to the FCC from Fox counsel Reyner, of Hogan & Hartson, that “the ownership of the predominant equity interest by News Corp. [was] previously described to the commission in 1985,” and was irrelevant to its compliance with the foreign ownership statute.

Reyner had been retained by Herwirz, a former Hogan & Hartson associate, to do some of Fox’s legal work starting in 1988, and had taken over as its FCC counsel in 1990, when Fox dropped Akin, Gump and Gardner (who left in June 1990 to start his own firm), partly because of conflicts of interest with Gardner’s representation of a Hollywood client.

With Honig incessantly biting at its ankles, Fox decided to ask the FCC, in a February 3, 1994, letter from Reyner, to “address” Fox’s status under the foreign ownership law.

The FCC’s Roy Stewart followed up with a March 4, 1994, letter, which began the FCC’s foreign ownership inquiry by asking Reyner (among other things) to “please state the percentage of equity ownership that [News Corp.] or other aliens have in [Fox] as of the date of this letter.” Stewart’s restriction of his inquiry to the present equity percentage seems to suggest lack of interest in exploring what was disclosed (and not disclosed) in the past – a line of inquiry that could, and later would, prove embarrassing to a number of people, including Roy Stewart.

But Reyner’s response was transparently unresponsive: a March 21, 1994, letter that managed to go on for ten pages without ever giving a percentage. Instead, Reyner stated that “the precise dollar value of News Corp.’s equity contribution at any given time would appear immaterial.”

Reyner’s letter did not hide anything of great legal relevance, since the cat was mostly out of the bag already: In Fox’s December 1993 response to Honig, Reyner had noted that most of its equity certainly more than 25 percent – was owned by News Corp. But if not misleading, Reyner’s letter does seem curiously evasive.

(Reyner disputes this characterization, saying that he and other Fox lawyers had trouble figuring our what the FCC meant by “percentage of equity ownership,” and why it would care to know an exact percentage, or about how much above 25 percent it might be.)

Reyner’s evasiveness may help to explain why Fox finds itself in such a pickle now. FCC officials should have been mightily annoyed by Reyner’s letter. And some were, according to two communications lawyers who say they have reliable secondhand information – especially Renee Licht, Stewart’s deputy, who later ended up in charge of rhe investigation into Fox’s alleged breach of its duty of candor. (Licht cannot comment, according to an FCC spokeswoman.)

Stewart wrote back to Reyner on May 1 I, 1994, complaining that his responses “were incomplete” and asking again for the “percentage of equity ownership” held by aliens. And Reyner finally came up with the number, which he said had been obvious all along, in a May 23, 1994, response: “[The] ‘percentage’ of alien equity in [Fox] … is the indirect approximately 99 percent economic/equity interest of News Corp.”

Why did Fox and Reyner delay for two months before giving the FCC a straight answer to a straight question? Why not just say “99 percent” right away? Indeed, why nor say it in Fox’s December 1993 response to the NAACP attack? Or in 1985 or 1986?

Did Fox stall, out of fear that a forthright acknowledgment that its equity was more than 99 percent foreign-owned might generate headlines, galvanize unwelcome FCC attention, and impede Fox’s efforts to acquire interests in more stations and snatch affiliates from ABC, CBS, and NBC – some of which, in fact, began to occur just ten days after Reyner’s “99 percent” letter?

It was on June 2, 1994, that the NAACP’s lonely attack on Fox hit The Washington Post front page for the first time, complete with a quote by the FCC’s Roy Stewart that” [if] we knew that equity control in excess of [25 percent] was in the hands of aliens, we would have raised the question in 1985.”

But in the meantime, in the six months since the initial NAACP attack, Fox had been on a tear in the marketplace, challenging the three established networks more boldly than ever. In December 1993 Murdoch had stunned the media world by outbidding CBS for the television rights 10 National Football Conference games for four years, paying a very pricey $1.6 billion as a kind of loss leader to strengthen Fox’s programming and pull viewers and affiliates from ABC, CBS, and NBC. Over the next few months, Fox expanded its affiliate base from 138 stations to 184.

And on May 23, 1994, Fox announced one of its biggest coups yet: For $500 million, it would buy 20 percent of the New World Communications Group, complete with affiliation agreements with 12 television stations; Fox grabbed eight of them from CBS, three from ABC, and one from NBC. As The Washington Post put it the next day, Murdoch’s raid “promises to vastly increase Fox’s audiences, advertising revenues, and status in the next several years.”

The New World deal was announced the very day that Reyner finally sent his “99 percent” letter. Reyner says this was entirely coincidental, and denies any stalling by Fox, for any reason, in its disclosures to the FCC.

ENTER NBC-AND THE MEDIA SPOTLIGHT

The Fox foreign ownership inquiry was pretty quiet through the summer of 1994, and into the fall. There may have been ample basis for an investigation into Fox’s compliance with its duty of candor, but there was no public sign that such an investigation was in the offing. Indeed, the FCC seemed “well on the way to sweeping it under the rug last fall,” says a broadcast industry official following the ‘matter (who is not on Fox’s side), until “along comes NBC, and suddenly the commission realizes the rug would be so lumpy that it’s impossible to sweep it under the rug.”

NBC, which had been opposing Fox’s efforts to buy interests in several television stations on other grounds, jumped into the foreign ownership fight in a big way on November 30. Richard Cotton, NBC’s executive vice-president and general counsel, filed a petition asserting that Fox’s television stations were all illegally foreign-owned, demanding that all Fox station acquisitions be frozen until the foreign ownership issue was resolved, and urging the FCC to conduct a rule-making proceeding – either to force Fox to cut News Corp.’s equity interest below 25 percent, or to open the way for all other networks to seek unlimited foreign investment [“NBC’s Fighting Peacock,” The American Lawyer’s Corporate Counsel Magazine, April].

NBC’s motives for this extraordinary attack on another network seemed fairly evident: It would certainly hobble (if not destroy) NBC’s most aggressive competitor. And it might prompt the FCC (or Congress) to change the foreign ownership policy in ways that would. open’ up to foreign companies the bidding for NBC itself, which its parent, General Electric Company, had been trying to sell, but which had a depressed market value in part because of competition from Fox.

NBC’s legal attack on Fox was a win-win proposition. Except that Rupert Murdoch is not one to take such affronts lying down. He hit back in a December 5 letter to FCC chairman Reed Hundt. Attacking NBC’s allegations as lies aimed at derailing a competitor, Murdoch recalled the 1993 episode in which the NBC News Dateline program aired misleading footage of a staged explosion of a General Motors pickup, and attacked GE for an unrelated “pattern of illegal activity,” including defense procurement fraud. “If they want to slug it out with us, we’ll slug it out with them,” Murdoch told The New York Times. “Two people can play hardball.”

Although NBC brought no new evidence to bear on the FCC inquiry, its size and clout suddenly made the Fox foreign ownership fight big news. The NAACP’s Honig, who had battled Fox in obscurity for a year, appreciated having an ally, but was amused by the media’s sudden discovery of the issue. “What are we,” he says, “potted plants?”

(In the end, NBC walked away on February 17, making a separate peace with Murdoch by dropping its foreign ownership challenges to pending Fox applications at the FCC; at the same time, Murdoch agreed to carry NBC programming on his Star Television system, which delivers programs by satellite to Asia. Business is business.)

DRAMATIC MOVES AT THE FCC

Suddenly, in early December, the FCC made some dramatic moves, spurring loud complaints from Fox and Murdoch’s Republican allies in Congress that the agency was showing unseemly bias against Fox. There also were, and are, crosscutting rumors of political motivation-either to persecute Fox or make a phony show of vigilance before letting Fox off easy, depending on the rumor.

On December 5 or 6, Fox counsel William Reyner got a call at News Corp.’s New York offices from William Kennard, the FCC’s general counsel, and Licht, the deputy chief of the Mass Media Bureau. They had heard (correctly, it turned out) that Fox planned to place newspaper advertisements relating to the foreign ownership dispute and expressed concern that this could impede the FCC’s process by stirring up activity in the press and Congress.

“They urged me not to proceed with those plans, that they were very disturbing regardless of what the contents would be, that the chairman [Hundt] would not view it favorably,” Reyner recalls. “And I explained to them that I would do what I could.” Reyner took the matter to Murdoch, he says, who decided they’d better pull the ads in light of “the strength with which [the FCC’s] message was conveyed.” (Kennard denies that he or Licht mentioned Hundt; through a spokeswoman, Licht declined to comment.)

This little exercise in governmental censorship was followed by a headline-making announcement on December 7: The FCC’s inquiry into the legal issue of whether Fox’s structure violated the foreign ownership statute had suddenly become a fact-finding investigation – complete with demands for documents, notices of depositions, and the like – into whether Fox had violated its duty of candor, from 1985 until May 23, 1994, by hiding relevant facts.

The FCC also slapped Fox and the two NAACP lawyers on December 7 with a grossly overbroad gag order barring public comments about the investigation – a gag order to which NBC was not subject because it was nor formally a party. This attracted so much outrage in Congress and elsewhere that the FCC narrowed it two weeks later to a limitation on things like witnesses’ discussing their testimony with one another.

The timing of all this seemed peculiar, to say the least. No significant new information bearing on the issues had come to light (at least publicly) since May. The public escalation of the FCC’s investigation came more than six months after The Washington Post had quoted unnamed FCC officials saying they were “close to completing their review” of the Fox foreign ownership issue. And it came just days after a November 30 front-page article in The New York Times reporting NBC’s planned legal attack on Fox that day. The same article noted that the FCC “has said since May that a ruling is imminent” on the Fox foreign ownership dispute, and that it had been “widely expected in the industry that Fox would prevail,” because of the FCC’s reluctance to punish the fourth network it had so assiduously nourished for almost a decade.

FCC-watchers have advanced three theories to explain the timing of the December 7 orders. Some speculate that, in the words of an anti-Fox lawyer, “it was NBC’s turning up the heat so much, and bringing it from page eleven to page one of the newspapers; they [the FCC] could no longer afford to bury it as quietly as they wanted to. It’s still going to be a whitewash.”

Some Fox defenders, on the other hand, conjecture that the December 7 orders may have been instigated by chairman Hundt because of Clinton administration animus against Murdoch and his New York Post.

Still others, including an FCC spokeswoman, say the timing was coincidental, and had nothing to do with NBC or with politics. Chairman Hundt has indicated the same. He also assured Senate Commerce Committee chairman Larry Pressler (R-South Dakota), in a December 29 letter, that he had “not discussed any such Fox matters with anyone at the White House or with any Democrats in the House or Senate,” presumably including his old school chum and political patron, Vice-President Gore.

Be that as it may, lawyers following the matter closely express confidence that Hundt “is very much involved in what the Mass Media Bureau is doing,” in the words of an FCC staffer. It is both Hundt’s prerogative as I:CC chairman and his personal style to oversee such sensitive staff activities. And this investigation is being conducted by Licht (a career FCC lawyer), with input from Kennard (a political appointee), both of whom Hundt put in their current jobs.

The Fox foreign ownership fight had an extended run on the front pages as the tail on a much bigger journalistic dog, the avalanche of stories about House speaker Newt Gingrich’s $4.5 million hook deal with Murdoch’s HarperCollins, which was made public December 21 and inspired several weeks of intense journalism as new facts dribbled out about Murdoch’s meeting with Gingrich.

WHY MURDOCH SUSPECTS A WITCH-HUNT

While Congress and the press were fixated on the Gingrich book flap, an intriguing little drama was playing itself out in relative obscurity at the FCC. [t involved the unhappiness of veteran Democratic commissioner James Quello at what he called “the ‘star-chamber’ public impression” caused by the staff’s early handling of the Fox investigation. Quello, who noted that he was “the only commissioner present during the 1985 Fox decision,” and who is regarded by many FCC watchers as Fox’s best friend at the-agency, also seemed to imply, rather coyly, that Reed Hundt was responsible for the tone of the proceedings.

These complaints came in a January 3 letter from Quello to Senator Pressler, whose Commerce Committee oversees the FCC, and who had himself expressed “my growing distress and dissatisfaction over the highly unusual and unprecedented procedures” being used in the Fox investigation in a December 23 letter to Hundt.

Specifically, Quello complained about the FCC staff’s “extraordinary” issuance of the original December 7 gag order “under the pretext of routine delegated authority,” and without consideration by all five commissioners about the “apparent wish to avoid public scrutiny I that I may have found expression” both in the gag order and in the warning to Fox nor to run advertisements about the staff’s “unprecedented” and “most irregular” refusal to give Quello some information he had sought, even after he had gone to Hundt “stressing my wish to be fully informed of the progress of this proceeding”; and about “the impression of bias generated by” by these and other actions.

Quello also deplored “the atmosphere of suppression that has unfortunately pervaded this proceeding.” He criticized especially the FCC staff’s invocation or attorney-client privilege and FCC rules to discourage former staffers from sharing with Fox their recollections about the handling of the 1985 application. This, Quello aptly said, was no way to conduct “a dispassionate attempt … to ascertain factually what Fox represented to the commission in 1985 and what the commission did or did not understand at that time.”

Three days later, however, Quello said that all the problems had been fixed. lIe joined in a vote by all live commissioners to send Fox a letter rejecting its complaints of unfairness, and expressing confidence that the FCC staff’s “current” procedures were “fair, objective, and impartial.” In a separate press statement, Quello explained that his concerns had been mer by “the good faith efforts the staff has now taken to correct the unfortunate impression previously created”: relaxing the gag order and the claims of attorney-client privilege – both of which had been done well before Quello’s January 3 letter – and, “perhaps most importantly,” giving Quello the information he wanted.

While Quello pronounced himself satisfied, the FCC’s revised procedures still blocked Fox (and the NAACP lawyers) from questioning FCC staffers and former staffers who would not cooperate voluntarily – notably Roy Stewart and Stephen Scwell – about their recollections of what happened in 1985. At the same time, the FCC pressured Fox into a partial waiver of its own attorney-client privilege so that the FCC could take the depositions of seven lawyers who had represented Fox in 1985. In itself appropriate, this contributed to an unfairly lopsided overall fact-finding process: You show us yours, but we won’t show you ours.

If you were Rupert Murdoch, how would you like it if the decision whether the fault in all this mess lies with the FCC or with your company were to be made by … the FCC? And if the main witness against you (Roy Stewart) were a senior FCC career lawyer with his reputation on the line? And if this same lawyer had initially been in charge of the inquiry? And if, when he recused himself, he had handed the matter off to his subordinate and longtime trusted colleague Renee Licht? And if he had sworn out a cryptic declaration implicitly contradicting your own sworn testimony that you had personally told him in 1985 that Fox would be foreign-owned? And if the FCC had released his declaration without giving your lawyers a chance to question him about some highly relevant documents, which indicate that he was either asleep on the job in 1985 or lying in his sworn declaration?

Murdoch doesn’t like it, as evidenced by his January 27 deposition testimony that “I’m a donkey” if News Corp.’s planned ownership of the Metromedia stations wasn’t clear on the face of the 1985 application, and that the FCC investigation must be either an exercise in stupidity or “a witch-hunt.”

THE FCC’S BEST EXCUSE: FLAWED LAW

Giving the FCC the benefit of the doubt, the best excuse for its lame procedures in the Fox probe is that they were clumsily conceived but with an honorable intention: to explore the facts in some depth without premature resort to the FCC equivalent of a capital murder trial.

That would be sending the case to an FCC administrative law judge for a full-dress hearing into whether Fox had violated its duty of candor. The NAACP’s Honig and Blackburne have been clamoring for just such a hearing, while claiming that the evidence already establishes that Fox “has repeatedly and egregiously violated its duty of candor in this case.” They will no doubt make the same arguments on appeal to the D.C. Circuit if the FCC rules in Fox’s favor on the candor issue. The NAACP lawyers also complain that the FCC’s quasi-hearing procedures are inadequate to dig out the facts, in part because they provide no opportunity for the NAACP (or Fox) to cross-examine Murdoch and the 16 current and former Murdoch employees and lawyers whose depositions were taken by FCC staff lawyers in January and February.

The problem with a full hearing would be that, with three layers of administrative and judicial review, it could take years to play itself out, all the while casting a dark cloud over Fox’s future with the possibility of sanctions as severe as revocation of all its broadcast licenses. The mere pendency of such a proceeding could inflict severe and irreparable harm on Fox, by “putting a hold on all our acquisitions and severely hindering our ability to sign up new affiliates,” in the words of Fox executive Preston Padden.

The FCC’s dilemma in dealing with the lack-of-candor issue is this: Either it drops a bomb on Murdoch by ordering an administrative law judge hearing that would have a strong flavor of “sentence first, verdict afterward,” or it must find that Fox’ complied with its duty of candor (although hardly with flying colors).

The reason the FCC faces such an impoverished range of choices is that the antiquated Communications Act of 1934 gives the agency precious little flexibility in fitting the punishment to the crime. Based on the notion that broadcast licenses are trusteeships over public airwaves, to be operated in the public interest, the statute restricts ownership of licenses to persons and companies of good character.

That’s a formula for nightmarish tangles of litigation, especially when we’re talking about multi-billion dollar companies like Fox, CBS, Capital Cities-ABC, and GE’s NBC, with closets capacious enough to accommodate multitudes of skeletons: defense procurement frauds, staged pickup explosions, trashy programming, smarmily misleading legal briefs, and much more.

In particular, since an FCC or judicial finding that Fox has violated its duty of candor to the agency would tarnish Fox’s claim to good character, any such finding would hand loaded guns to everyone in the world who might be motivated to challenge any or all of Fox’s broadcast licenses. Even if the FCC itself considered the breach of candor relatively venial, and wanted to limit the sanction to a stiff fine, and even if Fox might in the abstract be amenable to ending the matter with some kind of SEC-like consent decree, of the “we’ll-pay-the-damned-fine-but-we-deny-wrongdoing” variety, the statute precludes any such action, which would pave the road to the courtroom for competitors and others to attack Fox’s licenses.

This helps explain why “the long institutional view at the FCC is, the big boys almost never lose,” says an anti-Fox lawyer. “You’ve essentially got to catch a licensee committing murder in the presence of an enforcement official. They [the FCC] don’t want an ad hoc restructuring of the industry.”

One result is decisions upholding the “candor” of big licensees that haven’t been very candid. Another is cynicism about the whole notion that broadcast companies (or at least big ones) have any duty to be candid with the FCC – a duty that (except in the notorious case of RKO General, Inc.) the agency seems to enforce only against small-fry.

The FCC can’t fix the statutory flaws that underlie this sorry state of affairs. Congress should.

WHY FOX’S FOREIGN OWNERSHIP IS LEGAL

Regardless of how the FCC disposes of the lack-of-candor investigation, the agency has better options in deciding whether Fox is in violation of the foreign ownership statute. It can, and should, find that Fox’s 99 percent foreign equity puts it above the stature’s 25 percent benchmark, but that Fox’s purchase of the Metromedia stations should nonetheless nave been presented and approved in 1985, and should be upheld now, on the ground that “the public interest will be served” (in the words of the statute) by approving Fox as a broadcast licensee [see sidebar].

Such a finding would be almost unprecedented, but only because the agency has bent the statute’s language and purpose over the years by treating it as a flat ban on foreign ownership (or, at least, control) of more than 25 percent of any broadcaster. It’s time for the FCC to change its interpretation. And this is a good case in which to start, because Fox’s 1985 purchase of the Metromedia stations and subsequent expansion have clearly served the public interest, in several ways:

First, Murdoch has smashed the ABC-CBS-NBC oligopoly with admirable entrepreneurial verve, bringing more competition to the network marketplace than almost anyone had dreamed possible a decade ago. He has also revived the health of dozens of weak UHF stations by signing them up as Fox affiliates, forced the other networks to compensate their own affiliates more generously to forestall defections, and created and stimulated the creation of new TV programming.

In addition, Murdoch’s almost uniquely unfettered control of News Corp., along with his 76-percent voting control of Fox, and his obvious independence of any foreign potentate, negate any danger of Fox being used as an instrument of foreign propaganda, which is the main concern underlying the foreign-ownership statute.

And that concern seems quaint and attenuated these days: Since Congress passed the Communications Act and its foreign ownership restrictions in 1934, Hitler and Stalin have passed from the scene; World War II and the Cold War have come and gone; and the unique sway of broadcasters over public opinion, has been diluted by competition from cable, satellite, and other means of transmitting news and entertainment. If Japan, Inc. can buy two big Hollywood film studios, it’s hard to see why Murdoch, Inc. (News Corp.) – an Australian company, controlled by a U.S. citizen, with over 60 percent of its assets in the U.S. – shouldn’t be able to buy a passive equity interest in a bunch of TV stations.

To update U.S. policy in this area, Republicans in Congress, including Pressler, are already pressing for legislation to repeal or relax foreign-ownership restrictions, and FCC Chairman Hundt testified on March 3 that he would welcome a move in that direction. As Hundt noted, the issues are complicated by trade reciprocity considerations, since most of the world’s other nations have foreign-ownership restrictions at least as stringent as the U.S.; in Australia, for example, News Corp. had to divest its own two TV stations when Murdoch became a U.S. citizen. But the FCC should be pushing for reciprocal (if not unilateral) liberalization of foreign ownership restrictions both because it makes policy sense and because it would level the playing field by giving other U.S. broadcasters the same access to foreign capital that Fox has enjoyed.

WHAT THE FCC WILL DO

So what will the FCC do?

The smart money in Washington is betting that – given the drastic consequences of finding that the evidence warrants a full hearing on whether Fox violated its duty of candor – chairman Hundt and his four colleagues will shrink from any such finding, and will hold their noses and find Fox candid.

It would only be natural for FCC commissioners to want to zap Fox for things like its distortions of the record, even in its briefs defending its own candor. But any who are so inclined will have to think long and hard about whether to set in motion a chain of events that could well hobble the competitive vigor of the fourth network that the FCC has taken such care to encourage. Not to mention bringing the FCC a sound thrashing at the hands of Murdoch’s friends in Congress, where Murdoch might well be able to prevent reconfirmation of any commissioner who votes against Fox.

On the foreign ownership issue, while in principle the FCC probably should find Fox in compliance with the statute, that’s not to say that it will. Indeed, the path of least resistance might be to require Fox to restructure its ownership to get News Corp.’s equity interest below 25 percent, while deferring the broader question of whether to relax the foreign ownership policy until Congress passes a new statute.

Murdoch has said he could do such a restructuring. One way would be for Murdoch personally to make a multimillion-dollar investment of equity capital in Fox, and to refinance most or all of News Corp.’s current 99 percent equity interest as debt. That might well be a taxable event, costing Murdoch, and/or News Corp., millions-perhaps even hundreds of millions-of dollars in capital gains taxes.

On the one hand, it would be kind of silly for the FCC to require such a restructuring, which would apparently have no effect on control of Fox (at least during Murdoch’s lifetime), would therefore have only an attenuated connection to any purpose served by the foreign ownership policy, and would look like a hardening of that policy at a time when it should be relaxed.

On the other hand, such a resolution might provide a serendipitous, legally plausible pretext for giving Fox a good spanking for its cavalier treatment of its duty of candor, without exposing Fox to the excessive punishment that a formal breach-of-candor hearing would inevitably entail. (This assumes that the tax liability would be big enough to sting Murdoch, Inc., but not so big as to hobble it.) It might thus approximate the effect of the kind of consent decree that the FCC might well be able to extract from Murdoch if the Communications Act weren’t such a mess.

And that might not be such a bad idea.

The post Witch-Hunt or Whitewash? appeared first on Stuart Taylor, Jr..

Witch-Hunt or Whitewash? – Sidebar

Stuart Taylor, Jr. — Mon, 17 Oct 2011 08:53:32 +0000

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.)

The statute on its face gives the FCC discretion to allow indirect foreign ownership of broadcasters above the statute’s 25 percent “benchmark” in at least some cases. It also ,suggests a presumption that (in the words of one Fox brief) the law “permits foreign ownership in excess of 25 percent unless and until the commission affirmatively finds that the public interest would be served by restricting such ownership.” ”

At the FCC, however, a page of history is worth a volume of logic. And the agency has long reversed this presumption, and has never (with one obscure exception) allowed above 25 percent foreign ownership.

While the FCC’s interpretation may well be unduly rigid, and while Fox’s 1985 application may well have warranted approval on a public interest basis (had it been presented that way, which it was not), Fox still has a problem on the duty-of-candor front if the evidence suggests it sought to hide, or even divert the FCC’s attention from, facts that the FCC would have considered relevant to the threshold issue of whether News Corp.’s equity interest in Fox exceeded the statute’s 25 percent benchmark.

The critical legal question underlying the duty-of-candor investigation thus comes down to whether it was clear to both Fox and the FCC in 1985 that, as Fox argues now, “The 25 percent benchmark in section 310(b)(4) applies only to direct ownership ‘of record’ of capital stock, not indirect, noncontrolling beneficial ownership interests or equity contributions.”

The statutory language, hi…

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.)

The statutory language, history, and FCC precedents appear on balance to cut against Fox’s contention. While the Radio Act of 1927 restricted foreign ownership based on the percentage of capital stock “voted by aliens,” the Communications Act of 1934 added restrictions on the percentage of capital stock that could be “owned of record” by aliens. (Emphases added.) This suggests a congressional purpose to count nonvoting or limited-voting equitable interests against the statutory benchmark.

The purpose of this Change seems apparent: Congress wanted to guard against any efforts to circumvent its presumptive restrictions on foreign control through arrangements in which foreign interests with under 25 percent of the voting control might nonetheless be able to exercise disproportionate influence because of their ownership of more than 25 percent of the equity.

Fox seeks to rebut this inference by quoting scraps of legislative history and judicial case law, like a statement in a 1934 Senate report that the purpose was “to guard against alien control and not the mere possibility of alien control,” which is quoted with approval in a 1958 D.C. Circuit decision, Noe v. FCC. But when read in context, these materials provide only modest support for Fox’s position.

Fox also contends that a literal reading of the words “capital stock … of record” in the statute points to the conclusion that News Corp.’s 24 percent of the total number of issued shares “of record” on the books of Fox’s holding company puts it below the 25 percent benchmark regardless of the value of those shares.

But while Murdoch’s lawyers arguably achieved what one calls “literal compliance” with the statute, by conceiving a peculiar structure in which foreign owned stock with well over 99 percent of the equity ownership represents only 24 percent of the total number of issued shares (and 24 percent of the vote), the applicability of the statute should not turn on the ingenuity of lawyers in manipulating the number and value of issued shares. Under Fox’s analysis, for example, News Corp.’s interest would clearly rise above the statute’s 25 percent benchmark if there were a 2-for-1 split of its common shares, an event that would have no other legal or business significance at all.

Whatever the intrinsic merits of Fox’s interpretation of the statute, Fox and some neutral experts also claim that in 1985, the FCC was concerned only about foreign control of broadcasters, not equity ownership. But a series of FCC actions beginning in 1985 have indicated with increasing clarity that the FCC believes that the 25 percent benchmark is exceeded (at least arguably) whenever aliens (like News Corp.) own over 25 (let alone 99) percent of the equity in a broadcaster’s holding company.

Most relevant to the lack-of-candor investigation is a declaratory ruling called Wilner & Scheiner, involving alien limited partnership interests in broadcasters, which was released on June 25, 1985, just one day after Fox had filed its application for FCC approval of the Metromedia deal, and months before Fox filed various amendments and won FCC approval.

The FCC held in Wilner & Scheiner that the equity contributions of nonvoting limited partners, unlike the interests of creditors, should be counted as “capital stock” in computing the foreign ownership percentage, even though a literal reading of the statute would limit its application to corporations. The commission held that the statute’s use of the words “capital stock … owned of record or voted by aliens” indicated that the 25 percent benchmark was “applicable to partners who hold equity or voting interests in a limited partnership” (emphasis added), because Congress intended to prevent not only “actual [foreign] control,” but also “undue alien influence in broadcasting.”

This language invites the inference that similar logic would apply in the corporate context, and thus that News Corp.’s 99 percent equity interest puts Fox far above the 25 percent benchmark.

The inference is strengthened by a January 10, 1985, letter from James McKinney, then chief of the FCC’s Mass Media Bureau, to American Colonial Broadcasting Corp. The letter stated that equity holdings by aliens in the form of nonvoting preferred stock must be counted in determining whether the foreign ownership of a corporate holding company exceeds 25 percent.

And in October 1986, in response to a petition for reconsideration of Wilner & Scheiner, the FCC confirmed its broad implications by asserting that Congress’s “adoption of an independent restriction on equity ownership by aliens in addition to one relating to voting rights indicates a specific congressional concern about substantial equity investment by aliens.” The FCC has extended this reasoning since 1986.

Fox unpersuasively dismisses Wilner & Scheiner as having no implications for cases outside the Iimited-partnership context. But as the FCC explicitly held in the second Wilner & Scheiner ruling, its earlier opinion “described the manner in which [the statute] applied to both partnership and corporate interests.” Reyner himself, while arguing that Wilner & Scheiner is bad law, acknowledges in a May 23, 1994, letter to the FCC, that it stands for the proposition that “the commission has previously concluded that indirect equity ownership by foreign individuals and entities must be included under the section 310(b)(4) benchmark.”

Fox is also unpersuasive in arguing that neither Wilner & Scheiner nor the letter to American Colonial have any relevance to corporations that (like Fox’s holding company) have only voting stock. Nor is Fox persuasive in dismissing the letter to American Colonial as irrelevant because it was only a “private, unreported nondecisional nonfinal staff letter in an unrelated case.” It was also a clear signal that the FCC staff might well find News Corp.’s equity interest in Fox to be above the 25 percent benchmark. And while Fox, citing deposition testimony, suggests that none of its lawyers were aware of the American Colonial letter in 1985, it was cited three times and paraphrased in the 1985 Wilner & Scheiner opinion, which any competent lawyer on Fox’s team should have read.

As a fallback, Fox’s lawyers argue that even if Wilner & Scheiner does have some relevance, some of the same FCC lawyers who worked on the Fox application in 1985 were contemporaneously drafting the first Wilner & Scheiner ruling, and had recently written the American Colonial letter; surely these staffers would have said something if they had seen News Corp. ‘s more-than- 25-percent equity in Fox’s holding company as posing a Wilner & Scheiner problem.

Two FCC staffers, on the other hand, have implied in their sworn declarations that they did not raise the issue because nobody told them in 1985 that more than 25 percent of Fox’s equity would be alien-owned.

Which brings us back to the question of who was told what in 1985.

The post Witch-Hunt or Whitewash? – Sidebar appeared first on Stuart Taylor, Jr..

Too Many Clients

Stuart Taylor, Jr.

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.

Since late May, when the headlines started reporting Bennett’s split with Rostenkowski, Washington’s most celebrated lawyer has suddenly become Washington’s most criticized lawyer, Washington’s most second-guessed lawyer, and-on being told that The American Lawyer had decided this would be a fine time to profile him-perhaps Washington’s most irritated lawyer.

On June 12, in Rostenkowski’s first interview on national television since his May 31 indictment on corruption charges, he implicitly (and very misleadingly) suggested that his former lawyer Bennett had failed to keep him even minimally informed about Bennett’s plea negotiations with the prosecution.

Privately, according to a friend who heard him say it, Rostenkowski has complained: "When I hired Bennett he was a pit bull. When the government said it was going to indict me, he turned into a lapdog."

The notion of the bare-knuckled Bennett as a lapdog seems preposterous to his many friends and admirers. But Rostenkowski confidants say that he thinks Bennett had become an advocate less for Rostenkowski than for the elegant plea bargain that Bennett had cut, and Bennett seemed to be trying to push Rostenkowski into taking the deal to avoid a trial so that Bennett could get on with more important business.

Rostenkowski friends, who asked that their names not be used, also accuse Bennett of subordinating the congressman’s interests to Bennett’s own ambition when he took on the Clinton representation, and of poisoning the Bennett-Rostenkowski relationship by failing to consult him in advance. They say this hurt Rostenkowski by bringing down ugly publicity about the possibility of conflicts of interest for Bennett and the Justice Department at the worst possible time for the congressman-thus possibly (if unprovably) spurring the prosecution to take a hard line to show it would not cave in to the president’s lawyer.

To this, Bennett responds: "I am very disappointed in the second-guessers and the cheap-shot artists who are tigers in their criticisms but are lambs in terms of being identified. These cases are replete with complexities, nuances, and subtleties, and unless one is on the inside in all aspects of these cases, they really should not second-guess, particularly in an anonymous fashion. I gave my client everything I had and fully complied with all of my professional and ethical obligations. I am constrained by the attorney-client relationship not to deal in specifics."

Plato Cacheris, a prominent Washington defense lawyer, dismisses the attacks more pointedly, saying that his friend Bennett had negotiated a terrific plea bargain for Rostenkowski, had kept his client fully informed, and had acted consistent with his client’s instructions and best interest. "Anybody that says Bob Bennett would sell out a client for any purpose is a false accuser," adds Cacheris.

What follows is a behind-the-scenes account of the falling-out between the Bennett and Rostenkowski. camps, based on interviews with more than 25 people who were involved in or were told by those involved about Bennett’s work for Rostenkowski and Clinton.

It shows that the trouble started because Bennett failed to tell Rostenkowski in advance about his agreement to represent the president. Rather, the congressman was stunned to learn from a radio report early in the morning on May 3- not from Bennett-that his lawyer would be handling the Clinton defense in the Paula Jones sexual harassment case.

The 54-year-old Bennett had previously given his client only a cursory notice, some weeks before May 3, that he hoped to be retained by Hillary Rodham Clinton (as Rostenkowski remembers it) in connection with some aspect of her legal problems, and would like Rostenkowski to put in a good word for him if needed. Rostenkowski had indicated that would be fine. By both sides’ accounts, Bennett never mentioned anything about defending the president against a sexual harassment claim.

Nor did Bennett discuss with Rostenkowski whether representing Clinton might hurt Rostenkowski, or whether it might be deemed inappropriate, as it later was by politicians, editorialists, and many lawyers.

The surprise news of Bennett’s agreement to defend the president caused resentment in the Rostenkowski camp that festered under the unrelenting pressure of an impending indictment, plea negotiations, and a deluge of press leaks (to which some in the Rostenkowski camp suspect Bennett contributed but which Bennett denies). Ultimately that resentment destroyed Bennett’s relationship with Rostenkowski.

GOING ON THE OFFENSIVE

The $475-an-hour Bennett, who earned roughly $1.5 million last year, clinched the media-given title of number one hired gun in America for "people in … terrible trouble" (in the words of a 1992 profile in The New York Times) in early May, when President Clinton tapped him for the Jones harassment claim.

The engagement began with typical Bennett fanfare. On May 6, the day Jones filed her lawsuit, Bennett called a press conference and eclipsed her complaint’s sordid allegations with one catchy sound bite: "tabloid trash with a legal caption on it."

Bennett’s talent as a spinmeister was one of the reasons the president hired him and his firm, Skadden, Arps, Slate, Meagher & Flom, rather than leaving his defense against Paula Jones to his tight-lipped lawyers at Williams & Connolly, who are handling the Whitewater investigation and issues involving Hillary Rodham Clinton’s miraculous success as a commodities speculator.

But by the time of the press conference on the Jones suit, Bennett’s Clinton connection had already jeopardized his relationship with Rostenkowski, according to three close friends of Rostenkowski. By May 31, three-and-a-half weeks later, when U.S. attorney Eric Holder, Jr., in Washington, D.C., announced a 17-count indictment, Bennett was no longer authorized to speak for his client. Holder’s powerful, televised statement, accusing Rostenkowski of engaging in "betrayal of the public trust for personal gain," went virtually unanswered, for days, while Rostenkowski looked for a new lawyer.

Instead of going before the cameras to counterpunch, Bennett "was hunkered down in his office, waiting to be fired," claims one lawyer involved in the case. A Bennett defender puts it differently, saying that he did not want to continue with the representation because of the lack of control of the client, who had been listening more to uninformed second-guessing by his friends than to his lawyer’s expert advice.

Finally, on June 2, Bennett and Rostenkowski-who had previously fired two other lawyers-announced a "mutual decision" to pan company. By then Bennett was smarting under a barrage of negative reviews in the press, accusing him of everything from reluctance to spend his time on a long trial to betraying his client by leaking details of their confidential consultations in which Bennett pressured Rostenkowski to plead.

"I’m always amused by the press," says Bennett, seeming not especially amused, "that they go about creating super-lawyers, and once they create them, they try to write about controversies to bring them down. But this is just the price of being in a high-profile practice in Washington, D.C."

But while the press has publicized the attacks on Bennett’s performance, it has not originated most of them. In the clubby world of Washington law, second-guessing Bennett has been the sport of the town in the weeks since he and Rostenkowski parted ways. It was ironic that one so renowned as Bennett for spinning the media should now find himself on the receiving end of so much negative spin.

"What goes around, comes around," says James Brosnahan, a partner at San Francisco’s Morrison & Foerster, who was attacked by Bennett in the press when Brosna-han was retained by independent counsel Lawrence Walsh in 1992 to prosecute Bennett’s client Weinberger.

But the nastiest barbs aimed at Bennett have come from Rostenkowski confidants, and from the congressman himself, who of course now has every incentive to dump on his former lawyer. How else could he proclaim that "I haven’t done anything wrong," and protest his innocence on all 17 "false charges," in the face of massive leaks that Bennett had almost sold Rostenkowski on a felony guilty plea including resignation and six months behind bars? How else could he hope "to wash away the mud that has been splattered upon my reputation"?

DISOWNING A PLEA BARGAIN

On June 12, on the CBS Face the Nation program, Rostenkowski disavowed virtually all knowledge of Bennett’s plea bargaining: "I was not in the negotiations with respect to any plea bargain. I don’t know whether or not my lawyer was negotiating, and what the levels of those negotiations were, what in those discussions were [sic] taking place with respect to parameters." (Emphasis added.)

The first sentence was true, albeit misleading. The second was false, based on accounts by four sources with knowledge of the plea discussions. They say that Rostenkowski met regularly during May and fully discussed the plea negotiations with Bennett, his partner Carl Rauh, and Robert Leonard of Washington’s Oldaker, Ryan & Leonard, a Rostenkowski confidant who does some legal work for him. Rostenkowski was implicitly accusing Bennett of failing to have even the most minimal consultations with him about the plea negotiations-which, of course, would be grossly unprofessional.

(Calls to Rostenkowski’s spokesman and his new lawyer, Dan Webb of Chicago’s Winston & Strawn, about the statement were not returned. Rostenkowski had earlier declined to be interviewed for this story.)

Asked about Rostenkowski’s statement, Bennett says: "I don’t think it’s appropriate to respond to that, because of the attorney-client privilege, even though he said on national television that the matter should be discussed with me." (Rostenkowski had said, "You’ll have to take that up with Bob Bennett," in response to one question about the plea discussions.)

A sampling of other flak from the Rostenkowski camp:

ï Mayor Richard Daley of Chicago, a political associate of Rostenkowski, was quoted in the June 2 Chicago Sun-Times attacking Bennett’s agreement to take on the Paula Jones case: "It’s outrageous. I’ve never heard of that before. It’s the first of its kind. He [Rostenkowski] never knew that his lawyer was taking on another client who could present a conflict." Daley also accused Bennett of leaking details of the plea bargaining to the press (which Bennett emphatically denies): "You’re not supposed to tell the public, ‘I want my guy to plead guilty.’ That is a really serious thing. It’s unbelievable. Boy, what a lawyer."

ï Former congressman Marty Russo, a Rostenkowski intimate, has told reporters that Bennett’s representation of the president was a problem for Rostenkowski because any decision by the Justice Department not to prosecute him might be viewed as a favor to the president’s lawyer. Russo also said that in plea discussions, Bennett had pressed Rostenkowski to admit things that did not happen.

Bennett’s many friends and defenders in the legal world reject such criticisms as grossly unfair. One of them, Reid Weingarten, a respected white-collar defense lawyer at Washington’s Steptoe & Johnson, says, "It’s preposterous to suggest that Bob Bennett was afraid to go to court. It’s preposterous to suggest that he sold his client out to benefit President Clinton. The only issue is whether or not he was ahead of his client in the negotiation, whether he was offering to do things that his client hadn’t approved."

"If a guy’s up to his fourth lawyer," adds another Washington litigator who (like Weingarten) has litigated against Bennett and came away liking him, "my guess is, there’s a problem with the client, not the lawyer. He’s one of these celebrity clients who’s getting a lot of advice from a lot of people, and he’s not giving his lawyer the kind of control that a lawyer needs to represent him effectively."

Rostenkowski’s new lawyer, Dan Webb, says that he knows and has "great professional respect" for Bennett and his partner Carl Rauh, and would "never … join any criticism of them." Webb insists that Rostenkowski is not personally … doing anything to attack Bob Bennett or ask others to attack Bob Bennett."

Rosty, as most people call him, fired his first two lawyers in late July 1993, when he was being savaged by headlines identifying him as an alleged recipient of embezzled cash from House postmaster Robert Rota, who pled guilty and turned state’s evidence.

The fired lawyers were Stanley Brand of D.C.’s Brand & Lowell, a former House of Representatives counsel with expertise on congressional rules and processes, and Judah Best, a partner in the D.C. office of New York’s Debevoise & Plimpton, who negotiated the plea bargain that enabled Spiro Agnew to escape prison by resigning the vice-presidency in disgrace.

Brand and Best were both known primarily as negotiators, not courtroom gladiators. Brand did not have the kind of access at the U.S. attorney’s office that some criminal defense specialists do, and Best and Rostenkowski never really hit it off, according to friends of .Rostenkowski. Rostenkowski and his supporters wanted someone who would attack the prosecutors more aggressively, both about the many damaging leaks about the investigation and charges that had been spilling out for months and about the weakness of those charges.

So the word went out that Rostenkowski wanted a gunfighter who could beat the government to the draw at very step-from press conference to trial.

On July 23, 1993, while Bennett was at a college orientation in Boston with one of his three daughters, the call came from a friend of Rostenkowski. By that night Bennett was back in Washington, meeting with the congressman. By midnight he was on the case. And the next lay, Bennett took his new client on the offensive. Flanked by Bennett and his partner Rauh at a Capitol Hill press conference on July 24, Rostenkowski proclaimed his innocence and vowed to fight.

The beefy Chicago ward boss and the Flatbush boxer-turned-litigator hit it off immediately, says a source close o Rostenkowski. For his part, Bennett was heard to remark: "At last, here’s a guy I can eat red meat with." It seemed a perfect fit: Two regular guys, tough, no-non-sense, down-to-earth, big-hearted.

"Bennett is a tough trial lawyer who’s not going to make a deal," a Rostenkowski friend toldTime magazine.

But one source close to the defense team says it was always understood that if the government was determined to indict, the option of pursuing some kind of plea bargain should be explored. And the landscape was changing.

Instead of the indictment that had been forecast for October, that month brought the appointment of a new U.S. attorney, Holder, a respected D.C. superior court judge who had spent 12 years prosecuting corruption cases in the Justice Department’s public integrity section.

Holder came into the job in the wake of President Clinton’s decision early in 1993 to fire all 93 U.S. attorneys across the nation. At the time, Jay Stephens, Holler’s Bush-appointed predecessor, had accused the president of trying to derail the case that Stephens’s assistants lad been building against Rostenkowski, whose indictment could be fatal to the president’s ambitious health; are proposals. Thus Holder knew-long before Bob Bennett was retained by the president-that his every move in the Rostenkowski case would be watched by Re-publicans eager to cry that the fix was in.

Holder’s first move was to broaden the investigation of Rostenkowski. He thought the case he had inherited needed shoring up, according to two sources involved in the investigation. The key witness, House postmaster Rota, was trying to save his skin by pointing fingers, had changed his story several times, and could be torn to pieces by a lawyer with Bennett’s cross-examination skills.

What had started as a relatively narrow investigation into the alleged scheme to disguise cash payments as postage stamp purchases at the House Post Office had already broadened, spurred by reports in the Chicago Sun-Times that Rostenkowski had put ghost employees on the congressional payroll and used taxpayer funds to acquire ownership of three cars. Holder stepped up the probe on these fronts.

Meanwhile, Rostenkowski had a primary election to worry about in February. He had considered retiring, but felt that prosecutors would be less likely to pursue a weak case so long as he was still a sitting congressman, and he was worried that he wouldn’t be able to raise the money for his defense if he left office. President Clinton showed solidarity with his most important legislative ally- notwithsta…

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."

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.

Since late May, when the headlines started reporting Bennett’s split with Rostenkowski, Washington’s most celebrated lawyer has suddenly become Washington’s most criticized lawyer, Washington’s most second-guessed lawyer, and-on being told that The American Lawyer had decided this would be a fine time to profile him-perhaps Washington’s most irritated lawyer.

GOING ON THE OFFENSIVE

The $475-an-hour Bennett, who earned roughly $1.5 million last year, clinched the media-given title of number one hired gun in America for "people in … terrible trouble" (in the words of a 1992 profile in The New York Times) in early May, when President Clinton tapped him for the Jones harassment claim.

DISOWNING A PLEA BARGAIN

On June 12, on the CBS Face the Nation program, Rostenkowski disavowed virtually all knowledge of Bennett’s plea bargaining: "I was not in the negotiations with respect to any plea bargain. I don’t know whether or not my lawyer was negotiating, and what the levels of those negotiations were, what in those discussions were [sic] taking place with respect to parameters." (Emphasis added.)

A sampling of other flak from the Rostenkowski camp:

ï Mayor Richard Daley of Chicago, a political associate of Rostenkowski, was quoted in the June 2 Chicago Sun-Times attacking Bennett’s agreement to take on the Paula Jones case: "It’s outrageous. I’ve never heard of that before. It’s the first of its kind. He [Rostenkowski] never knew that his lawyer was taking on another client who could present a conflict." Daley also accused Bennett of leaking details of the plea bargaining to the press (which Bennett emphatically denies): "You’re not supposed to tell the public, ‘I want my guy to plead guilty.’ That is a really serious thing. It’s unbelievable. Boy, what a lawyer."

So the word went out that Rostenkowski wanted a gunfighter who could beat the government to the draw at very step-from press conference to trial.

"Bennett is a tough trial lawyer who’s not going to make a deal," a Rostenkowski friend toldTime magazine.

What had started as a relatively narrow investigation into the alleged scheme to disguise cash payments as postage stamp purchases at the House Post Office had already broadened, spurred by reports in the Chicago Sun-Times that Rostenkowski had put ghost employees on the congressional payroll and used taxpayer funds to acquire ownership of three cars. Holder stepped up the probe on these fronts.

By the beginning of this year, the Skadden team were pressing to learn what the government had and to build a defense, meeting with the prosecution team and filing de ailed written submissions challenging the factual and legal bases for the allegations. Bennett got the prosecution to narrow its case in some respects: The government dropped charges concerning Rostenkowski’s use of congressional funds to lease apartments, according to four lawyers close to the case.

"Bennett seemed to be planning to fight to the death," says a Rostenkowski friend. "He was making all the right moves."

THE PRESIDENT’S NEW LAWYER

Meanwhile, Bennett’s talents had also been noticed at the White House. Harold Ickes, the deputy chief of staff, had hired Bennett and Skadden to help him get through his grand jury testimony in connection with independent counsel Robert Fiske, Jr.’s investigation into questionable contacts between White House officials and regulatory agencies looking into Whitewater-related issues.

Ickes suggested to the Clintons that they consult Bennett, according to White House special counsel Lloyd Cutler, and in one or more conversations in March or April Bennett discussed generally with one or both Clintons his views on how to handle their mounting legal problems, including any congressional hearings on Whitewater. There was no discussion at first of Paula Jones, who "was just a cloud in the sky" then, recalls Cutler. (It was these discussions that Bennett had mentioned to Rostenkowski, according to a source close to the matter.

At the time, according to two administration sources, there was grumbling by some Clinton aides that Williams & Connolly’s David Kendall-who heads the team representing the Clintons with respect to the Whitewater investigation and the commodities trades-was merely a lawyer’s lawyer at a time when the Clintons needed someone who could help with spin control, too, as the Clintons were clobbered in the media about Whitewater and the commodities trades. "He may be a superb lawyer; he has not done a good job on the public relations front," says one of the administration sources.

Lloyd Cutler dismisses the notion that the White House was dissatisfied with Williams & Connolly and says that the Clintons have great confidence in Kendall. But he says, "David was fully engaged and … you needed at least in my judgment a different personality" to handle the sensationalistic Paula Jones lawsuit.

Noting Bennett’s "particularly good press instincts," Cutler says that he recommended him to the president because "it just seemed to me to be a good fit."

Bennett makes no bones about his view of the media as a forum for legal advocacy: "When you are dealing with a Clifford or a Weinberger, your case and your client are in the press, and … it’s important for their own reputations that they have their day in the press court," he says. "The press places unbelievable faith in the allegations made by law enforcement people, so advocacy must not only be in the courtroom but also in the court of public opinion."

In the end, the president thus needed three legal teams. As The Economist, the highbrow British magazine, explained it: "Mr. Kendall is the president’s private lawyer, Mr. Cutler is the lawyer for the presidency, and Mr. Bennett is the lawyer for the president’s penis."

MEDIA MASTERY, MEDIA MAGNETISM

While the White House sought out Bennett precisely because of his media talents-which he displayed at his debut press conference with his "tabloid trash" line-the incremental publicity generated by Bennett’s fame was not especially good for either Clinton or Rostenkowski.

The mainstream press had previously been gun-shy about reporting Paula Jones’s allegations, which she had first made at a February 11 session sponsored by the Conservative Political Action Conference. But now The Washington Post, which had bottled up for months reporter Michael Isikoff’s long article detailing Jones’s allegations and related evidence, finally published it on May 4-to gether with a long article about Clinton’s hiring Bennett to defend against Jones.

The filing of the Jones suit on May 6 would have been a major news event no matter who was representing the president. Still, some lawyers think that Bennett’s prominence brought more attention to the Paula Jones story than there would have been if the case had been sent to some unknown lawyer in Arkansas.

"It would have been a good one for a legal services lady from Texarkana-give it to her and smother it in silence," rather than giving it to a man noted for "dealing with terminal criminal tumors," says Leonard Garment, who was counsel to President Richard Nixon and is a friend and admirer of Bennett’s. (Garment is also a regular in a monthly poker game that includes Bennett, his brother William-the former Bush drug czar-Chief Justice William Rehnquist, Justice Antonin Scalia, and others.)

Lloyd Cutler disagrees. "I have heard that argument," he says. "It is total baloney. There was no way of keeping this from being the hottest press story around."

EMPTY DISCLOSURE

However content the White House may have been with the president’s new lawyer, at least three people in the Rostenkowski camp say they were boiling mad when they heard the news.

First, there was concern that the Clinton engagement might hurt Rostenkowski: It might put conflicting demands on Bennett’s time, and it might generate bad publicity (as it did) about the seeming incestuousness of the president’s lawyer negotiating with the president’s appointees at the Justice Department on behalf of the president’s political ally Rostenkowski. That, in turn, might increase the already enormous political pressure on U.S. attorney Holder to indict Rostenkowski, and foreclose any chance Bennett might have of going over Holder’s head.

Second, there was the fact that Rostenkowski had learned from the radio about Bennett’s representing the president, when he got up at dawn in Chicago on May 3 to catch an early flight back to Washington, according to a Rostenkowski friend.

In a story where much is disputed, there is relatively little dispute about the cursory nature of the one prior conversation that Bennett had with Rostenkowski about the possibility of a Clinton engagement. According to a Rostenkowski confidant, Rostenkowski recalls Bennett saying something like, "You may get a call from Hillary or someone representing her on the commodity trade issue. If you do, I hope you put in a good word for me." Rostenkowski was agreeable.

"There may have been some reference to possible representation on commodity trade issues, certainly no discussion of possible representation of the president on this Paula Jones issue," says the Rostenkowski confidant.

A source more friendly to Bennett counters, saying that the discussion wasn’t limited to Hillary or commodities, and that Bennett had told Rostenkowski that he hoped to end up representing the President or the First Lady or both, as part of the Whitewater team. But even this source doesn’t contend that the Jones case was ever mentioned, pointing out that the conversation took place before Bennett had ever been consulted about Jones.

Thus both sides agree that Bennett neither initiated nor invited any advance consultation with Rostenkowski (a nonlawyer) as to whether, with Clinton-appointed U.S. attorney Holder moving toward a decision on whether to indict, anyone might question whether Rostenkowski should be represented by the same lawyer as the president.

"There was certainly no discussion where there was any elaboration or any amplification of possible conflicts vis-a-vis the president, vis-a-vis discussions or possible discussions with Eric Holder," one Rostenkowski confidant says. "It was certainly cursory at best…. From the congressman’s standpoint, he does not feel there was adequate discussion of potential conflicts."

Many lawyers and others later did question the propriety of the Bennett-Clinton-Rostenkowski triangle, after the May 3 announcement that Bennett was taking on the Paula Jones defense.

One who did so privately was Eric Holder. According 5 to one source involved in the investigation and another who followed it closely, Holder expressed concern that he might be put in an awkward position by this new wrinkle in a case that already carried enormous political baggage. Among other things, Holder said, there might be political flak and bad publicity about the web of connections among Clinton and Rostenkowski, Clinton and Holder, and-now-the Rostenkowski-Bennett-Clinton-Holder rectangle.

"Eric viewed it as an irritation," adds one of these sources, who stresses (as does Bennett) that it had no effect on Holder’s approach to the Rostenkowski case. (Holder won’t comment.)

Holder was right about the political flak and bad publicity. House minority whip Newt Gingrich (R-Georgia) later said: "The spectacle of the president’s lawyer negotiating with the president’s Justice Department on behalf of the president’s health care spokesman has got to say to most Americans everything that’s wrong with Washington." Editorialists for The New York Times and The Washington Post used "incestuous" to describe what the Times called "the potential conflicts of interest" in the Ros-tenkowski-Bennett-Clinton-Holder connections.

Bennett-without contradicting the Rostenkowski friend’s account of his cursory consultation with his client before agreeing to represent the president-says that there was "absolutely no conflict," and that "appropriate disclosures were made" to Rostenkowski, but that "because of the privilege I can’t get into the nature and extent of those discussions."

SEEDS OF MISTRUST

When the news broke on May 3 that Bennett was representing the president in the Paula Jones suit, says former congressman Marty Russo of Chicago, a Rostenkowski intimate, "I called the chairman to say, ‘Why’d you let him [Bennett] do this?’ His response was that ‘Bennett never talked to me about it.’"

Another friend says Rostenkowski was "stunned" when he heard the news on the radio, if only because it came as such a surprise. This source says that the news "sowed seeds of mistrust" in the Rostenkowski camp, although some of the congressman’s friends-especially the lawyers among them-came to the conclusion more quickly than he himself did that he might be hurt by the Clinton engagement.

By mid-May, two of his friends say, Rostenkowski had a strong sense that Bennett’s connection to Clinton was bad for Rostenkowski, and it colored his relations with Bennett as other developments caused him to question whether fighting hard for Rostenkowski was still the lawyer’s top priority.

There is a dispute about whether Rostenkowski ever voiced any concern about the Clinton engagement to Bennett. Two Rostenkowski friends say that he did so repeatedly, albeit not in a confrontational manner, beginning with a phone conversation between the two men within three days after the Bennett-Clinton news broke on May 3. One of these sources gives the following account of the conversation:

"Rosty, puzzled by Bennett’s decision to take on this representation, asked Bennett, ‘How will this affect me?’" In responding, Bennett said he had told Rostenkowski that he might represent the president. Rostenkowski disputed this, saying that only Hillary, not the president, had been mentioned, and only as a possibility. Rostenkowski ended the conversation feeling uneasy and dissatisfied with the situation and Bennett’s responses.

In later discussions, according to one Rostenkowski friend, "it became increasingly clear to everyone, as these meetings [between Bennett, Rostenkowski, Rauh, and others regarding the plea discussions] became more frequent and more emotional, that the relationship between Bennett and Rostenkowski had deteriorated … and Carl [Rauh], being very uncomfortable with that, wanted to get the [Clinton] issue on the table for discussion, and there was some emotional discussion. I think that Rostenkowski was expressing a lot of concerns that he felt, and a lot of concerns that he had heard from friends and associates. [And] they [Bennett and Rauh] kept saying that they wanted him to be comfortable; they used that word a lot. The congressman never became comfortable. He continued to express discomfort."

Moreover, this source adds: "Bob said that he felt [Bennett’s retention by Clinton] would be helpful…. The congressman let the comment pass because he didn’t see how it would help him at all."

A Bennett defender gives a different account, saying that Rostenkowski had never, at any time, indicated to Bennett any displeasure about Bennett’s representation of the president. This source says that when Rauh had asked at one meeting (in Bennett’s presence) whether Rostenkowski really had a problem with the Clinton representation, Rostenkowski’s answer had been no, and that that had just been some talk by one of his friends. The lawyers then explained why they saw no conflict, and Rostenkowski agreed.

Bennett defenders also say that the stories corning out of the Rostenkowski camp now are revisionist history, and are part of a concerted effort by some in that camp to distance Rostenkowski from the plea negotiations by painting Bennett as a traitor pursuing his own agenda

TENSE TIMES FOR ATTORNEY AND CLIENT

The tensions in the Rostenkowski camp over Bennett’s new client, the president, could hardly have come at a more stressful time in the Bennett-Rostenkowski relationship. For on Friday, May 6-the same day as Bennett’s Paula Jones press conference-The Washington Post reported that Holder had sent a memo to the Justice Department’s criminal division concluding that Rostenkowski should be indicted and detailing the charges. Bennett began to explore in earnest a possible plea bargain either that day or the following week.

Plea bargaining puts great strain on the attorney-client relationship in any case. "You are often the messenger of the prosecutor’s theory and the prosecutor’s views of the defendant and what he or she did," explains E. Lawrence Barcella, Jr., a former federal prosecutor and leading Washington white-collar specialist. "It’s very emotional for a lot of clients to be confronted with that view and what it’s going to cost you."

In this case, there were tense meetings including Bennett, his partner Rauh, their colleague Edward Ross, Jr., Rostenkowski, and Robert Leonard about whether to cop a plea. And beginning May 19, there were massive leaks to the press, from unknown sources, about Bennett’s negotiation of a tentative plea bargain with prosecutors; about Bennett’s efforts (ultimately unsuccessful) to sell it to his client; and about the details of the proposed plea and what a great deal it would be for Rostenkowski: a felony guilty plea, six months in jail, resignation, a fine, and the assurance that his aides would not be prosecuted for any testimony the government disbelieved.

As a balmy month of May unfolded in Washington, Bennett’s relationship with Rostenkowski soured. It did not help (according to two sources close to Rostenkowski) that Rauh, whose relationship with the congressman remained more friendly, was in Europe on business for some time in early May.

Nor, says one of these sources, did it help that going into the plea discussions, "the congressman was told rather consistently, including by the Skadden team, that this was a weak case…. The congressman heard a lot about how there were indications, back channel indications, that Eric Holder was uncomfortable with the case, uncomfortable with his trial team." And he hoped that his lawyers might convince Holder that no criminal prosecution should be brought, that perhaps some matters could be referred to the House ethics committee, but that this was not a solid criminal case.

Then, recalls this source, "all of a sudden we’re talking about a plea which involves resignation, which involves six months [behind bars]. It was a huge leap."

Another source says that the whole concept of a plea ran counter to Rostenkowski’s nature. "Rosty is not a person who is likely to back out of a fight," says this source. "He wants to take his reputation as a stand-up guy to the grave with him, and he would have lost that if he had taken the plea. It was a lack of respect-Bennett treating him like any other defendant, negotiating the best deal he can for him and trying to push him into it."

BARGAINING BY PHONE

The plea bargain discussions between Bennett and Holder got into gear on the telephone about May 6, and continued for ten days to two weeks. One purpose of this unusual, one-on-one phone discussion was to avoid public disclosure, according to a knowledgeable source. Some on the defense team also thought the talks would go better without a room full of people.

But Rostenkowski-who in his capacity as a legislative baron considers himself to be a master negotiator- did not like this approach to discussions with Holder and told Bennett that, according to two lawyers familiar with his discussions with Bennett.

"He felt uncomfortable with telephone discussions rather than eyeball to eyeball, [where] you can read a person not only by what he says over the telephone but by body language and so forth," recalls one of these lawyers.

This source adds: "The negotiations themselves, in terms of the lengths to which Bob Bennett took them, far exceeded the congressman’s expectations."

Later, after Rauh’s return from Europe, the plea bargaining sessions moved to a conference room at the Justice Department’s public integrity section, where the opposing teams of prosecutors and defense lawyers met en masse. But by then, according to one lawyer in the Rostenkowski camp, the terms of the deal were already congealing.

And whatever the reason, there is such a residue of ill will in the Rostenkowski camp toward Bennett that almost every move he made during the month of May has come under anonymous attack (including by people who were interviewed and cross-examined for many hours for this article), amid dark theorizing as to his motives to push Rostenkowski into a bad plea bargain that the congressman’s friends say he never wanted.

For example, while a Bennett defender says that everything Bennett did was fully authorized by Rostenkowski, and while a Rostenkowski friend acknowledges that "Rostenkowski authorized Bob to explore the options, to see what kind of deal Eric Holder had in mind," another Rostenkowski friend says the congressman, as a nonlawyer, did not really understand what was going on: He was not told specifically enough at the outset that a plea bargain would mean he would have to admit he had done something criminal, and he wanted his lawyers to be fighting rather than focusing on what kind of deal they could make. "Bennett is talking plea and Rostenkowski is saying, ‘You guys have got to stop talking on the phone and get in there and fight for me,’" this source recalls.

Another Rostenkowski friend recalls that Rostenkowski "wanted Bob Bennett to be his advocate, and I think he feels there was some reverse advocacy here, where Bennett became an advocate for the deal. And I think that was a core problem with the relationship."

Bennett defenders dispute all this, saying that until late in the game, Rostenkowski seemed comfortable with the terms Bennett was negotiating with Holder.

The reason some Rostenkowski friends have such animus against Bennett, suggest Bennett’s defenders, is that Rostenkowski has been misleading the friends, lest they discover something that he was too ashamed ever to admit even to his own wife: that he was on the verge of copping a plea and admitting guilt.

Bennett defender also suggests that the views of some Bennett critics may be skewed by economic self-interest because their jobs-and in some cases their value in the lobbying marketplace-depend on Rostenkowski’s continuance in office, and therefore on rejection of the plea bargain.

BENNETT CANCELS A MEETING

Another irritant for Rostenkowski’s side was Bennett’s decision not to go to the Main Justice Department to attack the draft indictment prepared by Holder’s office-a decision that fed doubts among Rostenkowski’s allies that Bennett was giving the case his all.

As is routine in such cases, Bennett had notified Holder’s office long beforehand that he wanted the option of going up the Justice chain of command if Holder’s office decided to prosecute. Shortly after Holder had informed Bennett that his office was prepared to go forward with the indictment, such a meeting was scheduled-at the initiative of one of Holder’s assistants-for May 16, between Bennett and his partner Rauh on the one side and Jack Keeney, the senior career person in the Justice Department’s criminal division, and his politically appointed boss, Jo Ann Harris, on the other.

But then Bennett abruptly canceled the meeting, offering no explanation, according to a Main Justice source. The move puzzled some in the Rostenkowski camp. "Why did they tell Rosty right from the beginning that they were going to fight this thing all the way to the top for him, meaning to the attorney general?" asks a Rostenkowski associate close to the investigation.

Why, this source and others wonder, did Bennett pass up a chance-albeit a long shot-to knock off all or part of the proposed indictment by getting Holder’s office overruled? "It’s one of those ‘why the hell not, what have you got to lose’ issues," says a lawyer close to the case.

Perhaps, suggests a Rostenkowski sympathizer-as does one government lawyer-Bennett feared that critics would exploit his role as the president’s lawyer to cry that the fix was in.

Bennett scoffs at such talk, saying that any political sensitivities about the Rostenkowski case would be attributable to the congressman’s role as a vital political asset to the president, for whom the president had recently campaigned, and to Holder’s role as a Clinton appointee-not to the identity of the congressman’s lawyer.

Bennett defender also stresses that a meeting at Main Justice could not have made things better for Rostenkowski and might have made things worse. This source says that it had become apparent that Holder, with whom Bennett was involved in delicate discussions, was Rostenkowski’s best hope for a reasonable plea bargain, and that going to trial would be a very big risk. And if Main Justice were brought in before Holder’s position had gelled, there was some risk that Reno might push Holder toward a tougher stance.

Rostenkowski and Bennett were "scared to death of Janet Reno," says a Bennett defender. "She wants to look like the independent queen of Justice," this source says. Bennett thought Holder would render "a less political judgment" than Main Justice and "wouldn’t feel Rosty was an evil guy."

Another complaint-voiced by three sources close to Rostenkowski, one of whom says a prosecutor expressed similar views-is that Bennett was not aggressive enough in May in trying to get a copy of the draft indictment and to attack its substantial legal and factual weaknesses point by point. This would have helped both in getting more leverage in plea discussions and in seeking to narrow the indictment that would be returned if the discussions failed. One of these sources complains that Bennett went into "disposition mode" right from the start, adding that one of the prosecutors had expressed surprise at this.

For example, these sources note, eight of the original 18 suspected ghost employees had worked for Rostenkowski so long ago that their alleged wrongdoing arguably fell beyond the statute of limitations. Yet Bennett did not vigorously press this argument with the prosecution, according to three informed sources. James Cole, of counsel in the D.C. office of Cleveland’s Squire, Sanders & Dempsey, who represented several of the alleged ghost employees, got four of them excluded from the final indictment by advancing both the statute of limitations argument and evidentiary claims. This reduced the amount of money Rostenkowski was charged with misappropriating by more than $100,000.

This line of attack on Bennett is emphatically dismissed as all wrong, however, by a government lawyer. "Bennett was very vigorous and detailed in his raising defenses on behalf of Rostenkowski" at every stage of the investigation, this lawyer says.

A CASCADE OF LEAKS

The plea negotiations may have been tense, but at least up to May 19 they were secret. That morning, however, The New York Times led its front page with a report by David Johnston that Rostenkowski’s lawyers were seeking to negotiate a plea bargain. This was the first in what became a cascade of leaks about the plea discussions over the next two weeks.

Although Mayor Daley and many others have assumed-perhaps because of Bennett’s reputation as a press schmoozer-that these leaks must have come from him, Bennett and his partner Carl Rauh vehemently deny this. Rauh says that "I’m absolutely convinced that the Justice Department was leaking it." Two lawyers in the Rostenkowski camp say they suspect that government officials started the leaking, but that Bennett then joined in, for his own purposes.

While it’s impossible to be sure, history (including that of the Rostenkowski probe), common sense, and one aspect of Johnston’s story suggest that the initial leak probably came from the government. The Justice Department, with its trial-hungry assistant U.S. attorneys, its Main Justice press kibitzers, and especially its loose-lipped FBI agents (some of the most notorious leakers in town), has long been the most prolific source of leaks detrimental to targets of criminal investigations. There were copious damaging leaks about Rostenkowski long before Bennett was on the case.

In addition, Johnston’s May 19 article reported that "some prosecutors, along with federal agents who worked on the case, are resisting any settlement." Therein lies a possible motive for leaking: One of the best ways lo derail a sensitive negotiation is to blow the secrecy surrounding it. It’s hard to imagine why Bob Bennett would have wanted to do that. It’s not so hard to imagine why an FBI agent or a prosecutor anxious to put Rostenkowski on trial might.

Later-after Bennett had had some tense, sometimes angry meetings with Rostenkowski over the proposed deal he had worked out-it began to leak that Bennett was recommending a plea bargain lo Rostenkowski that included a felony guilty plea, resignation from Congress, and six months behind bars.

Those who suspect Bennett of these leaks theorize that he was trying publicly to pressure his client into the deal. But that presupposes monstrous perfidy on the part of Bennett, who is described by many acquaintances as a lawyer with a healthy sense of ethics. Other possible suspects include government officials and talkative Rostenkowski friends with whom the congressman consulted about the advice Bennett was giving him.

hatever the original source, a lawyer close to the Rostenkowski camp complains, "we were shocked by Bennett’s lack of attention to the harm these leaks were causing his client. His client’s getting killed, and there was no formal complaint to the [Main] Justice Depart- ment…. There was no effort to deny to the press that the stories were accurate, and some were not."

Bennett dismisses this as nonsense, asserting that "we did complain to Holder, who was equally concerned about the leaks, and who we felt could have much more control over the situation [than Main Justice], and we requested that there be an investigation," and that the leaks be stopped.

ROSTENKOWSKI WON’T PLEAD

In late May, Bennett and Rauh held a series of tense meetings with Rostenkowski, which ended with him rejecting the deal. Accounts of these meetings, as of virtually everything else in this representation, agree on some key points but differ dramatically on others.

Both accounts have Bennett raising his voice and talking much tougher to his client than Rostenkowski is accustomed to. One account has Bennett and Rauh warning him that he faces over five years in prison if he is convicted-pushing, pushing, pushing Rostenkowski into a deal that he repeatedly says he doesn’t want, because he thinks he has done nothing wrong. Another account has Rostenkowski readily agreeing to resign and to do six months in prison and then inexplicably balking in late May by nitpicking about details that seemed inconsequential to Bennett, such as what the government would say about Rostenkowski in the papers filed with the plea.

By May 30, when Rostenkowski had made a final decision to fight, not plead, stories had begun to appear about severe strains developing in Bennett’s relationship with Rostenkowski. In any event, the leaks of the plea discussions would have given Rostenkowski a strong incentive, after they failed, to rehabilitate his presumption of innocence by dumping the lawyer whom the whole world now knew to have recommended the deal.

"Bennett wanted him to take this deal more than Joe Isuzu wanted you to buy a car," says one Rostenkowski friend.

"Bennett was insistent that he felt that the deal that he was negotiating was the best deal that the congressman could get," recalls another Rostenkowski friend with detailed knowledge of these discussions. "He was quite emphatic about that. There were elements of the deal that the congressman was uncomfortable with…. Bob became increasingly aggressive, increasingly intense as time went on here…. There was certainly display of emotion on several occasions on both his part and the congressman’s part, anger expressed both ways-quickly retrieved but nevertheless expressed….

"Bob Bennett clearly wanted to dispose of the case. Bennett would on occasion say that he felt it was a very triable case, a very winnable case, but his actions were certainly oriented toward a disposition rather than a trial resolution."

The Clinton representation was "the most critical event that contributed to the deterioration of the relationship," but, he adds, it "was two old bulls in different professions, but in many respects cut from the same cloth- two very strong people." And, this source concludes, Bennett "never got to know his client as a man."

ROSTY FACES A BROAD INDICTMENT

On May 31 Holder announced the broad, 17-count felony indictment, charging Rostenkowski with stealing money from the government by buying gifts for friends with official funds, by misappropriating over $500,000 over two decades to pay "ghost employees" who did little or no official work, and by embezzling money from the House post office in the guise of buying stamps, and with witness-tampering by asking an associate to withhold information from the grand jury.

With Bennett on his way out, the silence from the congressman’s corner that day was deafening.

And on June 6-when Bennett and Skadden scarcely needed any new embarrassment-there appeared in the Chicago Sun-Times (and all that day on Chicago television and later in other publications) photos that had been taken at Skadden’s behest of some of the hand-painted wooden armchairs and crystal vases that Rostenkowski allegedly had bought with taxpayer funds from the House stationery store to give to friends and use himself. They were photographed in the basement of an apartment building owned by the congressman’s family.

Adding insult to injury, the photographer-hired by another Skadden lawyer on the recommendation of the Rostenkowski organization-told the Sun-Times: "I couldn’t believe it. It was like King Tut’s Tomb." The photos were taken for possible use at trial to rebut the prosecution’s claims that Rostenkowski had given the stuff away to friends; the defense planned to argue that Rostenkowski had intended to use it for lawful purposes.

According to a Rostenkowski friend, the day the pictures appeared, Rostenkowski saw them used "over and over and over" on television together with the King Tut’s Tomb quote. "His feeling at that point was, ‘What are these people doing to me?’" the friend says. Lawyers close to Rostenkowski were furious that Skadden hadn’t gotten the photographer to sign a confidentiality agreement.

One anonymous Bennett defender’s answer is that Bennett "shouldn’t get tagged because some scumbag clearly breaches an [oral] agreement" with his law firm.

A lawyer close to Rostenkowski says that Rostenkowski’s "deep resentment" of Skadden’s role in the "King Tut" photos may have sealed Rostenkowski’s determination to resist paying some or all of the $1 million still outstanding of Skadden’s total bill of over $1.5 million.

HOW BENNETT BLEW IT

While there are many disputed facts in this story, at least this much seems clear: Bob Bennett badly failed his client Rostenkowski in the basic human-and, we believe, professional-obligation to consult him fully, to outline any foreseeable problems, and to explore any concerns that Rostenkowski might have had before Bennett took on President Clinton as a client.

It also seems relatively clear that it was Bennett’s failure to tell Rostenkowski about his Paula Jones assignment-perhaps motivated by Bennett’s understandable lust to take on the biggest client of his remarkable career-that has now given him the biggest black eye of his career, by eroding Rostenkowski’s trust.

Whether Bennett let down Rostenkowski in other respects-whether he put all his eggs in the plea-bargaining basket when Rostenkowski says he wanted to fight; got ahead of his client in the bargaining; passed up chances to attack the draft indictment at the U.S. attorney’s office and Main Justice; made an unduly intense effort to sell the deal to a client who wasn’t buying; or leaked to the press at his client’s expense-is far harder to judge.

Some well-informed (but anonymous) Rostenkowski friends complain that Bennett did some or all of these things. They have articulated their suspicions to us with a cogency that bespeaks genuine conviction. Their extraordinarily detailed version of what happened behind the scenes is hard to reconcile with the version given by Bennett defenders.

But while these Rostenkowski loyalists are apparently sincere, they may have a bias: The worse Bennett looks, the better Rostenkowski looks. And they don’t know everything about the case-including many of Bennett’s conversations with Rostenkowski-that Bennett knows. Especially when one considers the ethical constraints that Bennett says prevent him from answering these anonymous accusers in detail, his long record of vigorous representation for his clients entitles him to some benefit of the doubt.

Two questions remain: Suppose that Bennett had given Rostenkowski the kind of full disclosure he should have before taking on the president’s case. Suppose further that Rostenkowski had objected. Would Bennett have been right to say that he was going to do it anyway, and invite Rostenkowski to fire him?

We don’t think so-not when one considers the critical stage that the Rostenkowski investigation had reached, and the huge effort and expense required for Rostenkowski’s new lawyers to duplicate Skadden’s $1.5 million worth of work.

Alternatively, what if, after full advance consultation, Rostenkowski had consented to the Clinton representation? Would it have been okay then?

Among those who have so concluded are White House special counsel Lloyd Cutler; the two lawyers who now serve as President and First Lady of the United States; and legal ethics experts including Stephen Gillers, a professor at New York University Law School.

There is obviously no conflict in the usual sense here, experts say, because the president’s Paula Jones case and the Rostenkowski case have nothing to do with one another. Bennett says the same: "I dotted the i’s and crossed the t’s and the bottom line was, there was absolutely no conflict at all."

But there was at least the appearance of a conflict-or, let’s say, the perception of a problem. If nothing else, Rostenkowski was hit by a lot of bad publicity when the president’s lawyer sought to cut a deal for the congressman with the president’s Justice Department. What did Rostenkowski need that for?

Perhaps more important, there is the nagging possibility that concern about the incestuousness of the Bennett-Clin-ton-Rostenkowski arrangement might have made it harder for Eric Holder and others on the prosecution side to resolve any doubts about the case in the congressman’s favor.

Bennett asserts: "While I do believe that there’s a lot of political hype in this case, Eric Holder, right or wrong, was in no way affected by my representation of the president."

Perhaps not. But how can anyone, even Holder himself, be sure? Is it inconceivable that Holder’s analysis of the strengths and weaknesses of the case that he had inherited might have been subtly skewed by the news that Rostenkowski’s lawyer had-presumably with Rostenkowski’s full blessing-become the president’s lawyer?

Many other lawyers might have been as quick as Bennett to brush aside such niggling concerns and seize the opportunity of a lifetime. After all, says one Bennett friend, "Even a Bob Bennett can’t turn down the president of the United States."

But he could have. And he should have

The post Too Many Clients appeared first on Stuart Taylor, Jr..

Sleazy In Seattle

Stuart Taylor, Jr.

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.

Since the decision, Bogle has been forced to admit for the first time that it had had the smoking gun documents since l 1987 and had advised Fisons to withhold them-while at the same time, in the supreme court’s words, making statements to opposing counsel "that all relevant documents had been produced." These statements were accompanied by artfully worded discovery responses that Bogle later claimed (in a rationale rejected by the court) should have put its adversaries on notice that relevant documents would be produced only if found in a particular : Fisons product file

What makes the case important is not so much that one big law firm was capable of engaging in conduct that stunk so badly but that it was able to find 14 leading liti gation experts to swear that this conduct smelled just fine to them, and to persuade a special master and two superior court judges that this is the way the adversary system is supposed to work.

It’s also remarkable that the Washington State Bar Association is not, it con firms, even investigating the conduct of Guy Michelson and Kevin Baumgardner, the two Bogle partners who stand accused by opposing counsel of having made representations (under oath, in one case) to their representation (under oath in one case) to their adversaries and the superior court that were "deliberately or recklessly false and intended to deceive." The court record bears out the accusations.

The expert flotilla included $500-an-hour Yale Law professor Geoffrey Hazard Jr., perhaps the nation’s most prominent legal ethics expert [see "Hazardous Duty Pays," page 60], and leading Washington State litigators including ten fellows of the prestigious American College of Trial Lawyers, of whom two are also past presidents of the Washington State Bar Association.

All 14 experts said that Bogle’s conduct had been nondeceptive and ethically proper; most suggested that such conduct was standard operating procedure in the adversary system; and three suggested that Bogle’s conduct had been required by the lawyers’ "ethical obligation to zealously represent their client," in the words of Payton Smith, chairman of the litigation department of Davis Wright Tremaine, Seattle’s largest law firm.

You be the judge of whether Bogle’s conduct was honest, whether such practices are the norm, and-if they are- whether they ought to be.

Bogle and Fisons were initially exonerated of discovery abuse by the special master overseeing discovery in the case and by two successive superior court judges, including Judge Stuart French of Snohomish County Superior Court (north of Seattle), who presided over the 1990 trial of the underlying tort case. Judge French rejected a motion for sanctions and signed an opinion (drafted by lawyers for Bogle and Fisons) finding that all of the discovery responses had been "reasonable and proper," and that "the conduct of Fisons and its counsel…was consistent with the customary and accepted litigation practices in the bar of this community and this state"

Customery or not, "the conduct in this case sinks. "in the words of Stephen Saltzburg, a George Washington University law professor who pressed the pediatrician’s claim that Fisons and Bogle should be sanctioned and won it on appeal. "The conduct of Fisons and Bogle explains why so many ordinary people have losaith in the litigation system and the adversary process, and believe that lawyers are untrust worthy," as Saltzburg argued in one legal brief.

BUSINESS AS USUAL?

But Bogle’s experts may have been right, I fear, insofar as they suggested that many and perhaps even most litigators engage under cover of darkness in the kind of conduct that is fortuitously brought to light in this case. If so, then the discovery process has been clogged by a culture of evasion and deceit that accounts for much of its grotesque wastefulness, and the adversary system has been perverted from an engine of truth into a license for lawyerly lies.

Asked for Bogle’s comment on the case, Richard Wallis, the managing partner, says: "It is our view that the Supreme Court’s decision is a ‘course correction’ for the entire legal profession…Bogle & Gates-like other firms in this state-will now pursue discovery on behalf of our clients in a manner consistent with this ruling. It is our position that Bogle & Gates was, in this case, operating in good faith within the standards of practice followed by attorneys in this state at the time these discovery responses were made."

Wallis stresses a speech last November in which Washington Supreme Court justice Robert Utter characterized the decision as "revolutionary" and said that "in fairness, it should be noted that defense counsel…did not have the benefit of advance notice about the court’s expansive interpretation" of counsel’s obligations in discovery.

No such words in mitigation of Bogle’s conduct appear in the court’s opinion.

Asked for Fisons’s comment, associate general counsel Barry Berger said: "I have a high personal and professional regard for Bogle & Gates, but as the documents we and they filed in the case indicate, we essentially relied on advice of counsel…I think Bogle & Gates gave the advice in good faith and it was relied on in good faith."

Bogle and Fisons blame Joel Cunningham of Seattle’s Williams, Kastner & Gibbs (who brought the pediatrician’s cross-claim against Fisons) and the injured child’s lawyers (including Paul Lu-vera, the top plaintiffs lawyer in the state) for the decisions by Bogle and Fisons no to hand over the smoking gun documents.

Cunningham "had only himself to blame," William Helsell of Seattle’s Helsell, Fetterman, Martin, Todd & Hokanson, who represented Bogle & Gates and Fisons in the sanctions proceeding, told the state supreme court. Helsell, a much-admired leader of the Seattle bar and Bogle’s litigation experts claimed that Cunningham and the injured child’s lawyers failed to ask the right questions or to press their adversaries hard enough for responsive answers.

Did they? Read on

THE UNDERLYING FACTS

In January 1986, 3-year-old Jennifer Pollock, a child with multiple health problems, suffered seizures and permanent brain damage as a result of being treated with Fison’s Somophyllin Oral Liquid for her serve lung disease (including asthma) at a time when she also had a viral infection. The product’s main active ingredient is a generic drug called theophylline. The cause of Jennifer’s brian damages was (the litigation established) that the theophylline in her blood soared to toxic levels as a result of ther viral infection.

Jennifer’s parent filed a products liability suit against Fisons along with a malpractice suit against Dr. James Klicpera, the Everett, Washington, Pediatrician who had prescribed the drug. He and his insurer cross-claimed against Fisons, alleging that the company had known, and had failed to warn him, that theophylline posed a serious risk of nervous system damage when used to treat children with viral infections. Fisons defended on the grounds that (among other things) it had disclosed all known risks, and that Dr. Klicpera had caused Jennifer’s injuries by negligently failing to monitor her theophylline levels and prescribing an overdose.

In October 1986 Cunningham, Dr. Klicpera’s counsel, served Fisons with four brief requests for production of documents, including this: "Produce genuine copies of any letters sent by your company to physicians concerning theophylline toxicity in children."

SMOKING GUN NO. 1

This fit one of the smoking gun documents like a glove: a June 1981 letter sent by Fisons’s manager of marketing and medical communications, Cedric Grigg, to a select group of 2,000 physicians around the country (not inducing Dr. Klicpera).

Addressed "Dear Doctor," and entitled "Re: Theophylline and Viral Infections," the letter warned that it "can be a capricious drug," Grigg stressed a published study showing "life-threatening theophylline toxicity when pediatric asthmatics on previously well tolerated doses of heophylline contract viral infections." The letter, which was approved by high-level Fisons executives, promoted another Fisons product for treatment of asthma, called Intal, as safer than competing drugs based on theophylline.

The document certainly sounded like it came within the discovery request. And here is how Fisons’s November 1986 discovery response, prepared by Bogle lawyers, read: "Such letters, if any, regarding Somophyllin Oral Liquid will be produced at a reasonable time and place convenient to Fisons and its counsel of record." (Emphasis in original.) So you might think the letter would be produced.

But in fact, Fisons and Bogle-which says it first learned in March 1987 about the 1981 Grigg smoking gun letter-decided not to produce it, then or ever. And later, they argued that they had acted properly because they had had no obligation to produce it. (See if you can guess the Fisons-Bogle rationale; then look under the "Rationales for Concealment" subhead below to see if you were right.)

Cunningham, the pediatrician’s lawyer, says (as did Jennifer Pollock’s lawyers) that Fisons and Bogle misled him into believing that there were no documents responsive to his request.

"I expected that I would get an honest answer to an honest question," he recalls. But he did not get the 1981 Grigg letter until March 15, 1990-some 40 months after his request, and three years after Bogle got the letter-when the anonymous whistle-blower sent it to Cunningham via U.S. mail. By that time, Bogle and Fisons had parried many more discovery requests, and Dr. Klicpera had settled the brain-damaged child’s malpractice suit for what amounted (after various contingencies) to a $500,000 payment by his insurer.

The leak of the 1981 Grigg letter prompted the court-appointed special master in charge of discovery in the case, Peter Byrnes, to demand on March 28, 1990, that Bogle and Fisons stop playing games and hand over-the next day-any other theophylline-related documents of which they had copies at hand. (Byrnes, a former Bogle & Gates partner, was chosen with Cunningham’s assent.)

Byrnes said that Fisons’s "nonresponse" to Cunningham’s request was "troubling," but that "the plaintiff was not witho…

All 14 experts said that Bogle’s conduct had been nondeceptive and ethically proper; most suggested that such conduct was standard operating procedure in the adversary system; and three suggested that Bogle’s conduct had been required by the lawyers’ "ethical obligation to zealously represent their client," in the words of Payton Smith, chairman of the litigation department of Davis Wright Tremaine, Seattle’s largest law firm.

You be the judge of whether Bogle’s conduct was honest, whether such practices are the norm, and-if they are- whether they ought to be.

BUSINESS AS USUAL?

No such words in mitigation of Bogle’s conduct appear in the court’s opinion.

Did they? Read on

THE UNDERLYING FACTS

SMOKING GUN NO. 1

The document certainly sounded like it came within the discovery request. And here is how Fisons’s November 1986 discovery response, prepared by Bogle lawyers, read: "Such letters, if any, regarding Somophyllin Oral Liquid will be produced at a reasonable time and place convenient to Fisons and its counsel of record." (Emphasis in original.) So you might think the letter would be produced.

Cunningham, the pediatrician’s lawyer, says (as did Jennifer Pollock’s lawyers) that Fisons and Bogle misled him into believing that there were no documents responsive to his request.

Byrnes said that Fisons’s "nonresponse" to Cunningham’s request was "troubling," but that "the plaintiff was not without fault" in failing to clarify the response. He denied a motion for discovery sanctions against Bogle and Fisons.

But, the special master said to the Bogle lawyers in a telephone conference, "my hunch is that you have already pulled them out… and they’ve already been assembled somewhere."

His hunch was right. Bogle lawyers had copies of the two smoking guns and other theophylline-related documents in Seattle.

SMOKING GUN NO. 2

A second document, produced at the same time, was a July 1985 memo from the same Cedric Grigg to a Fisons vice-president, which obliterated whatever remained of Fisons’s failure-to-warn defense.

The memo began: "An alarming trend seems to be surfacing in the medical literature and as a manufacturer of theophylline products we need to be aware of it…[There has been] a dramatic increase in reports of serious toxicity to theophylline in 1985 medical journals."

The memo went on to state that many doctors who prescribe theophylline prod- promotional letters as " ‘Dear Doctor’ letters" in internal communications.

"DUCKING AND DODGING"

Bogle’s 14 experts convinced Judge French of the legitimacy of the Bogle-Fisons rationales. And, during the January 1991 oral argument in the trial court on the discovery abuse issue, William Helsell, counsel for Fisons and Bogle, made a virtue of such concealment by asserting that it was required by principles of legal ethics:

"All experienced trial lawyers do some ducking and dodging in connection with discovery. And why do they do that? We do it because we have a duty to our client…within the bounds of honesty, to not give the opposition one piece of paper that they don’t clearly and specifically ask for." Of course, in this case Bogle’s adversaries did clearly and specifically ask for the 1981 smoking gun document, and arguably the 1985 document as well-or at least their requests would be read that way by anyone whose comprehension of English had not been warped by years of exposure to the bizarre hermeneutics of discovery practice.

You can judge from the excerpts in the box below whether Bogle lawyers engaged only in permissible "ducking and dodging"-or whether their statements were, in Saltzburg’s words, "deliberately or recklessly false and intended to deceive."

THE SUPREME COURT RULES

The Washington Supreme Court would have no part of Bogle’s arguments on the discovery issues, however. In its September 16 decision, the court upheld the $1.1 million award to Dr. Klicpera for injury to reputation as well as the fee award, though reversing the pain and suffering award. More significantly, it also reversed, as an abuse of discretion, Judge French’s refusal to award sanctions under the state’s civil rule regarding discovery abuse, which the supreme court was construing for the first time.

"The drug company avoided production of these theophylline-related materials, and avoided identifying the manager of medical communications [Cedric Grigg] as a person with information about the dangers of theophylline, by giving evasive or misleading responses to interrogatories and requests for production," the court held.

It refused to accept the if-it-isn’t-in-the-right-file-under-the-right-name-we-won’t produce-it ploy, noting that none of the parties had ever specified that the discovery would be limited to documents in the "Somophyllin Oral Liquid files," or that documents concerning theophylline risks would be withheld if they were filed elsewhere or did not contain the words "Somophyllin Oral Liquid." Nor had any party ever suggested that that was what Fisons meant when it undertook to produce only responsive documents "regarding Somophyllin Oral Liquid," the court held.

The court also cut through the twisted argument that the Grigg documents regarding the dangers of theophylline-based drugs were not documents "regarding Somophyllin Oral Liquid" because they were not in that product’s file, saying that "a document that warned of the serious dangers of the primary ingredient of Somophyllin Oral Liquid is a document regarding Somophyllin Oral Liquid." After all, the court pointed out, Fisons marketed this and its three other Somophyllin products as brand-name embodiments of theophylline.

It added that, in light of the elaborate series of pretexts offered by Fisons and Bogle for their acts of concealment, "it appears clear that no conceivable discover request could have been made by the doctor that would have uncovered the relevant documents. The objections did not specify that certain documents were not being produced. Instead, the general objections were followed by a promise to produce requested documents. These responses did not comply with either the spirit or the letter of the discovery rules."

Chief Justice James Andersen’s opinion also stressed that "a spirit of cooperation and forthrightness during the discover process is necessary for the proper functioning of modern trials." He said that "conduct is to be measured against the spiructs "may not be aware of this alarming increase in adverse reactions such as seizures, permanent brain damage, and deaths," and that the standard dosage level endorsed by (among others) Fisons was "a significant ‘mistake." Grigg concluded: "This ‘epidemic’ of theophylline toxicity [would justify a] corporate decision to cease promotional activities with our theophylline line of products."

This memo, and a number of other documents containing dire warnings by Grigg about theophylline, would (as the state supreme court held) have come to light much earlier if Bogle and Fisons had responded candidly to any one of several discovery requests made by the plaintiffs.

Ultimately, Fisons bought its way out of the lawsuit by the injured child and her family for a whopping $6.9 million in April 1990, less than a month after it had to cough up the smoking gun documents. This amount set a local record. It also constituted an admission by Fisons and Bogle of the devastating impact that the previously withheld documents would have had at trial.

But Dr. Klicpera, furious at the cover-up of such vital evidence, pressed on with his cross-claim, seeking sanctions for discovery abuse and asserting that he would not have agreed to his own settlement with the injured child’s family had he known of the smoking gun documents.

In July 1990, after a monthlong trial, a jury decided for the doctor on most of his failure-to-warn claims. The jury displayed its disgust with Fisons and Bogle by awarding Dr. Klicpera-whose evidence of actual damages was pretty thin, and whom the jury found to be 3.3 percent contributorily negligent-a generous $3.3 million. This included $1.1 million for injury to his professional reputation and $2.1 million for pain and suffering. (Punitive damages are not recoverable in the state.)

Judge French compounded the blow by hitting Fisons with a $450,000 attorneys’ fees award to Dr. Klicpera, although he rejected the doctor’s discovery abuse motion. It was this case that landed before the state supreme court and prompted its decision against Bogle and its client.

RATIONALES FOR CONCEALMENT

In defending against these claims, Fisons and Bogle & Gates insisted that their nondisclosure of the smoking gun documents had been proper.

Their rationale as to the June 1981 smoking gun letter-which was indisputably covered by Cunningham’s October 1986 request for production-was that Fisons’s inclusion of the limiting phrase "regarding Somophyllin Oral Liquid" in its November 1986 response had implicitly served notice on Cunningham that Fisons objected to producing documents responsive to his request, no matter how relevant, unless they were kept in its "Somophyllin Oral Liquid files."

Fisons and Bogle also seemed to interpret "regarding Somophyllin Oral Liquid" as excluding any documents (wherever filed) regarding the drug’s primary ingredient unless the brand name was cited. All copies of the two smoking guns were (Fisons has claimed, without contradiction so far) in the files for one of its other drugs, Intal, and those documents did not mention Somophyllin Oral Liquid by name.

Bogle and Fisons also claimed that they had served notice to the same effect on all parties by making a general objection from the outset of discovery to "all discovery requests regarding Fisons products other than Somophyllin Oral Liquid," and they asserted that Jennifer Pollock’s counsel had similarly limited the scope of discovery in their requests by defining "the product" as Somophyllin Oral Liquid.

Bogle managing partner Richard Wallis stresses in written responses to questions for this story: "This limitation on the scope of discovery was first enunciated by our attorneys [in November 1986] before they learned of the existence of any of the Intal [smoking gun] documents…When we learned [in 1987] of the existence of the various Intal documents, the issue then became whether we were under an affirmative obligation to take the initiative and expand the existing product scope of discovery to include the Intal files. …We concluded in good faith that we did not have such an affirmative obligation under the discovery rules, and in view of our obligation to represent our client."

But the devious thing about Bogle’s conduct was not its November 1986 insertion of the phrase "regarding Somophyllin Oral Liquid" into its response to a request for production; it was Bogle’s unilateral and secret-and strained-interpretation of that phrase as a license to withhold documents highly relevant to the safety of Somophyllin Oral Liquid if they happened to be found in files other than those designated by Fisons as "Somophyllin Oral Liquid files." With this surreptitious, self-serving semantic gambit, Bogle and its client withheld the crucial documents while leading their adversaries to believe no such documents were withheld.

Another document request, from the injured child’s lawyers, seeking "any warning letters including ‘Dear Doctor’ letters or warning correspondence to the medical professions regarding the use of the drug Somophyllin Oral Liquid" also seems clearly to cover the June 1981 smoking gun letter, the supreme court stressed. In fact, Bogle later assured opposing counsel and the court that it had produced any relevant "Dear Doctor’ letters."

To explain away this particular whopper, after the leak of the June 1981 letter, Bogle supplemented its twisted interpretation of "regarding Somophyllin Oral Liquid" with another, even more astonishing contention: It argued that the June 1981 letter-which begins "Dear Doctor" and warns of "life-threatening theophylline toxicity"-was not a "Dear Doctor" letter! How so? Because, Bogle has contended, this is a "term of art referring to a warning letter mailed at the FDA’s request to all physicians in the United States." Therefore, Bogle suggests, its assurances that any relevant "Dear Doctor" letters had been disclosed, and that there were no such letters, were true.

On its face this is an excessively narrow and legalistic gloss on the phrase. Moreover, Fisons’s officials had in fact referred to the 1981 Grigg letter and similar it and purpose of the rules, not against the standard of practice of the local bar…Misconduct, once tolerated, will breed more misconduct, and those who might seek relief against abuse will instead resort to it in self-defense."

The supreme court remanded the case to Judge French to determine the amount of sanctions and who should pay, with instructions to assess an amount "severe enough to deter these attorneys and others from participating in this kind of conduct in the future."

On remand, Bogle strenuously opposed demands by Dr. Klicpera’s counsel for a public evidentiary hearing at which Bogle partner Guy Michelson, other Bogle lawyers, and Fisons officials could be cross-examined about their conduct and about such questions as when various people at Fisons and Bogle had learned of the smoking gun documents and how much Bogle had been paid. Bogle sought to preempt the need for any such hearing by filing an afliclavit in which Michelson said he had advised Fisons not to disclose the 1981 and 1985 smoking gun documents, of which he admitted-for the first time-he had known since (respectively) March and November 1987.

BOOLE AND FISONS SEITLE

Finally, in late January, Bogle and Fisons bought their way out of a public hearing by agreeing to pay $325,000 in discovery abuse sanctions to Dr. Klicpera’s insurer, and to state publicly that Bogle admitted that i had violated the rules, and said it had "taken steps to ensure that all attorneys at Bogle & Gates understand that the rules . . . must be complied with in letter and spirit." Managing partner Wallis says the firm "immediately" circulated copies of the decision "to all of our attorneys who litigate in any fonn," and followed up with mandatory training sessions where four partners discussed the legal and practical implications for discovery. The firm still suggests to reporters and others, however, as it has all along, that the supreme court had changed the discovery rules on it in the middle of the game. The state bar gives a similar rationale for its decision to do nothing about the case.

So Fisons has already paid out more than $10 million-$6.9 million to the Pollocks, $1.5 million to Dr. Klicpera, its share of the $325,000 in discovery abuse sanctions to his insurance company, and fees rumored to exceed $2 million to Bogle & Gates and Helsell-for its handling of a lawsuit that Fisons could have settled for $1.5 million (according to lawyers close to the case), had it conducted a responsible defense from the start.

Hardball litigation-for which Bogle & Gates is known in the Seattle legal community-doesn’t always pay. But often it does. As the doctor’s lawyer, Saltzburg, says of Fisons and Bogle & Gates: "They almost got away with it." And they would have if not for the anonymous whistle-blower who mailed the first Grigg memo to Cunningham.

And even though they didn’t get away with it this time, the sanctions award apparently forced Bogle to disgorge only a small fraction of its fees from Fisons. Michelson and Baumgardner are still in good standing at the firm.

A LEGAL CULTURE OF DECEIT

It would be easy to dismiss this sad story as simply one episode of rogue lawyering by a single big law firm and its client. But it’s more than that, judging by the parade of leading lights that stepped up to defend Bogle. In the view of Bogle’s 14 distinguished litigation experts (and of Judge French), the kind of ducking and dodging that took place in this case is a routine aspect of the discovery process, and is permitted and (some say) even required by the rules of professional ethics. Examples:

•Roy Moceri of Seattle’s Reed Mc-Clure, a leader in the state bar association, swore: "Most of the bar of this state would be subject to sanctions at one time or another" if Fisons and Bogle were sanctionable for their "nonresponsive answer" to Cunningham’s request for theophylline documents.

•David Boerner, a legal ethics professor at the University of Puget Sound Law School, wrote: "The ‘practitioners’ see discovery as a part of, not an exception to, the adversary system…Tendentious, narrow, and literal positions with regard to discovery are, in my opinion, both typical and expected in the civil discovery process."

•Jerry McNaul, head of the litigation department at Seattle’s Culp, Guterson & Grader, who often represents plaintiffs, said that Fisons’s responses to discovery requests were "typical of those that I routinely find defendants making in major litigation."

•Yale’s Geoffrey Hazard said that or the basis of his limited review of the case "it would be unreasonable to expect Fisons to review non-Somophyllin Oral Liquid files in responding to [Cunningham’s] request [for theophylline documents]," and that "I do not find evidence of discovery abuse or unethical conduct by Fisons or its counsel." Hazard added: "An award of sanctions is reserved for clear abuses of the discovery process where reasonable minds cannot differ on the issue. In responding to discovery requests, the rules do not require the responding party to be generous or to volunteer information that may be helpful to the other side."

CONDONING INJUSTICE

"What surprised me about the case," say: Dr. Klicpera’s lawyer, Joel Cunningham "is that they were able to get highly respected lawyers to sign declarations saying the conduct was all right….I saw people whom I highly respect say, ‘Hey we do this all the time.’ I doubted myself; little bit through this. I thought, ‘Well maybe I’m naive. Maybe I’ve been unfair to these guys.’ But I would come back to thinking, ‘This just can’t be the way of practice law, and if it is, it’s just totally wrong, and it’s the reason we spend our lives in court arguing over discovery."

The conduct that these experts con done-after describing it in highly euphemistic terms-is not just a lawyers’ game. It causes real injustice, by denying essential evidence to wronged parties like the Pollocks and Dr. Klicpera. The discovery process, and indeed the legal process fail in their most basic functions when they fail to unearth such highly relevant documents, and thus allow the truth to be concealed, denied, and perverted.

"Both as a lawyer and a law teacher I had a special interest in this case," Stephen Saltzburg recalls. "As a law teacher, I was almost sick to my stomach every time I thought about the possibility that law schools would have to add to their skills training programs courses in how to mislead judges and other lawyers and how to make misleading statements rather than true ones….

"I could not imagine having to criticize a student doing an exercise for being can did, honest, and forthcoming, and to demonstrate how to be misleading, false, and deceptive. Were I to lose, I feared 1 would be required to do just such a demonstration, at least if my students were going to be able to fight for their clients the way other lawyers fought for theirs."

It is no answer-or, at least, no defense of the system-to say, with Bogle and its experts, that the process failed here only because the lawyers for Dr. Klicpera and the Pollocks did not do their jobs.

Assume, for the sake of argument, the validity of Bogle’s claim that Joel Cunningham, Paul Luvera, and their colleagues should have framed their discovery requests more artfully, or should have sensed that Fisons was hiding something behind its sly ambiguities. (In fact, most of their key discovery requests were simple, precise, lucid, and narrowly tailored.) So what? Why should we tolerate a discovery system that works well only when the lawyers invoking it display uncommon brilliance in framing just the right questions, uncommon cynicism about their adversaries’ candor, and an uncommon willingness to go to court to remove any possible ambiguity in an adversary’s response?

"Their contention, as far as I can gather, is that I was naive or lazy," says Joel Cunningham, "and if that’s true, I claim the right to be naive, if that means you expect people to tell the truth."

In fact, Fisons-Bogle counsel William Helsell described Cunningham as "a rising star in our profession" in his January 1991 argument. Helsell also called the plaintiffs attorneys "as good lawyers as we have in western Washington."

So, by Helsell’s account, this was a case in which both sides had first-rate lawyers; in which massive discovery proceeded over more than three years; and in which the corporate defendant nonetheless would have managed to keep the smoking gun documents hidden forever but for the random act of a whistle-blower. How could that be? Helsell’s explanation, and that of Bogle’s other experts, is that some of the best lawyers in the state somehow "didn’t do their homework."

Something is very wrong when even first-rate lawyers cannot contrive discovery requests exquisite enough to prompt their adversaries to cough up highly relevant documents that the defense lawyers have in hand. This is the central lesson of the Fisons case, regardless of whether you blame the system’s failure on unethical (but apparently commonplace) conduct by one side or on insufficient vigilance by the other side.

There is also something egregiously wasteful about a system in which lawyers seeking discovery must assume, if they want to protect their clients, that their adversaries will resort to evasion, obfuscation, cleverly concocted ambiguities, and other trickery to avoid disclosing damaging documents. For if that is the assumption, those seeking discovery must do what Bogle’s experts say Joel Cunningham should have done: take deposition after deposition, serve interrogatory after interrogatory, and file motion after motion, in a costly war of attrition to smoke out evidence that should be obtainable through a few straightforward questions to opposing counsel. Finally, it is perverse for the legal system to create such strong incentives to come up with rationalizations for hiding evidence.

FIXING THE SYSTEM

The root cause of discovery abuse, and of the waste that it entails, is the persistence of raw adversary principles and instincts in the context of a discovery system in which lawyers are supposed to exchange all relevant, nonprivileged information in "a spirit of cooperation and forthrightness," in the words of Chief Justice Andersen. And the solution is to reform the discovery process by making crystal clear the obligations of litigants and counsel to hand over the most relevant information to their opponent: without playing endless games over whether just the right question has beer asked.

A modest step down this road has now been taken by the federal judiciary, with the adoption (effective last December 1) of discovery reforms including a requirement (at the option of the various U. S district courts) that parties identify or produce clearly relevant documents (and certain other information) to one another a the outset of a case.

Yet these new federal discovery rule: have inspired such a remarkable storm of opposition, from such a broad array of litigators-the plaintiffs trial bar, the corporate defense bar, and a raft of other groups-that Congress almost vetoed them before they took effect, and might still, conceivably, repeal them.

What explains the breadth of this opposition? Self-interest, for one thing: The waste associated with discovery as we know it is measured in billable hours, and any reform that cuts down on such waste will cost law firms a pile of money.

Money aside, many lawyers sincerely believe that the mandatory disclosure rule would put them at cross-purposes with their clients-for example, by forcing them to volunteer damaging evidence even if it is relevant only under theories o liability that might never have occurred to opposing counsel. They also fear that turn-it-all-over obligation would deter lawyers from asking probing questions of their clients for fear of finding skeleton in closets that they would then be obliged to throw open to their adversaries.

Perhaps so. But what would be so bad about that? Why shouldn’t we put lawyers at cross-purposes with clients who are seeking to conceal relevant evidence? Note that here we’re talking about corporate clients seeking to avoid civil liability, not about individual criminal defendants squirming in the grip of the state. The rules should be designed to achieve higher purposes than ensuring the wealth and comfort of lawyers by helping them facilitate fraud.

And why shouldn’t we require litigants to bring relevant evidence to light regardless of which side it helps? Sure, this might reduce the advantages that skilled, diligent lawyers have over sloppy, lazy lawyers. But litigation rules should be aimed at awarding victory to the party with the best case, not the one with the best lawyer.

The glory of the adversary system has been its power to illuminate the truth by harnessing the skills of zealous advocates for opposing parties to dig out relevant facts and to clarify which inferences judges and juries can reasonably derive from a full factual record. The shame of the adversary system has been its degeneration into a pretext for lawyers to hide facts, so as to pervert the truth. It’s time for those who care about the system to make it clear that the duty of zealous advocacy neither requires nor permits lawyers to be cover-up artists.

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Euthanasia Puts Its Best Foot Forward

Stuart Taylor, Jr. — Tue, 01 Mar 1994 00:00:00 +0000

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1994 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.

“Six years later, in 2007, after seeing her husband suffer more than he could bear, my client kept her promise. Our submission today is that the Eighth and Fourteenth Amendments prohibit the state from sending her to prison for making that promise, or for keeping it.”

In jumped Scalia: “You say ‘help him die: but this wasn’t really ‘helping,’ was it? Didn’t your client do it all by herself by shooting a lethal dose of morphine into a patient who was incapable of expressing any wish at all ?And isn’t that precisely the kind of active euthanasia that Jackson held to be unprotected by the Constitution?”

“We don’t believe this case is governed by the Jackson plurality opinion.” responded Robbins. “In fact, we rely on the dissent and Justice O’Connor’s concurrence for the proposition that a majority of this Court’s members have suggested that a person in my client’s situation cannot constitutionally be subjected to long-term imprisonment for her actions. In this case, Florence Madison has been sentenced to 20 years without parole despite undisputed evidence that she prolonged her husband’s life by six years – most of which she spent caring for him – by preventing him from killing himself in 200I. And in the end, she did no more than necessary to carry out her husband’s clearly slated wish, to honor her own promise, and to end his palpable suffering. With the Court’s permission, I will briefly illustrate these points.”

The courtroom monitors IiI up, showing Florence Madison with her now-deceased husband. William, a prominent San Diego lawyer, and his brother Alex, all gathered in the Madisons’ living room. Gazing steadily into the camera, William Madison said this:

“We are making this video recording to reconfirm the essential terms of my written living will, and my beloved wife’s Morally Binding Covenant in Consideration of Agreement to Forgo Suicide, which we have signed today. I am 63 years old and of sound mind. Genetic tests and other medical evidence confirm that I will probably begin showing clear symptoms of hereditary Alzheimer’s disease over the next five years, and will decline progressively into a quasi-vegetative state. I believe I am showing early symptoms already, including uncharacteristic memory lapses and difficulty spelling familiar words.

“I saw my mother at this stage. Then I watched her mind fade away through the last years when she could experience happiness. And then I watched her linger in apparent misery for three years after she had settled into a quasi-vegetative state – unable to care for herself.,to communicate, to recognize loved ones. I have made it clear to my wife that I am unwilling to start slipping down that path unless she will guarantee me an exit.

“Specifically. I vowed that I would kill myself by shotgun between today – January 6, 2001 – and December 31, 2001, while I can still be confident of my ability to do so, unless my wife would promise to carry out my wishes as specified in my living will. She has now made that promise, with great reluctance, because she knows it is the only way to prevent my suicide. Specifically, she has promised to end my life if and when my Alzheimer’s disease progresses to the point that I cannot communicate my wishes, recognize any family member, feed or dress myself, walk, or go to the bathroom unassisted, as those terms are defined under the ‘Living Death’ heading in my living will.

“If and when that time comes, at my insistence, my wife will inject me with the entire vial of morphine that I have this day given her. even if it is a…

Editor’s Note: The litigants referred to in this story are fictitious character.

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

“If and when that time comes, at my insistence, my wife will inject me with the entire vial of morphine that I have this day given her. even if it is arguably illegal to do so at that point in time. My brother Alex has promised 10 act in my wife’s stead in the event that she becomes incom-

petent to keep her promise, or fails or refuses to keep it.” At this point in the video, Florence and Alex Madison affirmed that they understood William’s wishes and would honor them.

“If any are disposed to fault this covenant or its fulfillment,” added William Madison – gazing through the years into the eyes of the justices – “they should understand that their complaint is with me, for extorting my wife’s promise – not with her for giving it.”

Easterbrook Jumps In

The Court’s vast chamber was silent for a moment. Then, as Robbins moved into the evidence of William Madison’s suffering in his last year, Justice Easterbrook broke in:

“In light of the state’s claim that the defendant had reason to doubt that her husband would in fact commit suicide in 2001, and that a nurse saw him smile repeatedly in 2007 in the days preceding his death, isn’t jackson right on point?”

“No, Your Honor, and I would like to give you four very specific reasons,” Robbins replied. The veteran Supreme Court advocate was gambling – successfully – that this lead-in would deter further interruptions while he took his best shot at winning over O’Connor.

First, Robbins noted, in this case the trial judge had refused to instruct the jury that it must acquit unless it found either thai the defendant had known the suicide threat to be a sham, or that she had knowingly administered the lethal injection before her husband had reached the “living death” condition specified in his living will. So for purposes of this appeal, there was no reason to doubt (or to suppose that the jury had doubted) either that Florence had believed the suicide vow, or that she had waited for as long as she thought she could in good conscience before administering the lethal injection.

Second, as the O’Connor concurrence had noted, unlike William Madison’s living will, the one at issue in the landmark New York case of Tanya Jackson had not clearly specified under what conditions her life should be ended. Nor had her vague threats of suicide crystallized into an unmistakable vow to do the deed by a certain date unless her husband would promise her death with dignity later on.

Third, the government’s health care controls had, Robbins claimed, “effectively barred William Madison by government fiat from getting drug therapy for his condition, and thus forced on him, and consequently on his wife, the crucial dilemma of choosing between lingering decline, early suicide, and the course that William ultimately chose.”

This point was detailed in the defense brief: Under the health care cost control and rationing regulations, it was unlawful to sell insurance coverage for AlzStop, the costly drug that appears to delay the onset of Alzheimer’s disease for as much as ten years in some cases. And in order to make it prohibitively expensive for all but the richest of the rich to buy therapies unavailable to the poor, Congress had slapped 200 percent taxes on direct sales of drugs like AlzStop to individuals. As a result, William Madison would have had to pay $800,000 a year for AlzStop, rapidly depleting the family’s savings; this he had refused (despite his wife’s urging) to do.

And fourth, Robbins said, “the defendant in Jackson was sentenced only to community service and a fine. My client will spend the next 20 years in prison if this Court affirms. Such an outcome, we submit, would not only violate the due process rights established in Armstrong v. Maryland [the 1997 “right to die” decision, extending constitutional protection to passive euthanasia], hut also would amount to cruel and unusual punishment under the logic of Justice O’Connor’s concurrence in Jackson.”

At that point O’Connor (who appeared to be reading a prepared question) spoke up: “Didn’t the Jackson concurrence say merely that life without parole might be a cruel and unusual sentence for a family member who acts to end grievous suffering? And how does that fit this case?”

“The hypothetical in the Jackson concurrence,” replied Robbins, “appears to be illustrative of the larger point that it would be unconstitutional to subject anyone to prolonged imprisonment for ending an incompetent loved one’s suffering pursuant to the terms of a living will.

“In any event, the evidence here shows that my client believed her husband was suffering grievously. And her sentence is the substantial equivalent of life without parole. She will be in prison until she is 88 years old unless she gets relief from this Court. It is hard to imagine a punishment more ‘cruel and unusual’ than to condemn a woman to die in prison – or at best to see her grandchildren grow up through prison bars – for what our amici and many other civilized person, consider to be an act of consummate morality.”

(While the jury had acquitted Madison of murder, convicting only on the lesser charge of voluntary manslaughter, it had had no inkling that this conviction would carry a 20-year-mandator minimum sentence without parole. It was Florence Madison’s second conviction for a “crime involving serious use of violence” as defined in California’s so-called Two Strikes, Twenty Years statute: Madison’s first “strike” had been her misdemeanor guilty plea to tossing a rock through a window in 1969, during an antiwar rally at the University of California at Santa Barbara.)

After parrying a question from Justice Thomas – who broke his usual silence to ask whether there were any eighteenth century common law precedents or other evidence that the framers of the Eighth Amendment had meant to bar imprisonment for active euthanasia – Robbins closed with a quotation from Justice William Brennan, Jr.’s 1990 dissent (since adopted by the Court) in Cruzan v. Missouri:

“Each of us has an interest in the kind of memories that will survive after death … not only a normal interest in minimizing the burden that her own illness imposes on others, but also an interest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condition.

The meaning and completion of her life should be controlled by persons who have her best interests at heart – not by a state legislature concerned only with the ‘preservation of human life.'”

California Sites Jackson

Jim Sulton, the California attorney general. spent his time on an unremarkable rehash of Jackson and an unconvincing effort to insinuate that greed had motivated Florence Madison’s “rapid acquiescence” in her husband’s refusal, in 2002, to spend $400,000 for a six-month course of AlzStop. Sutton also stressed that by ending William’s life in 2007, Florence had saved $120,000 a year in nursing home costs. He had to acknowledge, however, that the defendant had inherited nothing from her husband; he had sought to preempt any impugning of her motives by making her an irrevocable gift of most of his assets in 2001, leaving the rest of his estate to their three grown children.

Sutton also stressed the testimony of a nursing home attendant that William Madison did not appear to he suffering most of the time, and that he had opened his eye, and smiled at least twice during the week before his wife had “killed the poor man.”

“That’s the same attendant who claimed a $20,000 bounty under the California Whistle-Blower Incentive and Protection Act for reporting the morphine overdose to the police. isn’t it?”” Justice Cabranes inquired. It was.

Taranto, for the National Association of Attorneys General, effectively probed the weakest links of his adversary’s constitutional argument. “As sad as the defendant’s plight may be.” Taranto said, “the forum in which to ‘present claims for sympathy is her pending petition for gubernatorial clemency. What the defendant seeks from this Court is nothing less than creation of unconstitutional right to kill.

“The Constitution recognizes no such right, and any holding to the contrary would be utterly unprecedented and impossible to confine to unusual cases like the one now before the Court. It would invite a flood of purported mercy killings and pseudo-mercy killings by persons whose motivations range from misguided pity to the desire to expedite inheritances.”

Ginsburg interjected: “Do you dispute the petitioner’s claim that she had to do what she did to carry out the promise on which her husband had insisted to dissuade him from suicide?”

“We do not at this stage dispute that the defendant believed that her promise was necessary to avert suicide,” responded Taranto. “But this was obviously not a lawful contract, and neither state law nor, certainly, the Constitution imposed upon her any duty, or gave her any right, to carry out her promise by committing the serious crime of homicide.

“This case is governed by the plurality opinion in Jackson ,” added Taranto, “which says in the clearest of terms that whatever may be the scope of the constitutional ‘right to die,’ there is no constitutional right to kill. .. , Nor can the due process clause be stretched to incorporate the fine distinctions of the Death with Dignity Society’s Draft Report on Moral Covenants to Avert Premature Suicide, as petitioner and her amici ask this Court to do.”

Taranto dismissed Madison’s “cruel and unusual punishment” argument as foreclosed by a long line of Eighth Amendment decisions including Williams v. Texas in 1996, which upheld a mandatory minimum sentence of life without parole for a homeless man with no record of violence; he had been convicted under a “three-time loser” law of shoplifting a winter coat after having previously, at the age of 16, burglarized a television and a boom box from the homes of two neighbors while they were at work.

“Justice O’Connor’s dicta in Jackson.” Taranto contended, “said only that might violate the Eighth Amendment to impose a sentence of life without parole upon a person who practiced active euthanasia to end a loved one’s ‘prolonged, agonizing suffering.’ The decedent’s suffering in this case, if any, was apparently episodic and may well have ended before the lethal injection. A ruling for the defendant here would invite active euthanasia in cases in which the evidence that the decedent had been suffering is tenuous or nonexistent.”

“I don’t guess you would say there was no suffering in this case, would you?” interjected Justice O’Connor, for whom Taranto had clerked long ago. He conceded the point. Her follow-up question, which the lawyer did not answer directly, came as close as O’Connor ever does to tipping her hand: “And I don’t suppose,” she asked, “that we could uphold the sentence in this case, could we, without signaling to people like William Madison that suicide might be their only way out?”

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

Stuart Taylor, Jr. — Tue, 01 Mar 1994 00:00:00 +0000

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1994 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.

The plaintiffs had scored heavily, at least among the on-line focus groups, with their evidence suggesting that Sanus had – notwithstanding its disclaimers – helped inveigle parents into believing that its gene tests could identify embryos likely to be exceptional in certain aspects of innate intelligence: these “smart embryos,” the plaintiffs’ theory went, had turned out to be unusually susceptible to OCD. If the jury upheld this theory, it would unleash a torrent of new claims.

That was reason enough for this case to weigh heavily on Coleman. It was not the only reason. But even his partners at 120-lawyer Munger, Tolles & Olson, in Los Angeles, had no inkling – not then – of the depth, or the source, of his inner turmoil over the case.

“Nice job,” J. Regan Kcmey, the founder, chairman, and genius-in-chief of the Telluride, Colorado-based Sanus, chirped into Coleman’s earphone as his old friend emerged from the courthouse into the brilliant L.A. sunshine. Kerney had been watching the closings, and the bleak focus group reports, from his condominium in Moscow. “Nice day out there in Lotus Land,” he offered.

“Yeah,” Coleman responded, as he fiddled with the picture on his personal communicator. “Earthquake weather.” He had a superstitious preference for rainy-day closings ever since a Boston jury had brought him his biggest win in the Nor’easter of 2006.

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

Coleman had a formidable adversary in the Sanus trial: the diminutive, 32-year-old Marjorie Belli. She had been superb – maybe even better than Big T himself, as Coleman’s buddies had called him since he had used a football scholarship at UCLA to pull himself and his family out of the South Central L.A. welfare trap.

The jurors had been riveted as Belli excoriated Sanus with a fervor akin to religious conviction. “Make this corporation pay,” she had exhorted, “for cashing in on the hopes and fears of these parents. Make it pay for playing God with the very humanity of these suffering children. And make it pay for trying to pin the blame on their moms ‘and their dads for the wrongs done by its own greed and fraudulent conduct.”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtroom monitors. Kids like 6-year-old Michael I-lays, whom the jury saw alone in his room, doing what he does every day–compulsively ripping out what was left or the hair on his torn and scarred scalp.

Kids like sweet-looking little Nancy Kendall, an 8-year-old who couldn’t get dressed for school without an hour of repetitive rituals-socks on, socks off, socks on, socks off again-punctuated by piercing little cries and groans. Her long-suffering mother, Mary Kendall, had been unable to take the job she had studied for – and thus was unable to get off welfare – because nobody else would care for her tortured child.

BLAMING THE MOMS

It’s hard to beat victim-witnesses like that with scientists spouting their dry analyses of causation and statistical significance, or with executives touting their disclaimers and waiver forms. Which is why Coleman supplemented the contract disclaimer, informed consent, and causation defenses with his “blame-the-moms” strategy and his “we-created-you-so-you-can’t-complain” excuse, as Belli derisively clubbed them.

Shorn of Coleman’s deft rhetorical spin, the essence or the defense was this: “The problems these kids have arc tragic, but they aren’t our fault. The evidence shows that embryos selected through the Sanus process are mulch less likely than babies in the population at large to develop the serious health problems for which we test, and 110 more likely to develop any other health problems, including the ones of which these plaintiffs complain.

“But even if you suspect there might be some association between OCD susceptibility and what the plaintiffs (not we) call the ‘smart genes,’ that’s not our responsibility. If some of these parents were so ambitious, so eager to have exceptional kids, that they ignored our disclaimers and misused our process to choose what somc magazine article said would be the ‘smartest’ embryos, how in good conscience can they say that we made them do it?

“Besides, there is no allegation that we did anything at all to cause the maladies from which these kids suffer. We have never changed the genetic makeup of a single embryo. And no serious claim is advanced here that our testing process harmed any embryos. The only claim is that the parents chose certain embryos based on particular data that we had advised them to ignore.

“If these parents had never used our process, these children would either have been born with the same problems they have now, or they would not have been born at all, because other embryos would have been brought to term instead. That is what these parents’ claims inexorably boil down to: They are saying that their children should never have been born.”

The blame-the-moms defense got its punch from Coleman’s video-assisted cross-examination, especially of Michael Hays’s mother, Sharon, of Mill Valley, California. On direct-answering so discursively that Belli privately called her “Illy runaway witness” -she told of being beguiled by a slick-talking Sanlls salesman who promised that for $20,000, she would practically be guaranteed a nawless, tall, bright, athletic child.

On cross, Coleman was so gentle he almost seemed, at first, to be on her side. “I take it, Mrs. Hays,” he intoned, “that what brought you to Sanus was your desire to screen for birth defects, and your religious misgivings about abortion? Not that you had seen something in [he mass media about how you could have a supersmart kid genetically programmed to get ahead?”

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

The trap was set. Coleman turned to his video disc machine and searched the audio track for “Hays/abort!” Suddenly, with a click of the mouse, a younger and flashier Mrs. Hays loomed on the big courtroom monitor, swathed in cashmere and fIaunting a big diamond. The video was from the year 2000, and Mrs. Hays and her then-husband were undergoing the initial client screening session that had become part of their video contract with Sanus.

The Sanus counselor carefully explained that the company could guarantee nothing except that its embryo-screening technique had proven effective in tests in Poland, Hungary, and China in identifying embryos with (and without) detectable defects or disease-prone genes. Early results also suggested that the Sanus process could identify embryos that were relatively likely to have certain positive attributes, including height.

“The company makes no claim,” the Sanus counselor said, “that any of its test results have any bearing on intelligence. We are constrained to advise you to disregard media reports suggesting that the Sanus process can identify embryos likely to be exceptional in certain specific components of intellectual aptitude: The regulatory authorities have not found the process to be effective for that purpose. And in any event, intelligence is far too multifaceted a phenomenon to be gauged with precision by any gene test.”

The counselor also warned that while Sanus had no reason to believe that embryo selection would increase the risk of having a child with health problems – and considerable evidence that it would decrease that risk – this was not a sure thing; the process was too new for long-range test results to be available.

The on-screen Mrs. Hays evinced little interest in all this. “Look,” she said, “let’s get on with it. Save your disclaimers for the welfare mothers. I know what I’m doing. I went to Princeton and Stanford Law School, and I want a healthy kid with enough brains to do what l did. I’m paying you people to tell me which embryo has the best shot. I’d rather get an abortion than raise my child to be a waitress or a janitor or a nurse or something.”

The waitress and the nurse on the jury listened impassively as Tilton Coleman shut ofT the video image and mopped up. “Isn’t it true, Mrs. Hays,” he asked in a voice so soft that jurors had to strain to hear him, “that you were warned there were no guarantees? Isn’t it true that you went into this with your eyes open? Isn’t it true that you wanted an Ivy League baby so bad that you would have aborted any fetus that didn’t meet your standards?

“In fact, Mrs. Hays,” Coleman added, “you did once have an abortion, didn’t you, after being told your fetus might be of ‘low-average intelligence”? That was back in 1998, wasn’t it, before you first came to Sanus?” Mrs. Hays didn’t answer. Perhaps she was thinking of the next video (the one of her deposition) that Coleman was ready to call up with another click of his mouse.

Strong stuff. As Sanus chairman Kerney watched from a jetliner backed up above Rio de Janeiro, he appreciated Coleman’s foresight in insisting that all client meetings in the U.S. be scripted, videotaped, and incorporated into video contracts to provide unassailable evidence of informed consent.

And as Belli watched her witness self-destruct, she cursed herself (according to a source close to the plaintiffs team) for having assumed that a Stanford-trained lawyer like Sharon Hays would have had the sense to review her video contract in the on-line case file – as Belli had urged her to do – before taking the stand. “Even the space-cadet profs at Yale taught us not to get caught contradicting ourselves,” Belli later quipped to a colleague, “and they knew a whole lot more pop sociology than law.”

‘Smartkid’ and ‘Homemade Eugenics’

But most of the mothers were not so easily discredited as Sharon Hays. And some of the early Sanus advertisements had been less judicious than its counseling sessions. Belli had had a field day with one ad, which Coleman had first seen on CNN-Financial in March 2000, while channel surfing during a lunch break in a trek across the Kumbu Glacier, en route to the Everest Base Camp. “Want your child to be healthy?” the ad began. “Want her to be genetically ‘dressed for success’? At Sanus, we can’t guarantee you brilliance. But we can promise you the pick of your own litter. The Chinese are doing it, The Japanese are doing it. Shouldn’t you be doing it.?”

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtro…

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

BLAMING THE MOMS

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

BLAMING THE MOMS

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

‘Smartkid’ and ‘Homemade Eugenics’

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

And those kids! Belli had piped them in live from their homes, captured by hidden cameras as the jury watched on the big courtro…

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

BLAMING THE MOMS

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

‘Smartkid’ and ‘Homemade Eugenics’

But this time the best Coleman could do was a hung jury. After three days, it came in hopelessly deadlocked 4 to 2 for the plaintiffs.

“MAKE IT PAY”

BLAMING THE MOMS

“Besides, there is no allegation that we did anything at all to cause the maladies from which these kids suffer. We have never changed the genetic makeup of a single embryo. And no serious claim is advanced here that our testing process harmed any embryos. The only claim is that the parents chose certain embryos based on particular data that we had advised them to ignore.

“That’s right,” she responded between sobs. “All I wanted was to give my baby the best chance I could of being healthy and happy in this world.”

SPRINGING THE TRAP

“In fact, Mrs. Hays,” Coleman added, “you did once have an abortion, didn’t you, after being told your fetus might be of ‘low-average intelligence”? That was back in 1998, wasn’t it, before you first came to Sanus?” Mrs. Hays didn’t answer. Perhaps she was thinking of the next video (the one of her deposition) that Coleman was ready to call up with another click of his mouse.

‘Smartkid’ and ‘Homemade Eugenics’

Cute. Too cute by half. Especially the coda: “Dial 1-800-SMARTKID.” Colelman dialed Kerney instead, reaching him via personal communicator at Michael Milken’s casino in Havana. The lawyer alternately cursed and gasped for breath – at 17,000 feet, cursing takes a toll – as he demanded that Kerney “pull that B.S. ofT the air right now,” one party to thc conversation recalls with a chuckle. Kerney was almost as horrified by the ad (which he had not seen) as Coleman; he pulled it and fired the agency the next morning. Sanus – already besieged by ambitious parents like Mrs. Hays – did not need to oversell itself, let alone do it so tastelessly.

A lawyer’s work is never done. But in this case, it was done a bit too late. Despite its brier shelf life, the 1-800- SMARTKID ad had brought a quick slap from the Federal Trade Commission and made Sanus a lightning rod for the growing criticism of “homemade eugenics,” in the phrase coined by Robert Wright of the old New Republic.

It also served as a mortar shell in Marjorie Belli’s courtroom arsenal. Belli skillfully wove it together with the causation theories of her “junk science experts,” as Coleman called them, whose testimony was piped in from Sri Lanka and Miami. This evidence, and the testimony of Dr. Samuel Martin – the disgruntled former employee who accused Sanus of covering up evidence that embryos selected for the “smart gene” were unusually susceptible to OCD – got Belli’s case to the jury.

Belli had persuaded U.S. district judge Sally Lamar Ellis to try a sampling of nine cases, so as to resolve the threshold question of causation, and to set the stage for possible certification of a class action and facilitate settlements of the 300 other cases waiting in the wings.

DOING WELL BY DOING GOOD?

This sort of battle was hardly what Coleman had had in mind when he had agreed in 1997 to help his old friend and college roommate Regan Kerney launch his pioneering biotech venture. Kerney and Coleman had wanted to do well, but also to do good. And they have, as they see it – by enabling would-be parents, without the trauma of amniocentesis and abortion, to improve their chances of having babies without defects or serious disease genes, and maybe with a leg up in key components 01″ innate intelligence – although the company cannot make the latter claim publicly without gelling in trouble with the Food, Drug, and Biotechnology Administration (FDBA).

The concept was as simple as the science was sophisticated: Instead of making babies the old-fashioned way – and praying for a healthy fetus – parents could improve their odds by mating the man’s sperm with the woman’s eggs in vitro to create ten or (after egg-cloning had been perfected in 2004) 100 pre-embryos. Each embryo’s genetic materials would then be tested and analyzed, using a technique called ReproChoice that Kerney developed and patented soon after leaving the Human Genome Project. The tests wouId screen for detectable defects (such as Down’s syndrome) and serious disease genes, including cystic fibrosis, Alzheimer’s disease, Huntington’s disease, ataxia, Tay-Sachs disease, sickle-cell anemia, hemophilia, and various cancers; they would also identify embryos with genes that appeared to carry exceptional endowments of certain desirable traits, including height, motor skills, and freedom from undue shyness. Using the Sanus test results, couples choose which embryos to have implanted in the mother’s uterus and brought to term.

From the start, Sanus’s cachet, and its profits, have derived in significant part from the publicity suggesting that its process call identify “smart embryos.” While FDBA regulations prohibit Sanus 1″rom claiming that on its own behalf, the company says it cannot stop clients from using its raw test data about each embryo – which Sanus is contractually obliged to give to clients – to identify any embryos with the sequences of genetic code that media reports have associated with “smart embryos.”

That unfortunate phrase was coined by Kerney himself, in a controversial article he coauthored in 1997, shortly before leaving the Human Genome Project to found Sanus. The article posited correlations between key attributes of innate intelligence – notably memory capacity and spatial conceptualization – and·the presence of particular sequences of genetic code at specific locations on an embryo’s (or an adult’s) fourth and fourteenth chromosomes.

Initially dismissed by the scientific establishment as recklessly speculative, Kerney’s “smart embryo” hypothesis has gained some notable adherents over the years. And it became a media sensation a decade ago, when Newsweek put Kerney on its cover under the headline, “This Man Can Bring You a Healthier Baby. Can He Bring You a Smarter One Too?”

By then, Sanus was up and running, thanks largely to Kerney’s development and patenting of ReproChoice, the diagnostic technique that made embryo screening workable on a mass basis by leapfrogging the more primitive PCR gene-testing technique. ReproChoice enabled Sanus to zero in inexpensively on significant sequences of genetic code, including those present in disease-prone embryos and in so-called “smart embryos” alike.

Kerney knew, of course, that there was no way the FDBA would allow U.S. marketing of ReproChoice based on his still-speculative “smart embryo” claims. But Sanus did win interim FDBA approval to market it as a tool for identifying defective and disease-prone genes. That was in late 1999, after the short-range human test results had come in from Poland and Hungary. By then Sanus had a booming business overseas, including multimillion-dollar contracts with the Chinese government and a government-sponsored corporation in Singapore. And by 2001, more than 200,000 Chinese embryos selected through the Sanus process had been implanted and brought to term.

The breathless media reports about “smart embryos” have long been fanned by the claims of the governments of China and Singapore that embryos selected through the Sanus process were growing into gifted toddlers-almost all of them above average in IQ-with a remarkably high incidence or mathematical geniuses.

QUALMS AND ASSURANCES

Tilton Coleman was principal outside counsel for Sanus from the start. His friend Kerney wouldn’t have it any other way. Although Kerney could not persuade the lawyer to leave his career as a rising star at Munger, Tolles to help run the company full time, Coleman did agree to be vicc-chairman of the board. Kerney’s most trusted confidant, he handled the company’s major litigation, while farming out FDBA and patent work.

Coleman makes no secret of the fact that a part of him had misgivings at first about Kerney’s enterprise. It was the same part of him that had always been uneasy about abortion. Coleman had asked Kerney, “Aren’t you tampering with nature, or playing God, or interfering with the Darwinian process, or all three? And what about the nine [now 99] embryos that get discarded for each one that gets implanted – aren’t those potential human lives too?”

Kerney’s answers went something like this, he recalls:

“My process will improve on nature without perverting it, just like vaccinations to protect kids from disease and every other step in human progress since we started lighting fires. If God didn’t want us tampering with nature, he could have stopped us long before now.

“The embryos we help parents select will he no less natural than those produced through good, old-fashioned sex. All we’re doing is improving the odds of putting one of the healthier eggs together with one of the healthier sperm, so that the baby will have a better chance of fitness, survival, and, yes, success in life – the things every parent wants for her children. Why should couples have to take a shot in the dark on which of a zillion sperm, and which of a zillion eggs, will get to the front of the line?

“As for the discarded embryos, well, taking a morning-after pill is more like stopping a potential human life than my process is. The pill often comes in after an egg has been fertilized by stopping the natural process of implantation in the uterus. All I’m going to do is take some sperm and some eggs, put them together, and help people choose which ones to implant.”

Kerney’s last argument was more personal: “Look, Big T, I’m sure going to use embryo screening when I’m ready to have kids – and if you want your own kids to have the best shot you can give them at healthy, happy lives, you’Jj do the same. Think about it.”

Coleman thought about it, and signed on. He still broods about whether the company will be driven by the march of science and the pressure of competition down the slippery slope toward ushering in some Huxleyan brave new world of designer babies, by using genetic engineering to go inside embryos and alter them.

Sanus will soon have to make a major investment in genetic engineering of embryos, if the rapid progress of Stanford’s Small Mammal Open Genome Reconfiguration Initiative (SMOGRT), better known as the Supermouse project, is any guide. The alternative would be to concede the cutting edge of the technology to other companies that won’t be fastidious about the risks and ethics of doing so, like the rapidly growing Genome Enhanced Neurotransmission Improvement Enterprise (GENIE). Nobody who knows Kerney doubts his determination to move forward.

While Coleman appears troubled by that prospect, he is comfortable with what the company has done so far. Or so he says.

MAKING IT BIG, WITH A SOCIAL CONSCIENCE

Salius was so hot by 2003, when it went public that it was the year’s fourth-biggest IPO. Suddenly chairman Kerney, with 51 percent of the stock, was worth more than $200 million on paper; vice-chairman Coleman’s 5 percent was worth a cool $20 million.

Not bad for two guys who had been known as “the odd couple” when they had roomed together at UCLA in the late 1980s – Kerney, the pudgy science-nerd son of a Sillicon Valley software engineer, whose oddly timed, high pitched giggles made him seem a bit daft, and Coleman, the star-halfback from South Central Los Angeles, who graduated magna cum laude after infuriating his coaches by cutting practice to finish his senior thesis.

You don’t get rich by giving your product away. Sanus charges regular customers between $10,000 and $70,000, depending on the number of embryos tested. For this and other reasons the company has long been attacked not only by the right-to-life and natural-baby movements, but also by some liberal and populist critics, who envision a dark scheme to entrench a biosocial caste system by catering to rich people striving to give their embryos a prenatal jump on the poor and the middle classes.

On Coleman’s advice, Kerney blunted such criticism by launching the company’s pro bono publico and diversity programs, which brought Sanus a lot of goodwill and, it develops, a lot of the lawsuits now besieging it, like the one by Nancy and Mary Kendall. Under the pro bono program, Sanus provides its embryo screening service without charge to one indigent client for every three paying clients it serves. Under the diversity program, the company also gives 20-50 percent discounts to all “disadvantaged minority group” members – including people of color (defined to include African-Americans and Latinos, excepting those of Spanish or Cuban ancestry), people with disabilities, and gay women-regardless of financial need or hardship.

The support this policy won from civil rights leaders along with backing from free-market advocates and competitiveness mavens concerned about the “genetic challenge” from the Far East, was a significant factor in the November 1999 interim decision by the FOBA to find ReproChoice safe and effective for use in detecting certain defects and disease-prone genes.

The FOBA’s approval was contingent on adherence to the rigorous informed consent procedures that Coleman had devised for Sanus, and on the company’s agreemcnt to disclaim clearly and prominently any ability to test embryos for any aspect of native intelligence. The FDBA has credited the company with scrupulous adherence to these conditions, except for some episodes involving overly zealous salespeople who were later dismissed.

Sanus also won approving editorials from The New York Times and others by discouraging clients (not always successfully) from choosing embryos for genetically conveyed traits, including eye and skin tones and nasal breadth, that Kerney deemed frivolous, because irrelevant to health, well-being, and capacity for productive activity.

But critics, now led by plaintiffs attorney Marjorie Belli, have accused Kerney of not-so-subtly implying agreement with the extravagant “smart embryo” claims in media interviews and on-line discussion forums, and by failing to denounce such claims (including Kerney’s own 1997 article) clearly as false.

TILTON COLEMAN’S RISING STAR

As Sanus was taking off so was Tilton Coleman. Telecommuting most of the time from his home near Santa Fe, he developed an impressive stable of clients, becoming both the nation’s top biotech defense litigator and a leading exemplar of the new breed of old-fashioned generalist counselor. With his understated charm, his athletic bearing, his air of sincerity, and his flair for making complex scientific explanations understandable to juries, he racked up a string of big wins.

Coleman was making his mark just as the late, unlamented era of hardball litigation was drawing to a close. With the federal judiciary leading the way, the discovery process was radically streamlined. Sweeping obligations to make full disclosure of all relevant facts at the threshold of a lawsuit were imposed on lawyers and litigants, with tough penalties for noncompliance. And strict limits were placed on the number of depositions, which had previously been used largely to fish for information that the rules now required to be surrendered up front.

The courts had also shortened trials dramatically, especially by allowing (with mutual consent) “movie trials” in which witnesses’ testimony was filmed, together with opposing counsel’s objections and cross-examinations, long before the jury was impaneled. Each side would then submit the videotape of its case to the judge, who would rule on objections and delete evidence that the judge considered – with benefit of a video overview or the entire case-to be or marginal or cumulative value.

A jury would then be impaneled and shown the edited videotape, supplemented by any witnesses whom the lawyers preferred to present in person. Many cases that would once have taken more than a week to try could now be presented in a few hours, and witnesses from around the world could testify without ever leaving their hometowns.

(Belli declined to consent to a full movie trial in the Sanus case. She did agree to Coleman’s using videotaped depositions to present the testimony of Kerney and some other key San us witnesses. Coleman now admits that this may have been the wrong trial for that procedure: While his corporate witnesses appeared remote and rehearsed on the big courtroom monitors, Belli’s suffering parents shed their tears live and in three dimensions.)

One result of all this was a huge increase both in the number of speedy settlements and in the number of civil trials. So Coleman was able to try more than 60 big cases between. 1996 and 2006, a record that would have been impossible for the previous generation of litigators.

Coleman also handled his own appeals. He has argued three of them in the U.S. Supreme Court, winning two, including the landmark decision in Sanus v. FDBA, in 2004.

The case had its roots in the Republican National Convention or 2000, when presidential right-wing candidate Patrick Buchanan inflamed the delegates by launching into a passionate denunciation of Sanus, along with abortion clinics and others involved in embryo testing and reproductive choice. After President Cheney won that year’s election (thanks to his now-famous deals with Buchanan and H. Ross Perot), Cheney packed the FDBA with right-to-natural-lifers. The agency lost no time withdrawing its approval of ReproChoice, in an effort to force Sanus out of the U.S. market. Meanwhile, six states, led by Pennsylvania, outlawed use of embryo screening for any purpose other than detection of serious birth defects, and Louisiana outlawed it altogether.

Coleman kept ReproChoice on the market throughout the litigation. First he wielded the Administrative Procedure Act to stymie the Cheney FDBA for over a year. Then he fought the case through the D.C. Circuit, where Judge Theodore Olson tipped the scales in favor or Sanus. And ultimately Coleman beat solicitor general Paul Cappuccio in the Supreme Court, after an oral argument in which he was one of the first to take advantage of the new high court rule allowing advocates to display video testimony and other critical portions of the record on courtroom monitors.

SUPERBABIES MEET SUPREMES

The decision was immediately hailed as the Hoe v. Wade of biotechnology. Chief Justice Kathleen Sullivan’s opinion, joined by the three other Clinton appointees along with David Souter and 95-year-old Harry Blackmun, borrowed heavily from Coleman’s brief:

“If the liberty, dignity, and personal autonomy protected by due process, equal protection, and the Ninth Amendment mean anything,” Sullivan wrote, “surely they mean that a woman has ‘the right to define [her] own concept or existence, of meaning, of the universe, and of the mystery of human life [quoting the 1992 decision in Planned Parenthood v. Casey]. And surely that right is broad enough to encompass a woman’s right to choose which or her own embryos, or which or-a consenting donor’s embryos, she believes would have the best life prospects. It is not within the power of the state to tell a woman she cannot choose which embryo to have implanted in her body. Nor can the state seek to ban such choice indirectly, by outlawing commercial use of the technology that makes embryo screening possible at reasonable cost. We also reject, as a transparent pretext, the government’s claim that it is acting within the scope of its lawful power to ensure that medical devices be safe and effective.”

Justice Antonin Scalia (joined by Clarence Thomas) issued one or his patented poison-pen dissents, which columnist George Will reproduced almost verbatim in his regular “TRB” feature in The New Republic and American Spectator. Reading from the bench, Scalia growled: “The Imperial Judiciary truly reigns supreme when people are permitted promiscuously to play tricks with Mother Nature, am I to disregard the expert judgement or the federal agency tasked with evaluating safety and effectiveness, not because the body politic has chosen to enter this brave new world or genetic manipulation, but because six judges have decided that we must enter it – and by order of the framers or the Constitution! These six judges are, or course, unelected, unaccountable, and – one at least hopes – far past child-bearing age themselves.”

Scalia glowered down the bench at the eternal Blackmun.

Experts never could agree whether to score the votes 6-to-3 or 7-to-2, because Justice Sandra Day O’Connor’s convoluted opinion concurring and dissenting (which Scalia ridiculed as a “a new peak of irrationality”) left it unclear how she should be counted. Citing “our federalism,” O’Connor dissented separately in a 6-to-3 companion case, in which the majority swept aside all of the restrictive state laws.

TORT CLAIMS, RIGHT ON SCHEDULE

Whatever the count, Sanus was in the clear-until the tort litigation hit. It began in 2005 with three suits that Coleman says arrived “right on schedule,” just when he had predicted. By then, the Sanus process had been used to select 45,000 embryos in the U.S. alone, and large numbers of the resulting children were turning 5 years old. In any population that large, it was inevitable that hundreds would develop serious health problems. It was equally inevitable, in the U.S., that many parents would cast about for people to blame, and to sue, and that plaintiffs lawyers would use on-line bulletin boards to scour the globe for more “victims.”

All this was part of the price of admission to the marketplace. What Coleman had not foreseen was the power of pack journalism to turn a trickle of claims into a flood so large that it now threatens the company’s survival. The dam broke when Time published a cover story – head-lined “Sanus-or lnsanity? A Biller Nightmare for Parents Casts a Cloud Over Embryo Selection” – spiced with dark tales by unidentified “former executives” that Sanus had concealed known risks. Soon every on-line network this side of Shanghai was humming with members of the plaintiffs bar exchanging evidence and posting video testimony for others to use.

The most explosive charge by the “former executives” was that Kerney had suppressed data from China suggesting that a disproportionate percentage or embryos that had been selected for their “smart” genes had ended up with serious neurological problems, in particular OCD. A tidal wave of copycat pieces echoed through the mass media.

Kerney knew that Time had in fact talked only to one “former executive”: Dr. Samuel Marlin, the brilliant young physician-scientist who had gone off the reservation in 2003. A surprising number of the Chinese babies had been reported to have OCD, and Martin had theorized that the “smart”‘ genes that were identified by ReproChoice might somehow be paired with genes carrying a predisposition to OCD.

But Kerney, the company’s other top scientists, and the FDBA staff – from which nothing had been “suppressed” – had all studied Martin’s memos and concluded that the methodology underlying the Chinese data was unreliable and that Martin was engaging in speculation rather than scientific proof. Martin stuck to his guns, quitting in 2003 and accusing the company of covering up his findings. He joined the Biogenetic Defense Fund, where he has become a leading critic of the biotech industry and perennial expert witness.

The studies in the past five years have generally upheld Sanus’s claim of effectiveness in screening embryos for detectable defects and disease genes, and of having no known side effects. And Coleman presented an impressive battery or experts at the trial who testified that virtually all of the problems or the babies whose families had sued the company – the schizophrenias, the depressive episodes, the cancers – were no more prevalent among Sanus kids than in the population at large.

SMOKING GUN?

But one critical statistical anomaly has revived Martin’s charges and lent credence to the tort claims. An interim survey of 5,000 San us clients in the U.S. and Europe, completed in 2007, showed that 3.5 percent of the children whose embryos had been selected by parents after having been identified as having “smart” genes had symptoms of OCD by the time they were 6 years old. That was more than twice the incidence (1.6 percent) or OCD in the general population.

“Wow,” Marjorie Belli recalls saying to herself when got the study last July through the pre-trial disclosure process. “This is the smoking gun.”

Was it? At the trial, Coleman’s experts argued that the study proved only that the incidence of OCD in the general population had been grossly underreported, because most people whose children have relatively mild OCD never mention the symptoms or get them diagnosed. The parents in the Sanus survey, on the other hand, had been questioned so carefully about any problems their children might have that many or them had reported concerns that they had never mentioned to their own doctors.

Inside the jury room, an initial poll showed all four women favoring the plaintiffs, with the two men favoring the defense. Both Belli and Coleman had anticipated such a gender breakdown, and had used their peremptory challenges accordingly; neither had objected to the other’s apparent violation of the Supreme Court’s ban on gender based peremptories.

Lydia Woodward, the forewoman, used the trial discs with which the jurors had been provided to drive home her points, according to two other jurors. She showed dozens of clips in which San us witnesses seemed to repeat words like “disclaimer” and “statistical significance” like mantras, juxtaposed with Kerney’s suggestions, in two ill-advised television interviews, that he expected eventually to prove the effectiveness of the Samus process for choosing “smart embryos.”

But the 4-to-2 split held firm through three days of often angry deliberation; every time Woodward played her favorite clips, the male holdouts would reply the Sharon Hays video-cross or the high points of Coleman’s closing. Two of the women later accused these men of “a bullying altitude,” “inappropriately directed laughter,” “gestural harassment,” and hostility to all efforts to seek “empathetic consensual harmony.”

After Judge Ellis had declared the mistrial and the courtroom had emptied, Tilton Coleman’s wife and mother embraced him in the hallway. A little boy was with them, about 6 years old. The boy was rubbing his hands together, rubbing and rubbing – three times left over right, three times right over left. The hands were raw and red. Coleman watched for a moment, his face a knot or concern. Then he picked the boy up and Jollied him. The boy giggled. The hand-rubbing continued.

A reporter hovering nearby caught the lawyer’s eye. “I didn’t know you had a son,” he ventured lamely. The boy looked up, trying to muster a smile. Still rubbing.

“Now you know,” Coleman said slowly. “Now you know.”

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