Tag Archives: Legal Ethics

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Fighting Crime With Lawlessness

by Stuart Taylor, Jr.

"If [police] feel that someone’s perched on their shoulder watching every action they’re going to take, you’re not going to get the kind of aggressive law enforcement that you need.

 -Attorney General Richard Thornburgh, on NBC’s "Meet the Press." March 17.

Thornburg’s point was that Congress should license police to present a wide array of illegally seized evidence in criminal trials without being second-guessed by judges.

His timing betrayed a revealing blindness to what can happen when "aggressive" police think they have free rein: Two weeks before, a gang of 15 white Los Angeles cops (including those who only stood and watched) beat a black man almost to death, savagely pounding him with batons and kicking him in the head as he lay on the ground. Some boasted about the beating later through the police computer system, apparently without fear of provoking disapproval from colleagues or superiors.

But for the fortuitous presence of "someone perched on their shoulder"-a hidden bystander with a video camera-it’s a safe bet the officers would have gotten away with their crime. The initial police reports were full of lies and probable lies, including a supposed confession by the victim that he "remembered fighting with officers."

If the Bush administration has its way with Congress, officers like these-and others who eschew brutality but are often tempted to cut legal corners-will have a strong incentive to trample citizens1 rights in search of evidence.

The administration wants Congress to "reform" the longstanding rule excluding evidence obtained in violation of the Fourth Amendment ban on "unreasonable searches and seizures."

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Courting Disaster: Perfidy and the Press

by Stuart Taylor, Jr.

The press has made a sorry spectacle of itself at the Supreme Court this year and may soon take a drubbing for it.

In two big pending cases, many of the nation’ largest news organizations have contended that the First Amendment licenses journalists to engage in grossly unethical conduct.

Here’ hoping that these wrongheaded and myopic claims do not provoke the justices-some of whom have been itching for a chance to stick it to the press-into an overreaction that could do the First Amendment lasting damage.

In last week’ oral argument in Cohen v. Cowles Media Co. No. 90-634. Minnesota’ two largest newspapers told the Court that the First Amendment means journalists can betray their sources whenever they please.

The papers are backed up by some of the nation’ largest news organizations, which have long claimed that the same First Amendment requires courts to shield their sources from subpoenas by honoring their ironclad promises of anonymity.

The press’s chance of having it both ways-of winning a right to breach promises of anonymity to sources without damaging its claimed right to protect them-approaches zero.

The looming danger is a possible holding that the First Amendment has nothing to say about reporters and their sources-which would destroy the fragile principle that currently protects sources from court-ordered disclosure. That is one reason a number of First Amendment lawyers privately express horror at the press’s posture in the case.

The Minnesota newspapers say their right to publish the whole truth sometimes overrides their ethical duty to honor their promises. So it may, but only in rare cases-for example, if a source breaks his side of the bargain by falsely accusing others of the leak-and this is not one of those cases.

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We Call That Writing

by Stuart Taylor, Jr.

"Journalists doctor quotes and add colorful language to them all the time to spice up stories," H. Bartow Farr III told the Supreme Court on Jan. 14. "They have every right to do it. That’s what the First Amendment is for."

Outside on the courthouse steps, Farr’s client, New Yorker magazine writer Janet Malcolm, added this: "So I fiddled a bit with Jeffrey Masson’s quotes. So what? The man is a conceited fool. My quotes revealed the larger truth. That’s how we do it at The New Yorker. We are artists, not petty scribes.

"And so. what if I pretended to be his friend? That’s journalism. Every journalist … is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse."

Actually, that’s not quite what Farr said. Or what Malcolm said.

Actually, the quoted passages above are my words, not theirs-except the last sentence, which comes verbatim from a 1989 Malcolm article. And as far as I know, Malcolm made no statement on the courthouse steps at all.

I made up the quotes because I wanted to dramatize the wrongheadedness of the Malcolm-New Yorker defense, which is supported by many major news organizations.

But this much is true: If the Court upholds Farr’s arguments, neither he nor Malcolm nor The New Yorker could get to first base suing me for making up phony, offensive quotes and pretending that Farr and Malcolm had uttered them.

That’s because in my opinion-and my opinion would be all that mattered-my phony quotes roughly "convey the same meaning," to borrow Farr’s words, as other things that Farr and Malcolm have said.

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Greetings From ‘Love Land’

by Stuart Taylor, Jr.

It’s hard to quarrel with the federal government’s goal of stamping out child pornography, the creation of which often involves unspeakable crimes against small children. But some of the government’s tactics make you wonder.

Take the case of Keith Jacobson, a 57-year-old farmer who spent 20 years in the military, served in Korea and Vietnam, won the Bronze Star, then returned to his native Newman Grove, Neb., to support his aging parents. He spent 10 years there as a school-bus driver.

His record was unblemished except for a 1958 drunk-driving conviction. His weakness was an interest-perhaps latent, perhaps active-in pictures of nude boys.

In 1984. Jacobson purchased by mail two nudist magazines entitled Bare Boys I and Bare Boys II. The magazines depicted no sex acts and therefore were not illegal under the federal child pornography law. But federal agents who later busted the distributor on obscenity charges found Jacob-son’s name on the distributor’s mailing list.

Suspecting that Jacobson might hunger for hard-core kid-porn, the agents targeted him-though he had done nothing illegal-in five undercover sting operations over the next 29 months. Postal inspectors posing as the "American Hedonist Society and as individual porn buffs mailed him two membership applications with sexual-attitude surveys, seven letters, and two sex catalogs. The charade was part of a sting called "Project Looking Glass," run by the U.S. Postal Inspection Service.

Jacobson’s responses showed an interest in adolescent sexuality. But he took the bait only after he had been contacted 11 times. In 1987, he ordered a magazine, which was advertised as depicting "oral, anal sex and heavy masturbation" involving boys as young as 11, from the government-front "Far Eastern Trading Co., Ltd." of Hong Kong.

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CNNs First Amendment Hubris

by Stuart Taylor, Jr.

The 1971 Pentagon Papers case tested the right of the press to expose government duplicity about important public business without submitting to prior censorship.

Now comes the Noriega tapes case, which tests (among other things) the right of a news organization to thumb its nose at the judiciary-to flout a temporary restraining order by rushing onto the air a leaked tape almost devoid of serious news value.

The Cable News Network appealed the restraining order to the Supreme Court on Nov. 15. And leaders of the media establishment took to the barricades in full First Amendment regalia to champion CNN’s right to broadcast wiretaps of Gen. Manuel Antonio Noriega consulting with his legal team.

Well they should. The lower courts’ prior restraint on CNN set a worrisome precedent. But CNN’s conduct raises troublesome questions too:

Was it wise to escalate this fight by violating the order without waiting a few days for a decision on appeal? Did the public have such an urgent need to hear this unremarkable tape without delay? If so, why did you promote the tape for a full day before putting it on the air?

Were you driven by the need to expose government misconduct? Or by the urge to flaunt your scoop for purposes of self-promotion? Was it really necessary so boldly to risk provoking the first Supreme Court ruling in history to uphold a prior restraint on news reporting?

By the way, have you noticed that this is not the same Court that decided the Pentagon Papers case-that all but two of the justices who laid down that robust precedent against prior restraint are gone?

And have you noticed that the newspapers complied with temporary injunctions in the Pentagon Papers case until the Supreme Court overturned them?

News organizations ought to have a better journalistic reason than CNN had before inviting the creation of bad law by throwing down the gauntlet to the courts as CNN did.

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Wallachs Appeal From Rampant ‘Rudyism’

by Stuart Taylor, Jr.

"There are some things that happened at the trial that I find very bothersome," Judge Thomas Meskill observed during the Oct. 23 oral arguments in the appeals of E. Robert Wallach and two co-defendants.

"Bothersome” is putting it mildly.

The closer the three-judge panel of the U.S. Court of Appeals for the 2nd Circuit-looks, the more likely it is to throw the case out as a travesty-conceived in unchecked prosecutorial zeal, compounded by a patently unfair trial, and dedicated to the proposition that criminal statutes mean whatever a prosecutor says they mean.

Some former prosecutors have a word-"Rudyism"-to describe the brand of overweening prosecutorial hardball that flowered under former U.S. Attorney Rudolph Giuliani of Manhattan. This was a case of Rudyism run amok.

Wallach, the bumptious personal-injury lawyer from San Francisco who made a new career in the 1980s out of his friendship with Edwin Meese III, was convicted on fraud, racketeering, and conspiracy charges in August 1989. His 16-week trial, together with Rusty London and Wayne Chinn, centered on their work for the Wedtech Corp., the scandal-ridden, now-defunct Bronx defense contractor.

Wallach was clearly guilty of sleaziness in the first degree for shamelessly trading on his relationship with the former White House counselor and attorney general. That’s why Giuliani’s prosecutors bent so many laws and made so many deals to get him, after trying in vain to get him to turn on Meese.

But sleaziness is not a crime. Lots of people parlay it into wealth, power, and status. Wallach’s brand was strangely mixed with a kind of egomaniacal idealism and an ardent belief (at least at first) that Wedtech, like his pro bono work in San Francisco and his efforts to free Soviet Jews, was a noble cause. Indeed, in 1981 and 1982, the Bronx native represented the minority-owned (or so he thought) company for free.

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Mangled Sentence: Read It and Weep

by Stuart Taylor, Jr.

Robert Freeman did some insider trading. John Poindexter deceived Congress. Fred Hagler helped another guy sell 2.3 ounces of crack.

They have two things in common: None deserves to go to prison. Yet all probably should-for a few months-to deter others from doing what they did.

But that’s not quite the way it’s going to turn out. And the differing prospects of these three men shed an unflattering light on our system of justice and our society’s moral sense of proportion.

Freeman, former head of arbitrage at Goldman, Sachs & Co., was sentenced April 17 to four months (plus a $1 million fine) for seeking inside information about a pending takeover and using it to unload $500,000 in options.

Poindexter, convicted April 7 on five felony counts of false statements to Congress and obstruction of its investigations into the Iran-Contra affair, faces a theoretical maximum of 25 years.

But he will probably get two years or less-and maybe no prison time at all, like his co-conspirators Robert McFarlane and Oliver North.

Fred Hagler acted as middleman between a small-time drug dealer and buyers (who turned out to be undercover operatives), and attended the sale. He was sentenced in April to 20 years, without parole.

A 37-year-old father of three, he will be locked up until at least 2007, and that’s if he earns all possible good-time credits. But for an unusual break he received from the prosecution, Hagler would have faced a congressionally mandated minimum prison term of life without parole.

Courtroom of the Absurd

This for a doer of odd jobs who eked out a meager existence with his common-law wife and children in a Los Angeles ghetto, a man who was wiretapped asking a customer for a $60 loan so he could go "down to Toys-R-Us" to buy his little boy a birthday present.

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Client Cash Cows Sacred No More

by Stuart Taylor, Jr.

The flashily dressed young man walks into a defense lawyer’s office, seeking representation in a drug-smuggling case. The tastefully dressed lawyer notes that this sort of thing can get expensive. The young man smiles, opens his satchel, and dumps $20,000on the desk Cash.

Assume for the moment the lawyer can take the money. Should he-unlike, say, a doctor or a car dealer-also be entitled to refuse to tell the government whom it came from? Should he be permitted to ignore the federal tax forms that most businesses are required to file every time they receive more than $ 10,000 in cash?

The Internal Revenue Service and the Justice Department have started bringing court actions to force lawyers to name clients on these forms. Respected criminal-defense attorneys-like Gerald Lefcourt of New York-say that enforcement of the reporting requirements conscripts lawyers as "informants against their clients" in derogation of their ethical duties and, in many cases, of the attorney-client privilege and the Sixth Amendment right to counsel. Hundreds of lawyers have filed the forms with blanks in place of the payer’s name.

These lawyers warn that the new cash-reporting push-together with the government’s efforts under forfeiture laws to seize drug and racketeering money paid out as attorney fees-threatens to poison the attorney-client relationship and destroy the criminal-defense bar.

The best will be driven out, warns Lefcourt. They will go to big firms where they can labor to make the world safe for "companies that put cancer-causing agents in pajamas, and everybody will think they are great."

Lefcourt and his colleagues have a point. A prime reason for a vigorous defense bar is to deter the government from bringing criminal charges in the absence of strong evidence. The system works pretty well in that regard: The vast majority of defendants are proved guilty of something because few innocents are charged.

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Thrift Thuggery-Business as Usual

by Stuart Taylor, Jr.

Whoever…being a public official…directly or indirectly, corruptly…accepts…anything of value personally or for any other person or entity in return for…being influenced in the performance of any official act…shall be fined…or imprisoned for not more than 15 years, or both.

-U.S. Code, Title 18. §201(b)(2)(A) [bribery]

Whoever…being a public official…otherwise than as provided by law for the proper discharge of official ditty, directly or indirectly…accepts…anything of value personally for or because of any official act performed or to be performed…shall be fined under this title or imprisoned for not more than two Years, or both.

–U.S. Code, Title I8. §201tc)(l)(B) [illegal gratuity]

Charles Keating Jr. is that rarest of creatures in the world of political fund-raising-a man who publicly avows what everyone knows to be true.

The Arizona financial executive is now at the center of Senate and FBI investigations involving $I .4 million in political contributions he arranged for five U.S. senators and associated groups. These contributions were made before and after the senators put the arm on federal thrift regulators in 1987 on behalf of Keating’s now-insolvent Lincoln Savings and Loan of Irvine. Calif.

At a press conference last April. Keating said: "One question among the many raised in recent weeks had to do with whether my financial support in any way influenced several political figures to take up my cause. I want to say it in the most forceful way I can: I certainly hope so."

Keating’s contributions to the senators-including four Democrats with whom he. a conservative Republican, had no ideological affinity that might account for his generosity-were clearly things "of value."

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Legal Corruption, Congress Style

by Stuart Taylor, Jr.

The petty ethical transgressions that finally brought down House Speaker Jim Wright last week are a pimple on the nose of a body politic racked by the cancers of legalized corruption, moral laxity, and political cowardice.

Lancing the pimple does nothing to cure the cancers. Indeed, the unseemly haste with which Wright (D-Texas) was hustled overboard is one symptom of the political cowardice of many of his colleagues who are themselves steeped in the legalized corruption of honoraria, free trips, and campaign contributions from monied interests. They hope that the ravening beast of media fascination with the seamy side of congressional ethics can be sated by the ritual sacrifice of the speaker, along with the self-immolation of House Democratic Whip Tony Coelho (Calif.), the fund-raising prodigy who impaled himself on a messy $50,000 junk-bond investment.

But only those who cannot see the forest for the trees find anything uniquely shocking in Wright’s ventures down the slippery slope of sleaze.

The purging of the speaker and any others alleged to have violated the ethical rules will have been a largely empty and hypocritical exercise unless Congress does something about the kinds of graft that the rules allow.

As a legal matter, the case against Wright is quite weak on the main charge of violating House standards by taking $145,000 in alleged gifts (his Wife’s salary and the use of a condominium and a car) from his friend George Mallick, a Fort Worth developer, between 1979 and 1988, The rules bar acceptance of large gifts only from those with a more "direct interest in legislation" than Mallick seems to have had by virtue of his oil, gas, and real-estate investments. Distasteful as it may be for a House speaker and his wife to have a sugar daddy, there is no clear evidence that Wright ever used his influence to enrich Mallick.