Skadden Arps Partner Richard Marmaro on Prosecutorial Misconduct and Corporate Crime

Skadden Arps partner Richard Marmaro says if you don’t have time to read the entire 500 page independent counsel’s report on how the Justice Department blew the case against former Senator Ted Stevens – just read one paragraph on page 98.

“The paragraph that appears on page 98 of the report recounts a remarkable pre-trial exchange between the prosecution team and two of the highest ranking officials in the Department of Justice’s Criminal Division,” Marmaro says. “In a discussion of the Jencks Act – the law that makes the government produce witness statements to the defense in a criminal prosecution – the prosecution team indicated that, based on a hyper-technical reading of Jencks, it would not be producing FBI reports of witness interviews to the defense, contrary to Department practices. The Department of Justice officials not only approved, but one said, ‘We have to play our cards close to the vest on this one.’”

“Well, we all know how that turned out. The Stevens prosecution team didn’t just play its discovery cards close – it dealt from the bottom of the deck.”

Stevens lost his last re-election bid in the wake of a jury’s guilty verdict against him in 2008.

A court later threw out the guilty verdict on grounds of prosecutorial misconduct. But Stevens’ reputation had been destroyed. Stevens died in a plane crash in 2010.

Marmaro has won two criminal cases based on prosecutorial misconduct – cases involving the Brocade and Broadcom prosecutions.

Marmaro talks about “the misguided prosecutorial mindset.”

What’s that?

“It’s the mindset to win cases at all costs, rather than to do justice,” Marmaro says.

“The Department of Justice should be just that – the Department seeking justice,” Marmaro told Corporate Crime Reporter in an interview last week. “Too often, it becomes the Department of the Prosecution – where they lose sight of the fact that their mission is to do justice. That means to vigorously prosecute those who are guilty. But in cases where there is evidence indicating innocence, to make sure that evidence comes to light and that the jury weighs both sides.”

How widespread is prosecutorial misconduct?

“It’s impossible to say how widespread it is,” Marmaro says. “But it rears its head often in high profile cases. And that suggests that it is not just in high profile cases.”

“You can’t give a percentage on this. In my experience, the vast majority of prosecutors do their jobs ethically and honorably. But it is not an isolated prosecutor who crosses the line.”

Younger prosecutors pose more of a problem.

“More seasoned prosecutors – and more seasoned lawyers – have perspective,” Marmaro says. “And that perspective is important when you try a case, particularly when you try a case for the government.”

“My experience with younger prosecutors is that they are more apt to cut corners and to be interested in the end result of winning a case rather than making sure that things are done properly and that justice is done.”

In prosecutorial misconduct cases, how does the misconduct come to light?

“Misconduct doesn’t just jump out and say – I’m here, come and get me, and take me to the court,” Marmaro says.

“Misconduct comes to light generally by hard work by defense lawyers ferreting it out. And by an open minded judge who is willing to give the defense some leeway in establishing it.”

“Very often defense lawyers just miss a situation that could lead to valid claims of prosecutorial misconduct – either because they are too busy to have seen what happened, or for whatever reason they are not willing to take on the government with regard to something that is really quite personal.”

“To allege misconduct by a prosecutor is to say that that prosecutor did something wrong. And there are unfortunately some defense lawyers who are unwilling to do that – in an affidavit, in a publically filed document, in a courtroom setting.”

“How it comes to light is generally by vigorous work by strong defense lawyers and by an open minded, fair minded judge who is willing to give the defense an opportunity to establish it.”

How did the prosecutorial misconduct come to light in the Stevens case?

“That was because of a great defense team at Williams & Connolly led by Brendan Sullivan,” Marmaro says. “They were vigilant in exploring what documents had been produced, what documents had not been produced and why. And then ultimately in talking with a retired FBI agent who explained what had happened. There was a series of events that came to light when a vigilant defense team would not take no for an answer.”

[For the complete transcript of the Interview with Richard Marmaro, see 26 Corporate Crime Reporter 16, April 17, 2012, print edition only.]

 

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