Epstein Becker’s Stuart Gerson on the Stevens Case and Wayward Justice
24 Corporate Crime Reporter 3(12), January 19, 2010

The prosecutorial misconduct by Justice Department prosecutors in the Ted Stevens case and other recent white collar cases sticks in the craw of a whole generation of white collar lawyers.

Earl Silbert.

Bob Bennett.

And Stuart Gerson.

A former federal prosecutor, Gerson is now a partner at Epstein Becker & Green.

“We knew the rules,” Gerson told Corporate Crime Reporter in an interview last week. “We knew – even at a young age – that we had tremendous power.”

“But the most satisfying thing was being able to say no to a case. This is a case that we weren’t going to paper. This is a case that we were going to break down and not pursue as a felony. We are going to try the case on the home turf of the defendant. We are not going to play games trying to judge shop or forum shop.”

“Here’s all of the evidence in a timely fashion. I don’t mind going in with one hand tied behind my back, because we are going to beat you – we are going to win.”

“I had a pretty good record as a prosecutor. What ever side I’ve been on, I’ve always felt I could deal with the truth. And it doesn’t bother me that both sides know what it is. And I have always felt that. It was the way I was taught. It was the way that everybody of my era was taught.”

“We knew those things and we played by the rules. When investigators were working for us, the object was not to make a case, but to find out the facts and then make the right decision.”

“Saying no was satisfying. And the senior people in the Department stood behind you. If they had suggestions as to things you ought to be doing, you did them.”

“If you had witnesses who were coming apart, or there was a sufficient level of exculpatory evidence, you blew out the case. If there was something that put things into balance – and you still believed in the case – you didn’t hide it.”

“That to me has always been the rule. Eric Holder is a little younger than I am. But he comes from that tradition. He believes that.”

Last week, the Justice Department issued three memos guiding prosecutors in dealing with exculpatory evidence.

Gerson said it’s a good start, but it’s not good enough.

“They did the right thing,” Gerson said. “But it’s not enough. There is a working group formed under the aegis of the American Bar Association. It’s similar to the one we had with regard to attorney client privilege. That one involved the ACLU, the ABA, the Chamber of Commerce. It was across the board. We are seeing a similar effort with regard to disclosure of exculpatory information. And it even involves judges. There are several federal judges and a number of state judges who are involved in this working group. And it very well could lead to legislation.”

“David Ogden’s memos was an effort to head off potential legislation,” Gerson said. “The pronouncement in these Ogden rules are helpful. They instruct the prosecutors to disclose exculpatory information in a timely fashion. But they don’t go far enough. And the reason is this. The policy differentiates between information that is purely exculpatory – information that goes to the elements of the offense and that suggests that the defendant hasn’t committed the crime.

“That is distinguished from where a witness contradicts himself and provides impeachment material. In that case, the prosecutors are instructed to govern disclosure by the Jencks Act.”

“Theoretically, if the witness is not going to be called, the contradictory information may never be disclosed. That is a weakness in the policy and it needs to be addressed.”

“The Stevens case is a classic example of showing why contradictions in witness interviews of a material nature are just as exculpatory as other evidence.”

“There is more to do. I certainly applaud what the Department has done. It is an attempt to address some of these issues. But it doesn’t go far enough.”

[For a complete transcript of the Interview with Stuart Gerson, see 24 Corporate Crime Reporter 3(12), January 18, 2010, print edition only.]



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