Thursday, November 30, 2006
NYT: "Drag [our] reporters into court" where they can flout the law! We insist!
One of the most outrageous statements ever to appear in a newspaper was published in a New York Times editorial yesterday.
To demonstrate how outrageous, I'll cover some deep background, and then some that's more immediate.
Of all the movies ever made about the newspaper business, Alan J. Pakula's All the President's Men in 1976 was probably the single most flattering, with Robert Redford and Dustin Hoffman playing Bob Woodward and Carl Bernstein. Among the most memorable series of scenes were those of Redford/Woodward meeting with Hal Holbrook/Deep Throat in a shadowy, gloomy, eventually quite scary parking garage. And you may or may not remember this bit, which starts off with Woodward and Bernstein bemoaning getting scooped by the WaPo's archrival, the NYT:
The Times spread somewhat tentatively over a mailbox. A small headline is visible, with the words "Barker," "Liddy," and "Telephone" in some kind of order. WOODWARD and BERNSTEIN look at it the best they can.
BERNSTEIN: Goddammit —
WOODWARD: — see? —
BERNSTEIN: — I'm trying —
WOODWARD: — fifteen phone calls —
BERNSTEIN: — fifteen or more phone calls from the burglars in Miami to Gordon Liddy at CREEP —
WOODWARD: Why didn't we get that?
BERNSTEIN: Christ, and I even know somebody at the phone company —
WOODWARD: — you do? — with access to records?
As BERNSTEIN nods —
A LITTLE CITY PARK. A guy shells peanuts. BERNSTEIN hurries up.
BERNSTEIN: Why couldn't you have just dialed me from the office, Irwin?
IRWIN: 'Cause I'm not calling out from the phone company anymore — (drops his voice) — I think the place is bugged.
BERNSTEIN (taking some peanuts): So tell me about the Times article.
IRWIN: What do you want to know?
BERNSTEIN: No games, Irwin; give.
IRWIN (looks at BERNSTEIN): My big civil rights buddy — (shakes his head) — boy, if John Mitchell was after your phone records, would you be screaming.
Later in the movie, Woodward and Bernstein roust the WaPo's editor, Ben Bradlee, out of bed:
BRADLEE IN HIS DOORWAY IN THE MIDDLE OF THE NIGHT. It's a house with a lawn and from somewhere there is the SOUND of dogs barking.
BRADLEE: You couldn't have told me over the phone?
WOODWARD and BERNSTEIN moving up the walk to BRADLEE.
WOODWARD: We can't trust the phones, not anymore. Deep Throat says so.
(Emphasis mine.) I'm guessing that somewhere less than 0.01 percent of the New York Times' reporters have not seen this movie. I'm guessing that 95 percent of them have seen it multiple times. It's a movie made from a book, and both of them are taught in journalism schools; if there is a Holy Gospel of Journalism, it's "All the President's Men." And until he self-outed himself last year, Deep Throat was undoubtedly the most famous "confidential source" in the history of journalism.
Now I want you to imagine that you're an FBI agent. The date is either December 4th or December 14th, 2001. Your colleagues at the Bureau are still combing through ashes and body parts in lower Manhattan, and you're on your way to conduct a raid at the offices of what's ostensibly an Islamic charity organization, but which strong evidence indicates may actually be an operation to raise funds for terrorist organizations from within the United States. You're on home turf, baby — either in Chicago or Dallas, your pick. You're cinching down your body armor when a buddy hands you a copy of the late edition of the previous day's New York Times — and he points you to a story discussing the specifics of the raid you're about to make, including its target! You arrive at the raid scene to find not the startled terrorist-enablers with books and records and full-to-bursting computer hard drives still there to seize, but rather, the "charity's" lawyer calmly waiting there to greet you along with his clients, whose arms are crossed and whose faces wear the most smug, mocking expressions you've ever seen in your law enforcement career. All the wastebaskets are empty; the computers are unplugged; you see a mop propped in the corner, still dripping wet. And you wonder to yourself, "If that story had been in the morning edition today instead, would we have found these guys waiting for us with AK-47s and grenades instead of with their lawyer?"
Later that day, you sit in on a meeting between the special agent in charge of this badly compromised raid and the United States Attorney in Chicago. The phrase "obstruction of justice" has already been used frequently in the conversation, along with a variety of swear-words that would make most sailors blush. You hear a reporter's name mentioned over and over again, too — either "Judith Miller" or "Phillip Shenon," again take your pick — and your boss' coffee cup topples off the edge of the conference table as he pounds it for emphasis: "We need that reporter's butt in a witness chair before a grand jury ASAP!"
"No," explains Mr. Fitzpatrick, the U.S. Attorney, and he runs everyone in the room through the law on this one more time. Although there are some state statutes creating privileges under state law, under federal law there is no formal privilege that permits reporters to shield the names of "confidential sources" like the ones mentioned in the NYT stories. There's a U.S. Supreme Court case saying reporters have to testify just like any other citizen. But — and it's a big "but" — there are Department of Justice policies that commit the DoJ to essentially the same protections for reporters that even the most generous, most pro-media of these state shield laws create. Of course the fastest and surest way to find out who leaked to the NYT about these raids, agrees Mr. Fitzgerald, would be to pop Mr. Shenon or Ms. Miller with a grand jury subpoena and put them on the witness stand and just straight-out ask them — under subpoena, under oath, and under penalty of contempt of court if they refuse to answer — who tipped them off. But under DoJ policies, even when that information is essential, the government first has to look for "less intrusive" means to get that same information. Prosecutors can't start with the reporters themselves if they can get equivalent information somewhere else.
"Wait a minute," you interject, "Whose idea was that, that we have to use these 'less intrusive means'?"
"Why, it was the media's idea, of course!" answers Mr. Fitzpatrick. "If they've been careful, if they've met with their confidential sources in some parking garage like that 'Deep Throat' guy in the movies insisted on doing, we may be s**t-outta-luck with the phone records, in which case we'll have to subpoena the reporters directly. But first we have to subpoena the phone records — otherwise any judge will probably quash our subpoena for the reporters themselves, and I'll be in trouble with the Attorney General for violating DoJ policy."
"Now excuse me, guys," he says, "I've got to write a letter to the NYT asking for their consent to provide us with their phone records as a less intrusive means than subpoenaing their reporters directly." But then he stops, and chuckles: "Of course, as far above the law as these guys think they are, they probably did use their phones."
(Obviously I'm engaging in dramatic license here, especially with the dialog — but no more so than did the writers and makers of "All the President's Men." I don't know if there actually was a dripping mop, but there indeed was a lawyer waiting at one of the "charities," and Mr. Fitzgerald did write such a letter. The basic facts I've described are indeed accurate.)
Rather than drag the reporters into court, where they could have protected their sources by refusing to testify, the prosecutor subpoenaed their phone records for 11 days in 2001. A trial court prohibited the government from obtaining the records from the phone companies, but a divided appeals court reversed that decision. Now the Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records in hopes he can pinpoint the source of the leak.
This is a bad outcome for the press and for the public. The phone records reveal the identities of lots of sources having nothing to do with the leaks. The appeals court’s disingenuous suggestion that The Times might redact irrelevant records would simply have helped point to possible leakers.
Are you following what's going on here? Patrick Fitzgerald and the grand jury are voluntarily jumping through incredible hoops to get this evidence. They can't use the means that would be most direct. They can't use the means that any other potential witnesses in the United States except for the press would have to submit to. The mainstream media has utterly failed to get either Congress or the U.S. Supreme Court to create a federal privilege for reporters to shield their confidential sources — but the DoJ has already given them that protection anyway, and in this very case it's already busy jumping through all of the hoops any conceivable reporter privilege could require.
But says the New York Times — I'm not quoting here, but the accuracy of this paraphrase is inescapable:
That's not good enough. Never mind that it was at our own insistence that you went to the phone records instead of coming directly to us. We insist on having the opportunity for our reporters to defy the law and go to jail after having been subpoenaed directly. You must not deny us our martyrdom as we show our contempt of court! Drag our reporters into court — we insist!
Oddly enough, when it wasn't editorializing in its own pages, but was instead speaking through its lawyers to the Second Circuit, the NYT did indeed insist that the government seek the least intrusive means of getting this information — but proceeded to do everything possible to make that less intrusive means impractical. Here's the actual language from the Second Circuit's opinion that the NYT characterizes (with remarkable disrespect bordering on blog-like snark) as being "disingenuous" (footnote and case citations omitted, boldface mine):
The centrality of the reporters' evidence to the investigation is demonstrated by the Times' echoing of the district court's understandable view that some or many of the phone records sought are not material because they do not relate to the investigation and may include reporters' sources on other newsworthy matters. The Times seeks to add to that argument by stating that the government has not exhausted available non-privileged alternatives to the obtaining of the phone records.
This argument is more ironic than persuasive. Redactions of documents are commonplace where sensitive and irrelevant materials are mixed with highly relevant information. Our caselaw regarding disclosure of sources by reporters provides ample support for redacting materials that might involve confidential sources not relevant to the case at hand. In the present case, therefore, any reporters' privilege — or lesser legal protection — with regard to non-material sources can be fully accommodated by the appropriate district court's in camera supervision of redactions of phone records properly shown to be irrelevant.
However, the knowledge and testimony of the reporters does not have a reasonably available substitute in redacting the records because it is the content of the underlying conversations and/or other contacts that would determine relevancy. Redactions would therefore require the cooperation of the Times or its reporters, or both, in identifying the material to be redacted and verifying it as irrelevant, or in credibly disclosing the reporters' source(s) to the grand jury and obviating the need to view in gross the phone records.
In short, the only reasonable unavailed-of alternative that would mitigate the overbreadth of the threatened subpoena is the cooperation of the reporters and the Times. We fully understand the position taken by the Times regarding protection of its reporters' confidential communications with the source(s) of information regarding the HLF and GRF asset freezes/searches. However, the government, having unsuccessfully sought the Times ' cooperation, cannot be charged by the Times with having issued an unnecessarily overbroad subpoena. By the same token, the government, if offered cooperation that eliminates the need for the examination of the Times ' phone records in gross, cannot resist the narrowing of the information to be produced.
I love that studied understatement: "more ironic than persuasive." Boiled down, this is the Second Circuit saying to the NYT: Guys, we're already making them use the least intrusive means available, just like you demanded. Now you're complaining that by using that means (getting evidence through documents instead of direct subpoenas for the reporters' oral testimony), they'll get other, unrelated confidential information. But they're willing to forgo that extra info if you'll just sort it out of the stack, and if you won't, then that's just your own tough luck, because there's just no other, less intrusive way for them to get what they absolutely do need.
So who's being disingenuous? Who ought to have anticipated that their phone records might be subpoenaed? Who ought to have expected that if those phone records were subpoenaed, they'd show other calls besides the ones from whoever tipped off the NYT about these two raids?
And who thinks they're so far above the law that the prosecutors and the courts owe them an opportunity to be martyrs, notwithstanding the fact that they've demanded — and already gotten the benefit of — special rules that apply to nobody else?
Wednesday, November 29, 2006
A long war story about a Beldar cross-examination, and a technical bleg about "meta-data"
This is a technical "bleg" (meaning a beg for help from blog readers) about "meta-data," a/k/a "embedded data," in digital files. I'm hoping that a few of my readers might be able to answer my technical questions, but others might still find the technical question interesting — especially the lawyers among you — in which case you may well want to skip to the very end of this very, very long post.
But as a roundabout way to explain why the subject of this bleg could be important, I've included a trial lawyer war story, which in turn includes long quotes from one of my cross-examinations in a recent tradename injunction case. It mostly falls into the category of Beldar self-congratulations (ow! my arm's broken from patting myself on the back!). Arguably it also falls into the category of "educational examples of how to impeach a witness effectively from a prior affidavit on cross-examination" — affidavits and their uses and abuses seeming to be a subject of obsession for my legal blogging, I guess.
Back in October 2004, when the conservative blogosphere was very busy shredding the claims by CBS News, its "60 Minutes" program, and its then-Grand Poobah Dan Rather about the authenticity of the "Killian Memos," a/k/a the "Texas Air National Guard"
documents forgeries, I was much impressed with how some of my readers and commenters began to delve into the "meta-data" (also sometimes called "embedded data," and yes there's a slight distinction but I'm not sure I can explain it) associated with the various .pdf files containing scans of the documents forgeries.
In addition to the .pdf scans of the so-called Killian Memos that were available for download on the CBS News website, there were other .pdf files containing scans that were purportedly made from the same original documents on various other news organizations' websites (e.g., USA Today's site), some of which those news organizations claimed to have obtained independently of CBS News' (so-called) investigatory efforts. At one point, based on a date that was embedded in one such .pdf file, it looked like Fox News' version of the scan had been created many months before CBS News claimed to have been approached — which seemed like a big, big deal at first. But then my commenters seemed to reach a consensus that the most likely explanation was that the scan had been done on a non-networked computer or scanner whose system clock was several months out of date, possibly due to a bad battery — a terrific example of the blogosphere's distributed information processing coming up with a non-conspiratorial explanation (even though it didn't fit what most of us expected, and probably wanted, to find by that point). And it marked the first time that I became aware of the possibilities that embedded data might have in an adversarial search for the truth (a/k/a "what I do for a living").
Fast-forward to the much more recent past — this October. What I'm about to describe are all matters of public record in a tradename lawsuit that has just ended through an agreed settlement. There's no confidentiality agreement as part of the settlement, but simply for taste reasons, I'm going to conceal the actual identities of the parties, witnesses, lawyers, and products behind pseudonyms.
The defendant in the lawsuit — that is, the alleged trademark infringer — I'll call "Doe Corp." The plaintiff, whom I'll call "Doe Inc.," asserted that it had a superior right to use the tradename "Doe." Both companies were based in Europe, where they'd done business side by side for centuries. Both of them manufacture what I'll call "widgets." And both were in fact founded and are still owned by families named "Doe." But Doe Inc. claimed that it had started using the "Doe" name in connection with its widgets in the U.S. and the Western Hemisphere several years ago, and that it had spent lots of time and money promoting the "Doe" name here — whereas Doe Corp. was, according to Doe Inc., a new-comer to the widget market in the US and the Western Hemisphere. Doe Inc. also claimed that Houston is the widget capital of the Western world, and that Doe Corp. was causing customers here to become confused between Doe Inc. widgets and Doe Corp. widgets, in turn causing Doe Inc. to lose sales.
So Doe Inc. had gotten an emergency "temporary restraining order" in state district court in Houston that prohibited Doe Corp. from using the name "Doe" in this half of the world. Doe Inc.'s lawyers did so "ex parte" — meaning without anyone from Doe Corp. being present — based on Doe Inc.'s assertion that this was such a big emergency that there just wasn't time to give Doe Corp., all the way over in Europe, any notice of the hearing on Doe Inc.'s TRO application.
That very directly affected the business of my client, whom I'll call Acme. Acme is a Houston-based company that buys and then re-sells widgets from many companies, among them both Doe Inc. and Doe Corp. Because of the TRO, Doe Corp. suddenly couldn't sell Acme any more widgets — and the world-wide widget market is smoking hot right now, and Acme needs lots and lots of widgets as fast as it can get them! Indeed, Doe Inc. was even making noises about trying to use the TRO it had gotten against Doe Corp. to stop Acme from "acting in concert with Doe Corp." In other words, Doe Inc. was suggesting that Acme was deliberately helping Doe Corp. infringe on Doe Inc.'s tradename, even if just by re-selling the Doe Corp. widgets that Acme already had in its inventory. So even though Doe Inc. hadn't yet directly sued Acme, Acme instructed me to jump into the middle of this lawsuit (i.e., to "intervene") to protect Acme's own interests.
Thus it came to pass that in mid-October, we had a two-day evidentiary hearing on Doe Inc.'s application to convert its TRO into a longer-lasting pretrial injunction — called a "temporary injunction" in Texas state-court practice, but very analogous to a "preliminary injunction" in federal-court practice. This temporary injunction hearing was going to be a very big deal — potentially freezing millions of dollars of widget commerce for many months, perhaps even more than a year, until there could be a full jury trial on the merits after everyone had conducted pretrial discovery. And it was going to be conducted blind — in other words, without either side having obtained the others' documents or taken the other side's witnesses' depositions. This was going to all be "shoot from the hip" trial lawyering — by far the most dangerous, and by far the most fun (if terrifying) for the lawyers!
The final thing you need to know to understand this war story has to do with the rules governing injunctions — TROs, temporary injunctions, or permanent injunctions. A defendant can defeat an injunction by showing that the plaintiff was not diligent in trying to protect his rights — in other words, that the plaintiff knowingly let his rights be trampled for a long time without saying a peep. That's especially important in a trademark/tradename contest. So precisely when Doe Inc. first learned of the alleged tradename infringement by Doe Corp. in the U.S. was potentially very important — and could possibly even decide the outcome. "Why should I freeze everything for the next few months," judges are prone to ask, "when your client has known about this controversy, but sat on its butt without filing suit for several months, counsel?" There rarely is a good answer to this question.
At the evidentiary hearing, we heard from a witness whom I'll call "Mr. Smith." Mr. Smith works for Doe Inc., and his company's lead lawyer, whom I'll call "Mr. Black," called Mr. Smith to testify about supposed confusion in the marketplace between the two companies. But in the course of Mr. Black's direct examination of Mr. Smith, Mr. Smith volunteered that he'd gotten his first strong hint of Doe Corp.'s allegedly infringing use of the Doe tradename in the U.S. way back in February, and that he'd gotten firm confirmation of it in April. These were surprising admissions — harmful to Doe Inc., and very helpful for Doe Corp. and Acme. And when Mr. Black was done with his direct examination, Doe Corp.'s lawyer, whom I'll call Mr. White, very crisply and effectively re-confirmed and highlighted these admissions as part of his cross-examination of Mr. Smith.
But then came my turn. And because I recalled something that it seemed that the other lawyers in the courtroom either didn't know or had forgotten, I found myself with a textbook opportunity to conduct a very, very fun cross-examination. Here's the transcript, unedited (except for the substitution of pseudonyms and a few bracketed explanations):
THE COURT: Mr. Dyer?
CROSS‑EXAMINATION BY MR. DYER:
Q. Mr. Smith, besides testifying here today in Court, you've previously given a written affidavit in this case; is that correct?
A. Yes, sir.
Q. You signed it before a notary public on September 22nd, 2006?
A. Yes, sir.
Q. Do you know that it was attached to the papers that your company's lawyers filed with the Court to ask for a temporary restraining order?
A. I don't know that personally. I know I signed the affidavit.
Q. Did you read it before you signed it?
A. Yes, sir.
Q. Did you read it carefully?
A. I did read it.
Q. I'm sorry?
A. I did read it carefully.
Q. Carefully? Did you understand it was testimony that you were giving in written form, just as if you were sitting here in court, as you are today?
A. Yes, sir, I did.
Q. You certainly wanted that testimony to be accurate?
A. Yes, sir.
Q. You certainly wanted that testimony to be complete?
A. Yes, sir.
Q. You certainly didn't want to mislead this Court?
A. No, sir.
Q. Mr. Smith —
MR. DYER: May I approach?
THE COURT: You may approach.
Q. (BY MR. DYER) Let me show you what I marked as Acme TI 2, for Acme Temporary Injunction Exhibit No. 2. Do you recognize that to be a copy of your affidavit?
A. Yes, sir.
Q. Do you recognize your signature on the second page?
A. Yes, sir.
MR. DYER: May I look over the witness' shoulder with him? We only have this one copy, I know, because it was attached to the court papers. The other counsel have it. It's not necessarily right here in hand.
MR. BROWN [the second-chair lawyer for Doe Inc.]: Here's an extra copy, if you want one.
MR. DYER: Thank you.
MR. DYER: May I hand this up for the Court?
THE COURT: Thank you.
Q. (BY MR. DYER) If we read together in your affidavit, it says, paragraph two, that you're employed as a quality coordinator at Doe Inc. Correct?
A. Yes, sir.
Q. Then the rest of paragraph two describes the September 20th encounter with Mr. Jones from Acme?
Q. Speak up so the court reporter can hear you.
A. Yes, sir.
Q. Then the last sentence of that paragraph reads, quote, "Prior to August of this year I was unaware that there was another company named 'Doe' that sold widgets."
Do you see that, sir?
Q. That's false, isn't it?
A. I believe it would be April, is when I —
Q. The statement is false as written, isn't it?
The transcript doesn't show it, but everyone who was there in the courtroom will remember that at this point, there was a long, painful silence. I'd estimate the silence to have been at least 30 seconds, but it probably seemed much longer to Mr. Smith. And I could practically hear the gears turning in Mr. Black's head as he tried to think of some objection that might get his witness off the hook I'd carefully baited, set, and then yanked.
A. Yes, sir.
Q. Misleading as written, isn't it?
MR. BLACK: Objection. It's an insignificant, technical error. Not misleading.
MR. DYER: That's a fine argument.
THE COURT: Excuse me. Do you have a legal objection?
MR. BLACK: Badgering the witness. I gave a copy so he wouldn't hover over his shoulder.
THE COURT: All right. Let's — I'll sustain the objection. Well, I'm sorry, the first question was false?
MR. DYER: Yes.
THE COURT: Reverse myself. Overruled.
Q. (BY MR. DYER) That statement that the first time you knew there was another company named 'Doe' that sold widgets was in August of this year, 2006, that was also misleading, wasn't it?
MR. BLACK: Objection. At the time —
A. No —
Q. (BY MR. DYER) Do you think it was misleading?
A. Sir, I was only told by another employee there that it was Doe [something else], not Doe Corp.
Q. Well, any other company named 'Doe.' You denied in the affidavit that you knew there was any other widget company that used the name 'Doe,' you denied having known that before August of this year, and that was just wrong when you put that in the affidavit. Do you agree, sir?
A. Yeah, that was a mistake.
Q. As you testified here today, you knew at least as far back as April of this year?
Q. You could have known, as Mr. White's questions established, as far back as February of this year, had you taken the trouble to look?
MR. BLACK: Objection. Mischaracterizes the prior questioning and prior answers.
THE COURT: Overruled.
Q. (BY MR. DYER) Could have known in February, if you looked?
A. I guess my only question is how come the Acme employees didn't look?
Q. I understand that that's an argument your lawyer may make later on. But my question to you is, could you have looked in February and found out as early as that, if you had taken the trouble?
A. Yes, sir.
This whole series was about as close to a real-life "Perry Mason moment" as any trial lawyer is likely to get. But there was more, near the end of that same cross-examination.
Q. [BY MR. DYER] While we're talking about reasons you didn't do things, is there a reason you didn't tell the Court in your affidavit when you said — the same affidavit now, which said you first learned about another 'Doe' company in August — is there a reason you didn't tell the Court in that affidavit about the April and February contacts with Bernard? [Bernard was the Acme employee whom Mr. Smith identified as having told him about Doe Corp. selling widgets in the U.S. in February and April.]
A. Can you repeat that one more time?
Q. Sure. Is there a reason you left out of your affidavit the February and April contacts with Bernard?
A. Is there a reason I left it out? No, sir, there's no reason.
Q. In fact, somebody else wrote that affidavit for you to sign, didn't they?
A. No, sir.
Q. Did you type it up?
A. I did not type it up.
Q. Who typed it up?
A. I believe our attorney typed it up.
Q. And I don't want to get into conversations between you and your attorney. But, is it fair to say that you weren't the one who made the decision to leave out the discussion of the February and April contacts?
MR. BLACK: Objection. There's no way to answer that question without getting into attorney/client communications.
MR. DYER: If that's the case, then we may need to talk about the crime fraud exception, have some testing [of] privilege. I'm trying to avoid that.
MR. BLACK: Hold on a second.
THE COURT: Come on up, counsel.
(Discussion at the Bench)
MR. BLACK: May I?
THE COURT: Well, no. Why don't you examine what this witness knows about the transaction, short of what he was told by his lawyer.
If you want to cover the circumstances under which this affidavit was prepared, I think that would be appropriate. But at some point we're getting into attorney/client privilege issues. I don't want to pre-judge the crime fraud issue, but —
MR. DYER: Somebody made a decision not to tell this Court —
THE COURT: That you haven't asked. Your question assumed that. Did not ask that.
MR. BLACK: But I'm giving you this hypothetical. Hypothetical that —
THE COURT: I'd rather not do that in front of the witness.
MR. WHITE: Can we take testimony? Did you make the decision?
(End Bench conference)
Q. (BY MR. DYER) Did you make the decision to leave that out of the affidavit, Mr. Smith?
A. No, sir.
Q. Did you make the decision what to put in the affidavit?
A. I just told things as I knew them.
Q. I don't want to get into the substance of what you told the lawyers or didn't tell the lawyers. Is it fair to say you had a communication with them verbally, and then they handed you an affidavit and you signed it after reading it?
A. Yes, sir.
Q. After missing the [sarcastic tone and "air quotes" with fingers] mistake?
A. Yes, sir.
Based on Mr. Smith's live testimony about the dates in response to Mr. Black's questions, Mr. White's cross-examination had already highlighted the fact that Doe Inc. couldn't prove one essential part of its case — in other words, couldn't prove it had acted promptly to protect its supposed rights to the "Doe" name. But Mr. White's cross-examination hadn't quite shown that anyone was a scoundrel — only that they'd been rather slow to react.
My cross-examination took it a step further, however, impeaching Mr. Smith's personal credibility by pointing out the vast inconsistency between his live sworn testimony from the witness stand and his written sworn testimony from the affidavit. But even more important, my cross-examination showed that Mr. Smith's employer, Doe Inc., almost certainly had misled the court about this subject when Doe Inc. got the ex parte TRO. Judges don't like being misled on important things. Perhaps that misleading wasn't deliberate — Mr. Black continues to insist that this was all just an innocent misstatement, a memory lapse. But it was nevertheless on a subject so important that a "mistake" of this magnitude was not likely to be excused by the court even if innocent.
The evidentiary hearing ended a few hours later. My cross-exam of this witness was far from the only reason — Mr. White and his colleague did a terrific job on other important topics too — but suffice it to say that Doe Corp. and Acme won the hearing: The court denied Doe Inc.'s request to convert the TRO into a temporary injunction that would have remained in effect for several months until a full trial. Doe Corp. was free to go on selling its widgets throughout the Americas, and Acme was free to continue to buy and re-sell them.
And within a matter of a few weeks after the hearing, the whole case settled with a whimper, not a bang.
Since I had established that this witness and his employer had submitted an at-least-badly-mistaken and possibly deceptive sworn affidavit to get the TRO, Mr. White and I were very keen to dig further into the subject of that affidavit as part of our preparations for a full trial on the merits, and the judge had indicated that we'd get a chance to test just how innocent the "mistake" about the dates actually was. We wanted to know who had prepared the affidavit, who had revised it, how many drafts it went through, what changes were made during the drafting stages — and as to each of these issues, when. As the first step, Mr. White had sent a document production request that sought "the production (in electronic form) of the affidavit of John Smith .... Pursuant to Tex. R. Civ. P. 196.4, Doe Corp. requests that the document be produced in electronic form, in native format with all associated metadata." But the case settled before we got Doe Inc.'s response (which would inevitably have been the next step in a complicated battle over attorney-client privilege).
I recently took a very good online continuing legal education course about meta-data and embedded data, prepared by Mercer University School of Law Professor David Hricik. (The pseudonymous Mr. White has also taught CLE courses on this subject, and already knows much more about it than I do.) As with the meta-data embedded within .pdf files that was discussed at the beginning of this post, Prof. Hricik's course taught me how to find some of the cool info that can be embedded within, and hence extracted from, Microsoft Word .doc files. The type and extent of the available data changes depending on what settings one's Word program has as its defaults, and/or how the settings have been re-configured for any given document. But in my own experimentation, I've found that a great deal of that embedded data seems to be altered by any re-saving of the .doc file once it's been opened to look for that data. Plus, other types of embedded data, including when the file was created, appear to be re-set any time the file is even copied (for example, even onto a CD).
Hence, finally, my technical bleg: I can send rude instructions — a detailed warning that opening and then re-saving the Microsoft Word .doc file, for example — will be argued by me to be an intentional spoliation of evidence by my opponent, potentially subject to severe punishment by the court. But short of going over to Mr. Black's office and demanding to be allowed to log onto one of his networked workstations, given a password, and shown how to access the .doc file myself from where it's stored on his firm's servers — presumably with a videographer looking over my shoulder to document what I'm finding! — is there any good and fairly easy way to ensure that a digital file that's supposedly in "native format with all associated metadata" (but that almost necessarily will have been copied from an "original" file) won't have suffered some of these alterations?
Of signatures and rubber-stamps, oaths and Bibles
Since returning to active blogging, I have, of course, stepped up my reading of some of my other favorite blogs. And I've been unable to resist the urge to comment on them. A little bit of that is fine. But of course, your long-winded host at this blog can't hold himself to a little bit, and so I find myself writing long screeds on other bloggers' comments sections. I should post those screeds here, where my readers voluntarily assume the risk (at least after their first visits) of overlong rants.
I need software that causes my keyboard to seize up and a red light to flash when I've written more words in a comment that the host wrote in the post itself. "Beldar, take it to your own bandwidth!" the digitized voice should shout.
Yesterday my rants elsewhere were over the importance — or fundamental lack thereof — of whether the judge who'd issued the warrant in the Atlanta "no-knock warrant"/elderly-woman-shooting incident had affixed a pen-and-ink signature to the warrant, or had instead approved the warrant via a rubber stamp of his signature, or a digital version thereof. Prompted by an animated .gif file on Radley Balko's blog that attempted to show a non-manual, non-unique-pen-and-ink signature, my comments spilled over onto Patterico's blog and a post by Prof. Orin Kerr at The Volokh Conspiracy. The best of my rants — which I completely spoiled by an intemperate and impolite and completely unjustifiable closing dig at Prof. Kerr (who deserves far better of me); I repeat here my apology that I later posted there — may have been the shortest, so I'll reprint most of it here (minus the dig):
Whether the signature was pen-and-ink, ink-stamped, or digital is almost certainly irrelevant under any State's law. See, e.g., Article 3, part 4, of the Uniform Commercial Code, especially § 3-401(b):
A signature may be made (i) manually or by means of a device or machine, and (ii) by the use of any name, including a trade or assumed name, or by a word, mark, or symbol executed or adopted by a person with present intention to authenticate a writing.
Although from a commercial instead of a criminal context, this re-states the common law on signatures and endorsements generally.
Thus, the proper question is whether whatever indication of the judge's ruling on the warrant application was intended by him or not, however that intention was manifested. If the warrant is genuinely forged — if it was completely fabricated, whether through a phony pen-and-ink signature or a hacked data cable — then it was not intended by the judge to evidence his assent, and that's another story entirely ....
And whether this judge paid enough attention to the warrant application, or whether judges in general ought to pay more attention, or whether standards for warrants ought to be changed, or whether no-knock warrants are good or bad — these are all interesting questions, but they have nothing whatsoever to do with the fact that these signatures are "suspiciously similar." That's just a complete red herring ....
That UCC provision explains why, for example, when your $10 rebate check from MegaCorp comes in the mail with a pre-printed signature from "J. Harold Bigboss," and you endorse the back of it with only your "For Deposit Only, John Doe, Acct. No. 287153982" rubber stamp, the document nevertheless flows through the banking system and results in the $10 being credited to your bank account — even though no one ever put a pen-and-ink signature to anything.
Today's victim is James Joyner of Outside the Beltway (whose co-blogger Steve Verdon I was arguing with over at Patterico's (sigh)). In my temporary insanity, it seemed that my two cents (or 400 words and six paragraphs) were essential to each of three or four over posts there, but the only comment that's possibly worth my repeating here (or that arguably was worth my posting there) had to do with the question of whether newly-elected Congressman Keith Ellison, an adherent of the Muslim faith, ought to be permitted to take his oath of office on a Koran instead of a Bible. To which I made this comment:
I’ve practiced law in Texas for 25 years. I've never once seen a witness take an oath, either in a deposition or before live testimony in court, on a Bible (or any other book).
For that matter, I've never once seen a judge bang his gavel. They all have them, but the just never, ever use them. If it came to that, they’d crook a finger at a deputy sheriff/bailiff who’s got a badge on his chest and a 9mm on his hip, but I’ve only seen that happen once.
The oath-on-a-Bible thing, dating back to George Washington [adding] an unscripted “So help me God” and kissing the Bible at his inauguration, is pure politics and show-business. It has nothing to do with actually becoming a Congressman or Senator or Supreme Court Justice or President.
The oath, by contrast, does really matter — because if you’re impeached, it’s the oath that manifested your acceptance of the duty, the violation of which duty is the basis for your removal from office.
I've got a related issue (well, it's a minor sub-issue actually) in one of my pending cases that's set for trial early next year. In it, there's a document, actually a letter, that was signed by one of the secondary players in the case, and it bears a Notary Public's seal-stamp and signature as well. My opponents keep referring to it as an "affidavit," and there's no doubt it will be admitted into evidence in my case (because it has independent legal significance, regardless of whether it's self-authenticating and otherwise admissible as an exception to the normal hearsay rules).
But the document has no other language — no indication that the Notary Public administered any sort of oath, no statement made or adopted by the "witness" to the effect that he had personal knowledge of its contents, or that he was swearing to the truth of any of the recitations in the document. It just has the letter-writer's signature, plus the Notary Public's signature and stamp. My position is that the most that can be implied by that document is that the Notary Public verified the identity of the signer (and even that may be subject to dispute; quite arguably, all by itself the Notary's signature and stamp are entirely meaningless). But I'm confident that the document couldn't support a perjury conviction even if the factual statements that were in it were lies, and I don't think it therefore can be called an "affidavit" or even a "sworn statement."
In short, I think oaths still matter, although the formalities by which they're accomplished (left hand, right hand, no hand; Bible, Koran, Das Kapital) don't necessarily. We'll see if the judge agrees with me. And I'm quite certain that pen-and-ink isn't required for a "valid" signature, but rather that what's required is a reasonably clear ("clear" from the circumstances, not the handwriting), objective manifestation of the "signer's" intention, almost however expressed. (And yes, there are indeed appellate cases upholding signatures accomplished by points-and-clicks on a computer screen as binding upon the point-and-clicker in at least some circumstances.)
Tuesday, November 28, 2006
Breathe a sigh of relief: NYT loses in SCOTUS again on reporters' privilege
MONDAY, NOVEMBER 27, 2006
ORDER IN PENDING CASE
06A525 THE NEW YORK TIMES COMPANY
V. GONZALES, ATT’Y GEN., ET AL.
The application for stay of mandate of the United States Court of Appeals for the Second Circuit pending the filing and disposition of a petition for a writ of certiorari, presented to Justice Ginsburg and by her referred to the Court, is denied.
Of this very brief order yesterday from the United States Supreme Court, the losing lawyer, eminent First Amendment specialist Floyd Abrams, was paraphrased by his client as having said "the decision was a battle lost in a larger war." But on this occasion, Mr. Abrams is absolutely, positively wrong.
This decision was a battle won for the United States on the home front in the global war on terrorism. And it's another fine example of how the mainstream media, led by the New York Times, is absolutely willing to let you be blown to bits by terrorists in order to protect your "right to know."
Let's boil this down. Here, in two thorough paragraphs, is how the United States Court of Appeals for the Second Circuit explained the background and the issues:
After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters [Philip Shenon and Judith Miller] learned of these plans, and, on the eve of each of the government's actions, called each foundation for comment on the upcoming government freeze and/or searches.
The government, believing that the reporters' calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches, began a grand jury investigation into the disclosure of its plans regarding the foundations. It sought the cooperation of the Times and its reporters, including access to the Times ' phone records. Cooperation was refused, and the government threatened to obtain the phone records from third party providers of phone services. The Times then brought the present action seeking a declaratory judgment that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter's privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment.
Here it is in two sentences: The FBI was prevented from freezing terrorists' assets and catching terrorists because somebody leaked what they were about to do to the New York Times, and the NYT proceeded to warn the terrorists themselves! Now the NYT says that because it was just promoting the "public's right to know" and the First Amendment, its phone company should be immune from having to give evidence to permit a grand jury to decide whether any crimes were committed as part of this debacle.
And here it is in a mere ten words: Someone committed treason, and the NYT is okay with that.
The Second Circuit, fortunately, wasn't okay with that. Even though the Supreme Court has never recognized one, the Second Circuit played along with the notion that there might be some sort of federal common-law privilege for reporters to conceal their "confidential sources." But like every other court (state or federal) to ever consider the question, it pointed out that the privilege is not absolute, but only "qualified" — meaning that sometimes it can be overcome. And it was here:
There is therefore a clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters' knowledge, and a clear showing of need. No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence. It is therefore not privileged.
In other words, even if there might be special rules that let reporters refuse to obey lawful subpoenas sometimes, this ain't one of those times.
Yesterday's SCOTUS ruling comes in an odd procedural context that neither the NYT's own news story nor the WaPo's comparable report explained very well — so I'll try.
The Second Circuit's decision was rendered on August 1st, but the NYT of course wanted to keep going up the appellate chain, and took the steps needed to continue that process. The NYT asked that in the meantime, Mr. Fitzgerald and the grand jury hold their damned horses, and that the effect of the Second Circuit's ruling be postponed — the technical legal terminology being to "stay the Second Circuit's mandate." The Second Circuit wouldn't do that itself, so the NYT went to the "Circuit Justice" — that is, the member of the U.S. Supreme Court with emergency supervisory authority over the Second Circuit in particular, which is Associate Justice Ruth Bader Ginsburg — and asked her to stay the Second Circuit's mandate.
Mr. Fitzgerald, however, was pretty insistent that he not be required to continue holding his horses:
The Justice Department told the Supreme Court on Friday [in response to the NYT's motion to stay the Second Circuit's mandate] that Mr. Fitzgerald was under enormous time pressure. "The statute of limitations," the government said, "will imminently expire on Dec. 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating."
Now, if the NYT could ever hope to find a friend on the SCOTUS, it's Justice Ruth Bader "ACLU" Ginsburg. My conservative non-lawyer friends sometimes ask me how I can respect Justice Ginsburg even though I almost never agree with her legal opinions, and this is a good example of why that's so: Whatever her personal inclinations may have been, in this case she obviously recognized that it just wouldn't be appropriate for her to make this ruling alone — even though she had the nominal power to do so. Instead, as yesterday's order recites, she referred the NYT's request to stay the Second Circuit's mandate to the full Supreme Court. And the full Supreme Court refused that request, without any dissents. So the Second Circuit's mandate will promptly issue (or may already have, as of yesterday), and Mr. Fitzgerald's FBI agents will be poring over those phone records toot sweet.
The case isn't over. The NYT will still ask the Supreme Court to review the merits of the Second Circuit's decision through a petition for a writ of certiorari. The Supreme Court might agree to hear the case — although that would surprise me very much. And yesterday's ruling doesn't necessarily mean that neither Justice Ginsburg nor any other member of the Supreme Court would vote to overturn the Second Circuit's ruling if cert were granted and the Supreme Court thereby agreed to review the Second Circuit's decision on its merits. In fact, if I had to guess, I'd guess that she and Justice Stevens almost certainly would. That there were no dissents yesterday — not even from Justices Ginsburg or Stevens — may only mean that there aren't five Justices who are dad-gummed eager to use this particular case to create a new federal common-law privilege for reporters to shield their confidential sources. But maybe four Justices can be persuaded to vote to grant certiorari, and maybe five can be persuaded to create a privilege that Congress has so far refused to. Or so Mr. Abrams and the NYT will hope.
And in due course, Mr. Abrams will write another fine petition for a writ of certiorari toward that end. But whatever he says for his client or other MSM outlets to reprint, I'll bet he's not going to be holding his breath waiting for cert to be granted. Not in this case, not on these facts. Not to protect whoever it was who broke the law to protect terrorists. Someone rabidly pro-media could at least argue with a semi-straight face that chasing down whoever supposedly "outed" Valerie Plame wasn't such a really big deal, and that the "public's need to know" (as purportedly protected by reporters' promises to keep sources confidential) ought to trump that search for evidence.
But not many people or entities besides the New York Times have the unmitigated chutzpah — combined with a breathtaking, and breathtakingly dangerous, childlike naïvety — to argue that someone inside the government ought to be able to tip off the NYT before an FBI raid, and that the NYT's reporters ought to be able to tip off the terrorists, and then that those criminally stupid tipsters, like the terrorists, should just be able to get away with it.
"I'll bet this will make Bush look bad," the tipsters probably thought. And that, in their eyes, is a goal that can justify anything, including another 9/11 or worse.
Saturday, November 25, 2006
Blame the defendant? The lawyer? The mom? The judge?
I once cross-examined a man at trial who I later found out was on major sedatives and other meds to control his violent paranoid schizophrenia. I've occasionally seen witnesses who gave such unexpectedly stupid answers in court that I wondered if they were on drugs. But I've never had a client drop a bag of marijuana while standing up from counsel's table in court.
Obviously, the defendant — a newly-convicted robber — is to blame. But one wonders if he's the only one:
To make matters worse, his mother, a defense lawyer, was by his side at the time — representing him.
According to the [recorded record], Gwyn Hoerauf, his mother, said jail was not the answer to her [19-year-old] son's problems.
"I'm going to say it in a very crass way, and I hope he forgives me," she said.
"He is brain-damaged, your honor. I don't mean he's just a defendant who does dumb stuff. This is a boy with an IQ in triple digits. His brain is glued together with Silly Putty. He can't think his way out of a paper bag, but he can do physics."
I'll leave it to others to critique the parenting. As a lawyer, though, I'll say that no parent has any business defending his or her child in a felony criminal jury trial — ever. You certainly ought to help him or her find competent counsel for any important pretrial hearings, plea negotiations, and the trial. And immediately after the arrest, you might bail your kid out if you can. But if bail is contested, even that may be inappropriate.
Every lawyer has an ethical obligation to refuse employment in matters in which his or her judgment is likely to be compromised. Rule 2.01 of the Texas Disciplinary Rules of Professional Conduct (for which I'm certain there's a reasonably close counterpart in Maryland, where this event took place) provides that "[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice." That independent judgment is going to be virtually impossible for any parent to deliver.
Likewise, Rule 1.06 on conflicts of interest provides that "a lawyer shall not represent a person if the representation of that person ... reasonably appears to be or become adversely limited ... by the lawyer's ... own interests." Comment 4 to that Rule provides:
Loyalty to a client is impaired not only by the representation of opposing parties ... but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer’s own interests or responsibilities to others. The conflict in effect forecloses alternatives that would otherwise be available to the client.... A potential possible conflict does not itself necessarily preclude the representation. The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
And while normally potential conflicts of this sort may be waivable after full disclosure to, and informed consent from, the client, Comment 7 states that "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent."
Let's take Lawyer-Mom's statements to the Court about her son's mental state at face value (giving her ethical credit for fulfilling her duties of candor to the tribunal). Any disinterested lawyer would immediately conclude that the parenting of a 19-year-old defendant might well be called into question in this case. Even if there's no basis for an insanity or other diminished responsibility defense, certainly competent counsel would want to consider whether to put on evidence for sentencing purposes about the defendant's upbringing and home life — in which Lawyer-Mom here is not only potentially a person onto whom competent counsel may want to try to shift some blame, but also a potential exculpatory witness! And she's the last person in the world who ought to be trying to decide which!
This is just wrong in so many ways that I wonder whether the presiding trial judge conducted an examination of the defendant to ensure whether his "consent" to the potential conflicts was in fact fully informed and voluntary. Were I the trial judge, I would have spent a solid fifteen minutes pointing out all the problems to this young man, and I would have made it clear to him that if he couldn't afford alternate counsel, I'd appoint counsel for him. I'd basically make him say he understood that only a crazy man would accept his mom as his lawyer — and if he said that, then I'd refer him for a psych exam to test his competency to assist in his own defense!
I'd also put some very, very hard questions to Lawyer-Mom — and not sympathetically, but just about as harshly as I could. I'd probably appoint stand-by counsel from outside the family to sit there at the table with them if she insisted on continuing. Any time Lawyer-Mom did anything even remotely questionable, I'd run the jury out of the room and again examine the defendant to see if he'd had a change of heart and wanted to switch to the stand-by counsel. (The "brain dead" speech would certainly be one such occasion.)
Finally, while there are, of course, constitutional dimensions to one's right to be represented by counsel of one's choice, I'm pretty sure, even without having researched the issue, that those rights aren't unlimited. And again, were I the trial judge in this situation, I'd probably give serious thought to disqualifying Lawyer-Mom on my own motion. This isn't a situation in which only the kid's interests were compromised. It reflects poorly on the entire justice system.
I'm surprised the WaPo didn't pick up on the ethical aspects of the story, in addition to the "how incredibly, tragically funny!" aspect. I'm certainly not trying to excuse the kid's stupidity. And it's possible that the trial judge did some or all of the things I've suggested here, and that the WaPo reporter simply didn't learn about that, or chose not to include it in the story if he did.
But Lawyer-Mom's role is just simply inexcusable. Her kid certainly wasn't the only one in that courtroom whose conduct was, shall we say, less than exemplary.
Friday, November 24, 2006
So this morning I'm out walking the dog over on the nearby campus of Houston Baptist University. As usual, I try to pay for the privilege of enjoying their running path and sidewalks by picking up and disposing of some litter, and I pick up what looks to be the plastic wrapper from a small cake or pastry. The largest word on the wrapper is a word I didn't recognize: "Vainilla." After some thought, I concluded it was probably Spanish, and confirmed that when I got home to the internet. It's probably pronounced something pretty close to "Vah-ee-NEE-ya." But I didn't recognize it as a Spanish word at first. Rather when I initially read it, I attributed an English pronunciation to it, resulting in a nonsense word: "Vain-IL-la." Sort of like a mix between "vain" and "plain vanilla."
"That's me!" I thought immediately.
One thing that I believe is intrinsic to the notion of blogging is that one does it for fun, and only when and if one's so inclined. Thus, one doesn't owe anyone else explanations or apologies if one stops. Nevertheless, I apologize to those of you who've wasted clicks looking for new content here over the last year, and I thank what turned out to be the surprising number of you who emailed or otherwise contacted me with encouragement to return.
If you were wondering:
I just haven't felt like blogging for about a year. Some of it was frustration and burn-out from my frantic, futile efforts to defend the Harriet Miers nomination in October 2005. (No, I'm not going to blame the Republican party's loss of Congress on that intra-party bloodbath, and Justice Alito is fine. But I'm still angry at the elitism and the refusal to trust the President that brought down that nomination, and I despair of the chances of a courtroom lawyer ever getting a seat on the Supreme Court bench, even though that's a perspective that's badly needed there.) Another cause was a prolonged case of the blues that, in hindsight, had mostly to do with my employment circumstances from mid-2005 to -2006, and that seems to have lifted now that I'm again in solo practice.
I need to do some site maintenance — clear out about a zillion spam comments and such. And I might again find my blogging muse. We'll see.
In the meantime, I've much to be thankful for, including continued good health, fabulous kids, loyal clients, and a renewed enthusiasm for my law practice. I wish all of you a Happy Thanksgiving as well.