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Written Statement of Gerald H. Goldstein, a partner with Goldstein, Goldstein & Hilley, on behalf of the National Association of Criminal Defense Lawyers before the Judiciary committee of the United States House of Representatives.
The hearing concerned the decision in Hubbard v. United States, 115 S.Ct. 1754 (1995) and the NACDL's opposition to H.R. 1678. Mr. Goldstein testified at the hearing before the Subcommittee on Crime and the Committee on the Judiciary before the House of Representatives, during the first session of the One Hundred Fourth Congress on June 30, 1995.
Mr. Chairman and members of the Committee:
Thank you for providing me this opportunity to testify on behalf of the members of the National Association of Criminal Defense Lawyers (NACDL) in opposition to HR. 1678.
The almost 9,000 direct, and almost 30,000 state and local affliated members of the National Association of Criminal Defense Lawyers are private defense lawyers, public defenders and law professors. They have devoted their lives to protecting the many provisions of the Bill of Rights concerned with fairness in the criminal justice system. NACDL’s interest in, and special qualifcations for understanding HR. 1678 are keen. I am here today to explain why we stand in firm opposition to HR. 1678.
I think it is important to first ask why H.R. 1678's proposed “remedy” of the Supreme Court’s recent Hubbard decision is thought warranted. See Hubbard v. United States, 115 S.Ct. 1754 (1995). Where is the problem in need of “remedy”?
There is no question that it is unacceptable for attorneys to misrepresent facts or law in court filings. However, under existing rules and procedures, federal judges already have full (and efficient) authority to punish attorneys (from both sides) who engage in such unfair practices. A judge who finds attorney misconduct can hold the attorney in contempt of court, and impose a fine or jail term. See Rule 42, Federal Rule of Criminal Procedure.
Or, the judge can suspend the attorney from practicing before the federal courts, or, bar the attorney forever. Each federal district court has local rules that typically include ethical standards and procedures for sanctioning attorneys who violate the rules, and these rules typically provide for these type sanctions.
Finally, the judge can refer the attorney for discipline before the appropriate state board of professional responsibility. See e.g., US. v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993).
Such calls should be made by a neutral and detached judicial officer, not one (especially not the already more powerful and monied prosecution) engaged in the adversarial representation of parties in interest. And it is the time-honored trial device of cross-examination (overseen by judges according to the rules of procedure) that weeds out in-court falsehoods.
There is no need for HR. 1678's envisioned expansion of prosecutorial power. This measure would trivialize the federal criminal code and grant prosecutors an unfair advantage over their adversaries. More important, it would do so in a manner divesting a federal judge’s power over his or her courtroom and placing an unnecessary weapon in the hands of prosecutors - so that the latter might invoke unreviewable grand jury proceedings against adversaries, bringing justice-thwarting, and docket-clogging, section 1001 indictments against their adversaries to the exclusion of the much more efficient and fair proceedings conducted by the judiciary. In short, the “potential for mischief” inhering in HR. 1678 cannot be overstated. Hubbard v. US, 115 S.Ct. at 1765 (Scalia, J., concurring).
H.R. 1678 seeks to expand the felony scope of 18 U.S.C. section 1001 in the most unfair manner. Its attempted inclusion of “false statements” made in the course of judicial proceedings within the focus of section 1001 would not simply chill speech and the accused’s right to zealous representation, it would fees these rights out of the courtroom.
H.R. 1678 would make a mockery of our constitutionally-insured adversarial system of criminal justice. It would turn the trials of most importance under our Constitution, criminal trials, into mere “show” trials -- wherethe prosecutor reigns supreme, judges are disempowered, and the criminal defense lawyer and the criminal defendant are afraid to plead their cause, lest they offend the all-powerful prosecutor.
In his concurrence in Hubbard v. United States, 115 S.Ct. 1754, 1765 (1995), Justice Scalia (joined by Justice Kennedy) anticipated quite well precisely what is wrong with the concepts reflected in HR. 1678:
There [exists] a serious concern that the threat of criminal prosecution under the capricious provisions of section 1001 will deter vigorous representation of opposing interests in adversarial litigation, particularly representation of criminal defendants, whose adversaries control the machinery of section 1001 prosecution.
(Emphasis in original).
And the criminal defense bar knows first hand about such threat posed by all-powerful prosecutors. Even without the statutory power of HR. 1678, prosecutors frequently abuse their authority in ways that imply an effort to intimidate their adversaries and eliminate all “opposition” to conviction. H. R. 1678 would open the proverbial floodgates to more of these practices:
Under HR. 1678, defense lawyers and their clients would be placed in a Kaflaesque criminal justice system, under the thumb of the prosecution, threatened with indictment should they be deemed to be “making trouble” for the prosecution through the zealous advocacy that has historically and traditionally typi?ed our justice system, especially our criminal justice system.
The mere existence of the expanded section 1001 would thwart vigorous representation of citizens accused, even in circumstances where the particular prosecutor has not threatened his or her adversary and does not intend to use any such overt threat.
It is important to view the bill’s proposed expansion of prosecutorial power in the context of the ethical “opt-out” rights now claimed by federal prosecutors. Since at least 1989, the Justice Department (under both Republican and Democratic Administrations) has consistently claimed its attorneys are above the ethics laws applicable to all other attorneys. See Gerald H. Goldstein, Government Lawyers: Above the Law?, Op-Ed., Wash. Post, May 2, 1995.
In the 1989 memorandum of then-Attorney General Richard Thornburgh, the Department of Justice claimed that the extent to which federal prosecutors are bound by the ethical rules of the states licensing the lawyers is strictly up to the Department to decide, as a matter of federal executive branch policy. In August 1994, Attorney General Janet Reno codi?ed this view, through a federal regulation.
The Reno regulation, like the Thomburgh memorandum before it, asserts that irrespective of the state bar ethics rules supposedly applicable to all lawyers, federal prosecutors can contact and communicate directly with opposing parties they know to be represented by counsel. This regulation also allows federal prosecutors to “interview” employees of corporate targets, outside the presence of the corporation’s counsel.” Yet, this is the group that H.R. 1678 would allow to “police” its adversaries through felony indictments for making “false statements” during litigation.
About the only precedent in our centuries of legal tradition for the system of criminal “justice” that is envisioned by H.R. 1678 is the spine-chilling “Star Chamber” that was determined to be so offensive to the Founders and the Framers of our Constitution. This notorious and secret tribunal of 16th and 17th century England was used to dispatch the Crown’s enemies without any semblance of due process.
It was precisely this sort of unfair and totalitarian power in the hands of prosecuting authorities referenced by Justice Scalia in Hubbard that the Star Chamber wielded at the expense of the people, and which the Founders sought to prevent from recurring on these shores. Yet H.R. 1678 does not even make the claim of the Star Chamber, that “high state policy” justifies such an inquisitorial criminal law regime.
The Star Chamber:
[t]hat curious institution, which flourished in the late 16th and 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law traditions. For those reasons, and because it specialized in trying "political" defenses, the Star Chamber has for centuries symbolized disregard of basic individual rights.
Faretta v. California, 422 U.S. 806, 821 (1975). See also Professor Lawrence Freedman, A History of American Law 23 (1973):
The court of star chamber was an efficient, somewhat arbitrary arm of royal power. It was at the height of its career in the days of the Tudor and Stuart kings. Star chamber stood for swiftness and power; it was not a competitor of the common law so much as a limitation on it — a reminder that high state policy could not safely be entrusted to a system so chancy as English law. . . .
See generally also 5 W. Holdsworth, A History of English Law 155-214 (1927).
One unfortunate target of the Star Chamber’s inquiries was a Presbyterian named William Prynne. He was accused of publishing seditious pamphlets. Given the Star Chamber’s “false pleadings” ban, no lawyer would dare sign pleadings in Prynne’s defense. As a result, Prynne found himself standing at the pillory with both his ears cut off and his cheeks branded with the letters “S.L.” (for “seditious libeler”) -- before beginning his sentence of life imprisonment. See id.
An outstanding analysis on the subject just published by the CATO Institute aptly observes:
As a federal judge recently noted, “[O]ne of the lawyer’s most noble responsibilities is to protect the individual against Government excesses”; in a free society, “[t]he lawyer must stand independently and resolutely when he or she believes the government is wrong. And on occasion it takes great courage.” It is one thing to hope lawyers will be courageous; it is quite another to ask them to fight zealously for the rights of their clients in a system where their own reputations, livelihoods, and freedom would hinge on the discretion of their government adversaries. Who will challenge the government then?
Decker, Policy Analysis, id. at 14 (quoting Matter of Doe, 801 F. Supp. 478, 488 (D.N.M. 1992)).
HR. 1678 is deeply misguided and utterly incompatible with our adversarial system of justice and the most fundamental principles of fairness for which our American democracy stands. To again borrow from, and paraphrase the Hubbard concurrence penned by Justice Scalia, NACDL urges the Committee to reject outright HR. 1678 and all that it represents -- to immediately “uproot this weed.” 115 S.Ct. at 1766.
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