JUSTICE DEPARTMENT MISSES POINT; PROSECUTORS SHOULD BE CAREFUL

Here in New Mexico, in announcing the indictments against Robert Vigil, our elected State Treasurer, United States Attorney David Iglesias, made some reference to the Treasurer using the treasury like an ATM machine. The accused, now resigned, is represented by Sam Bregman, an Albuquerque attorney who also has been trying his case in the media (tit for tat, fair response, etc., do not apply if either lawyer is wrong).

Bregman filed a motion asking for some relief because of the U.S. Attorney’s public statement about the ATM machine; and in the motion pointed out that the prosecutor has left the impression that there was a direct theft of cash from the State treasury. Bregman, the defense lawyer, invited the attention of the federal Judge to the fact that the charges were kickbacks, not placing the hand in the till to take money. In so doing, Bregman was claiming that the public remarks of the U.S. Attorney were argumentative, went beyond the mere recitation of the facts alleged in the indictment, and tended to taint the jury pool. He was also claiming that an allegation of stealing the public money directly, was worse than an allegation of taking kickbacks or bribes or extorting bribes.

In the response reportedly made by the office of the U.S. Attorney, it was argued that the metaphor of the accused’s conduct was accurate. Big deal. The metaphor (or simile) probably was accurate, in a broad sense, because when the accused authorized payment of taxpayer money, knowing he, the accused, would get some of that money back to himself through kickback, bribe, or extortion, that is like using the State treasury like an ATM machine. So is the U.S. Attorney cleared? There remains the matter of using a metaphor at all.

The use of the metaphor is argument, and places the integrity and personal beliefs of the U.S. Attorney into the balance against the accused. This tends to taint the jury pool. This is wrong, even if it does not taint the jury pool. And it is all under the guise of a permissible, simple public announcement of an investigation and the resulting indictment (things the public is entitled to know). The U.S. Attorney has every right to characterize the accused’s conduct as use of the State treasury like a personal ATM. But the place and time were wrong. This should be a part of the argument in the trial, after all the evidence is in.

Special Prosecutor Pat Fitzgerald made a similar mistake when he publicly announced the indictment of Scooter Libby. Fitzgerald used a baseball analogy. First, he referred to a pitcher (unknown) who winds up and throws a fastball and “. . . hit the batter right smack in the head and it really, really hurt them, you’d want to know why the pitcher did that . . . .” And later he stated, “And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure out what happened and somebody blocked their view.”

Fitzgerald spoke of how important the investigation [and case] are to all of us, and that it shows the world thus and so; and the investigation is important because we need the intelligence [that the CIA is able to get with volunteer agents who expect and need protection]. (Washington Post website.)

In a sense, there is probably no harm done. The jury pool may not be tainted by such tactics. The public has heard so many lawyers, including prosecutors, try their cases in the media, that the public may very well take such tactics as mere lawyer talk. Like F. Lee Bailey and Alan Dershowitz saying (as if they knew) that O. J. Simpson was innocent of butchering his ex-wife. Like the car dealers claiming that they have a “sale” going on, where one can “save” thousands of dollars; and that the manufacturers are going to throw in a “rebate,” and you can do it all on credit with “0%” interest. Does the public really fall for those claims? Perhaps the public is smart enough to disregard all of these pretrial histrionics in criminal cases.