Opening Day Of ABA National Institute On White Collar Crime: Beyond Boilerplate: Making Motions Work

The ABA’s National Institute on White Collar Crime kicked off yesterday in Las Vegas. One of the highlights of the opening afternoon was a panel discussion regarding motions practice in a program entitled “Beyond Boilerplate:  Making Motions Work.”  The panel, moderated by David Gerger of Gerger & Clarke, covered a good bit of ground, encouraging practitioners to take a fresh perspective to motions practice, making them substantively more specific and strategic.  Among the subjects covered were motions for immunity of defense witnesses, Brady motions and motions in limine.

On the subject of motions for immunity for defense witnesses, the panel acknowledged that in practice it is an uphill battle, seemingly impossible in most districts, and actually successful in a small fraction of instances.  Panelist Kurt Stitcher of Deloitte noted that a recent study indicated that, even when the motions have been made, less than 3% have been granted.

However, the members of the panel all agreed that the problem of otherwise supportive witnesses being silenced by the specter of potential charges, particularly in instances where the actual likelihood of prosecution of that witness is very low or nonexistent, is a serious one.  Gerger indicated that he believed the inability to immunize witnesses who clearly are not going to be prosecuted is “the single greatest impediment to getting a fair defense” at trial in white collar cases. 

The group agreed, however, that the materiality standard as applied by appellate courts…should not be the standard applied by the government in assessing its evidence for Brady.

Michelle Roberts of Skadden, agreed that when these issues arise at trial, it is important to educate the court regarding how serious or not the government seems about actually prosecuting the witness. She added, however, that if she is representing the witness, even though the government doesn’t seem serious about prosecuting the witness, “No matter what, I am still going to advise the client to take the Fifth.” 

The issue of Brady was of course an important discussion item for the panel.  With the focus on large document cases, the panel reviewed the best way to address the well-worn government explanation that it can’t be responsible for finding a “needle in a haystack.”  Jonathan Sack of Morvillo Abramowitz, indicated that the less risky approach for a prosecutor would be to provide as much information, and in as specific or searchable format, as possible.  He indicated further that if the government went to that extent, it would be hard to argue that it had not met its burden under Brady.  Michael Attanasio of Cooley agreed that if the information is searchable it does change calculus.  Nonetheless, he emphasized the need, when addressing such matters with the court, to push and be very specific regarding the issues in the case, the high volume of data and the difficulty in finding the information. 

The group also plowed into the quandary of how to address potential government witnesses who, while identified by the government as supportive of the government’s case and as a result subject to the provisions of the Jencks Act, equivocate on their version of events or have given clearly inconsistent statements.  Attanasio gave the example of the multiple trial preparation sessions the government holds with witnesses, and the likelihood that there are numerous instances where witnesses waver or say things contrary to the government’s theory.  While Roberts indicated “absolutely that’s Brady,” the panel agreed that, depending on how the government interprets any inconsistency in light of the overall position of the witness, information of that nature is likely not to be typically seen by the government as Brady.

Those finer points led to a broader discussion of how the government and district courts should define Brady evidence, as opposed to how it is viewed by appellate courts when making a determination of whether the Brady evidence at issue is “material.”  Stitcher indicated that a court could logically conclude that information regarding the one-time wavering witness is not material to guilt or innocence.  The group agreed, however, that the materiality standard as applied by appellate courts, where the matter is reviewed under standard of whether it would have so undermined the process as to change the outcome, should not be the standard applied by the government in assessing its evidence for Brady.

Gerger pointed out that while the adoption of “change the verdict” version of materiality has been the prevailing approach, some cracks in this wall have been inflicted through some recent decisions at the district court level.  In those cases, the standard applied has been more in line with what the panel would deem appropriate, that is – “Does the evidence at issue undermine or run contrary to the government’s theory and proffered evidence against the defendant?”

The overriding point of many of the panel members was to use Brady motions for multiple purposes.  Beyond requesting information favorable to the defense, counsel should take the opportunity to define the standard of materiality.  Moreover, although the Ogden Memo is a non-binding statement of DOJ policy on discovery, reference to its provisions can be persuasive.  Counsel would also do well to find something in the evidence already on hand that is arguably Brady to demonstrate the good faith belief that there is more.  In addition, the latter point would tend to indicate that there may be more value in making or renewing Brady motions after having the opportunity to review discovery, as opposed to a general motion right after indictment.

In a similar fashion the panel discussed the value of targeting motions in limine to key points of evidence and using them as the start point of an important opportunity to educate the court on the defense and the specific issue.  Attanasio provided examples from his recent experience with the Roger Clemens trial, where he and Rusty Hardin represented Clemens.   He described the manner in which they continued to educate Judge Walton on the issues so that when offending evidence started to come in, the Judge was ready to rule. 

The panel concluded the session singing a rousing rendition of an original song “The Lost Promise of Brady,” with Gerger accompanying on guitar.