When Southern District of New York Judge Richard Sullivan rips the government a new one, you know it’s got to be bad. And when the opposing voice is an old friend from the office, Rich Zabel, oh boy. Sorry if this sounds a bit like schadenfreude (it’s really not), but I remember when these guys were all line assistants in the Southern District, and I can’t help but picture them giving each other the stare, like, “why are you doing this to me?”
Via Mike Koehler’s FCPA Professor:
According to a recent Law360 article (“Judge Mocks US Attorney Bharara’s Press Release”), at a recent Practising Law Institute conference Judge Sullivan “ridiculed” this press release put out by the office of Manhattan U.S. Attorney Preet Bharara in a public corruption case “calling into question the prosecutorial practice of issuing purportedly sensationalist statements about charges prior to a conviction.” According to the article, Judge Sullivan “derided a supposedly over-the-top statement issued by Bharara’s office announcing bribery and fraud charges against New York State Sen. Malcolm Smith and New York City Council Member Daniel Halloran.”
Sensationalist press releases to announce the arrest or indictment of public figures and get the office on the front page of the papers? Seriously, they do that?
‘This seems to be designed for tabloid consumption,’ Judge Sullivan said, adding, ‘there should be a question asked that is that appropriate at the preconviction stage.’”
If only there was someone, a federal judge perhaps, to ask such a question? But this slap stung his fellow panelist, who explained why sensationalist press releases are critical to legitimate governmental purposes:
According to the Law360 article, “fellow panel member and deputy U.S. Attorney for the Southern District of New York Richard B. Zabel defended the practice, saying under U.S. Department of Justice guidance, part of the reason to have a press conference or release is to explain to the public what is going on. ‘The purpose of a quote is to be quoted and draw attention to the case,’ Zabel said. “Laypeople can’t read a complaint.”
Is that not a great explanation or what? Plus, and this isn’t the sort of thing Rich can say publicly because it might be taken the wrong way, it’s incredibly boring in the office, and coming up with really catchy quotes while having a beer is one of the great perks of being an AUSA. I mean, if you can’t have fun saving the free world from corrupt politicians by making stuff up for public consumption, why bother?
As Mike comments, however, Rich’s “laypeople can’t read a complaint” strikes a somewhat disingenuous note:
The irony of Zabel’s quote of course is that “laypeople” on the grand jury issued the charging document and “laypeople” sit in judgment of the defendants and ultimately determine whether the DOJ has proved the elements of the offense set forth in the charging document.
After all, don’t we pretend that laypeople understand jury instructions? Don’t we pretend that laypeople can put aside their feelings and prejudice? Don’t we pretend that laypeople can sit on their butts for days, weeks, and pay attention to monumentally boring testimony? And then pick out the one salient bit of evidence from the haystack of abject boringness so that they can deliberate about the facts that matter?
Come on, it’s all a fantasy, and every judge and lawyer knows it. That’s why we come up with platitudes about what a great system it is, so that nobody spends too much time thinking about how utterly absurd it is to expect it to work. But I digress.
Mike goes on to remind us that this isn’t the first time a judge has pointedly called out the government for abusing the media with hyperbolic press releases.
Indeed, Judge Richard Leon commented on the general issue when dismissing the Africa Sting cases. As noted in this prior post, Judge Leon stated:
“This appears to be the end of a long and sad chapter in the annals of white collar criminal enforcement. Unlike takedown day in Las Vegas, however, there will be no front page story in the New York Times or the Post for that matter tomorrow reflecting the government’s decision today to move to dismiss the charges against the remaining defendants in this case. Funny isn’t it what sells newspapers.”
Of course, Judge Leon’s complaint reveals a bit of his own bias as well. You see he, as a person concerned with and knowledgeable about information, news, accuracy and fairness, reads the front page of the paper, and probably stories with lots of squiggly black lines on the whitish background, regardless of whether there are pictures of kittehs next to the stories. So very old school.
It seems Judge Leon’s concern goes astray when he failed to realize that no one under 40 (maybe 50?) reads the papers anymore except, at best, for the funnies. While they may skim the headlines for how another evil-doer has been captured by our brave government protectors, reporters tend to resist the urge to make much of the end result.
But this provides a rather novel and viable approach to upending the damage done by hyperbolic press releases: it would make a great piece for the funny pages, which would certainly catch more eyeballs than long stories filled with “alleged” and tales of bravery in the perp walk of politicians. And a kitteh pic or two wouldn’t hurt, either.
On a more serious note, if the United States Attorney’s office can’t control itself, and as attorney disciplinary authorities will never act to restrain prosecutorial exuberance in announcing how fabulous they are, maybe the solution lies in the hands of disgusted federal judges. And for pointing this out while sitting on the same dais as Rich Zabel, Judge Sullivan gets well-deserved props.
H/T Walter Olson at Overlawyered.