There are a few aspects of sports that carry lessons that lawyers should know.  That the rules of the game matter.  That the team comes before the individual.  That fear of failure is surest way to lose.  You stare down pain, adversity and fear, and just do what you have to do.

These must have been the lessons learned by Cormac J. Carney, who was appointed by President George W. Bush to the United States District Court for the Central District of California.  He is the only federal judge who played in the old United States Football League.

At UCLA, he was an All-American wide receiver. He was an Academic All-American in 1981 and 1982, the first Bruin football player to win the honor twice, and was named one of the NCAA’s top eight student athletes for 1982-83.

He played one season with the Memphis Showboats of the United States Football League, then went to Harvard Law School on an NCAA Post-Graduate Scholarship.

On December 15th, Judge Carney caught the Hail Mary.  Not only did he throw out the indictment against Broadcom’s Chief Financial Officer William Ruehle, co-founder Henry Nicholas, General Counsel David Dull, but he vacated the plea by co-founder Henry Samueli and dismissed his indictment as well.  It was a watershed decision.

BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE WITNESSES CRITICAL TO MR. RUEHLE’S DEFENSE. THE CUMULATIVE EFFECT OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND COMPROMISED THE INTEGRITY OF THE TRIAL.

TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF MR. RUEHLE’S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR IMPROPERLY INFLUENCE WITNESSES. SADLY, GOVERNMENT DID SO IN THIS CASE.

The original transcript was produced in all capital letters, so I’ve stayed true to its form.  It’s one of the few decisions worth being published in all caps,  These words need to be shouted into every courtroom, at every judge, at every prosecutor, across the nation.

It’s difficult for non-lawyers, even lawyers who don’t practice in federal court, to appreciate how straight-forward, how bold, how clear this decision is.  More importantly, the underlying problem, the intimidation of witnesses and abuse of criminal sanction against individuals and their families, is a pervasive weapon used by the government against mounting a defense.  The government does everything in its power to make certain that they aren’t playing on a level field.  A football player understand this and knows how wrong it is.

The list of actions taken to coerce exculpatory witnesses not to testify for the defense is long, going as low as to threaten to force Dr. Nicholas’ 13 year old son to testify against him.  Even that was not enough, with the government trying to suborn perjury by having witnesses change their testimony to inculpate Ruehle.  For any defense lawyer who tries to get witnesses together to testify on behalf of a defendant, the story is painfully old news.  The government has gotten to witness after witness, long before the defense has a chance, and has either scared them so that they won’t speak with, no less testify for, the defense or flipped them through threats of prosecution. 

The government must not do anything to intimidate or improperly influence witnesses?  It does so all the time.  All the time.  It’s one of the government’s most fundamental tactics, to strip the defense of necessary testimony.  It’s always a shock to defendants that people they know so well, worked with, trusted, have turned their backs on them because they fear the government.  The intimidation is overwhelming.  The pressure unbearable.

It’s extremely rare for a person to show the fortitude to stand up to the government and say, “do whatever you want, I’m going to tell the truth.”  And as rare as it is in general, it’s even more rare in white collar criminal prosecutions.  Masters of the Universe are the first to cave in when their self-interest is threatened.  Forget loyalty or honesty.  They will do anything to save their tail.

But United States District Judge Cormac Carney, who knows that a wide out is allowed the opportunity to catch the long ball without being pushed by the end or having the safety’s arms holding his down, wasn’t afraid to throw the flag. 

At the end of his decision, Judge Carney recalled a passage from Berger v. U.S.:

“THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE, NOT OF AN ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE  OBLIGATION TO GOVERN IMPARTIALLY IS AS COMPELLING AS ITS OBLIGATION TO GOVERN AT ALL, AND WHOSE INTEREST, THEREFORE, IN A CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A CASE, BUT THAT JUSTICE SHALL BE DONE. AS SUCH, HE IS IN A PECULIAR AND A VERY DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH IS THAT GUILT SHALL NOT ESCAPE OR INNOCENT SUFFER.

HE MAY PROSECUTE WITH EARNESTNESS AND VIGOR. INDEED, HE SHOULD DO SO. BUT WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT LIBERTY TO STRIKE FOUL ONES. IT IS MUCH HIS DUTY TO REFRAIN FROM IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT IS TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE.”