Updated: Nov 30, 2019
I had a mentor. My legal ethics professor – the late great Monroe Freedman. I got an A in his class because I understood two things: “zealous advocacy” and being “a client’s champion against a hostile world.” This is what a lawyer should aspire to. These are supposed to be not only the best traits of the profession but our oath as lawyers. I was a very good student.
Some of you true believers that wanted more out of law than money – there are not many of us – may have found that the greatest attributes of a lawyer are also the downfall of a lawyer. Try vigorously defending a client against the Government in federal court. Don’t try too hard though or you will be hounded and threatened. Plead out no matter how innocent your client is. Or if you must go to trial – try your client a good conviction – in other words show up and give a non-opening-opening. An easy going cross. Don’t worry about Brady, Giglio and Roviaro – good God what’s that. Whatever you do don’t fight back or powerful people will get upset. And don’t forget the killer summation where you remind the jury that guilt must be proven beyond a reasonable doubt. The jury wants red meat – not burdens of proof.
It’s worse if you dare vigorously represent a small company and its middle class owner against an Insurance Industry RICO. You’ll be threatened with sanctions for asking for permission – when it’s a right – to make a motion to dismiss. You may find the Court giving the insurance company’s lawyers case law and citations to cases that you as an attorney lost – just so the Insurance Company can attack you personally for being a lawyer.
We will get into that at some future point in time. I promise it will be infuriating.
For now remember when industry brings a RICO the pleading standard doesn’t exist. When a regular citizen brings a RICO against industry the pleading standard is insurmountable.
And forget Bivens civil rights cases against the federal government or 1983 cases. The so called “plausibility standard” so unevenly applied – the Pandora’s Box of judicial bias – has taken care of that -- they are dismissed in droves and your are threatened with sanctions if you bring them. (To be discussed and it will be unnerving)
It brings me to Elizabeth Warren – she may be President one day. But forget politics. Listen to what she had to say. Senator Warren stated in a Speech to the American Constitution Society on June 13, 2013 entitled: The Corporate Capture of the Federal Courts
I wanted to come here today because I had a message I wanted to bring personally. And here it is: there is an intense fight going on, right now, over what our federal courts will look like. It is a fight over whether those courts will remain a neutral forum, faithfully interpreting the law and dispensing fair and impartial justice – or whether we will see the corporate capture of the federal courts, with the courts transformed into one more rigged game. And right now, we are losing that fight.
The reasons are many.
Consider the composition of the federal bench. Look at the federal bench and you will see a striking lack of professional diversity among the lawyers who currently serve as federal judges. According to a study published by ACS earlier this year, as of 2008, the federal appellate bench was "dominated by judges whose previous professional experience is generally corporate or prosecutorial." [Really both -- former AUSAs abound] The study examined the biographies of 162 judges listed in the Almanac of the Federal Judiciary. It found that 85% of the judges had worked in private practice, and also noted that it was "clear from the judges’ biographies that a sizable number of them worked for large, well-known firms that tend to represent corporations." Meanwhile, only 3% - five judges total out of 162 - had substantial legal experience working for non-profit organizations. And none of those five judges had worked for such an organization more recently than 1981! Similarly, only 3% of the judges had worked for organizations or government agencies that enforce civil rights. Only three judges TOTAL appeared to have worked for organizations representing low income Americans, and only one judge—one out of 162!—appeared to have substantial experience litigating consumer protection cases.
This is not politics. This is fact. Please I didn’t say the above. Senator Warren did. Go after her.
Welcome to the District Courts in the Second Circuit. Welcome to the Second Circuit.
A Tough Case with the Average Rogue Prosecution
Recently I had a case where I represented a client. As the case progressed the Government began to harass some of my client’s former employees in order to turn them against my client. The employees were scared. They asked for a recommendation as to who they should retain. The client -- let's call him Lawrence -- suggested me. They retained me but not before being informed of any potential conflict and signing a waiver. I made sure to tell them that if they were a target of an investigation they might be able to escape criminal liability – or face lesser criminal liability – if they had information that could be used by the Government to attempt to obtain a conviction of Lawrence. I did this with Lawrence's permission. I also informed them that the Government may not have enough information to charge them with anything. But that could change if they talked to the Government and gave them information.
In all cases the former employee/potential witness/potential defendant told me that they did nothing wrong – nor did Lawrence.
Of course when they refused to cooperate with the Government the Government’s allegations flew wildly in a motion to disqualify me from representing everybody including my original client Lawrence. I fought. I informed the Court of the following (the names have been changed to protect the innocent):
Once again the specter of a strategic conflict of interest motion has reared its tactical head. But this matter is really about protecting citizens against a runaway prosecution riddled with misconduct. We are going to get into the above shortly.
But first the Government neglected to mention that my correspondence to the Government stated that my client Jane Doe (obviously I have substituted a fictitious name) would testify before the grand jury in exchange for immunity. The Government’s failure to respond to that offer means that they view Ms. Doe as a potential defendant.
Ms. Doe has a prima facie right to counsel of her choice. United States v. Stein, 541 F.3d 130, 151 (2d. Cir 2008) To that end the undersigned has vigorously protected Ms. Doe’s rights with no fear of the consequences to my other client Lawrence and in the face of rogue Government tactics. [Correspondence to Government at Exhibit 1] [See attached] Indeed a quick reading of the annexed correspondence will demonstrate zealous advocacy on the part of the undersigned on behalf of Ms. Doe.
The correspondence to the Court continued:
Finally it is time to address the 800 pound gorilla in the room. Since 1932 and the decision in Powell v. Alabama, 287 U.S. 45, 57-58 (1932) there is no species known as a Government witness. [The Government maintained that I could not talk to let alone represent certain individuals because they were "Government Witnesses"] All witnesses belong to themselves and may talk to whom they want to talk to and be represented by whom they want to be represented. The Government can label someone a “cooperating witness” as they have done here to Ms. Doe, but the facts tell us different or else Ms. Doe would not have sought out my representation.
And this is what I had to say to the Court about the Government’s actions:
THE ROGUE PROSECUTION
I am going to let the facts speak for themselves.
I. The Grand Jury Subpoena
As stated to the Government in the above referenced correspondence annexed at Exhibit 1:
I am informing you that what appears to be the U.S. Attorney’s Office standard rider is misrepresentative. [I am providing the reader with a copy of the subpoena and rider] Specifically wherein it states:
1. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.
This is surprising since the law could not be any clearer on this point:
The Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5. As the Supreme Court of Ohio acknowledged, this privilege extends not only "to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant." Hoffman, 341 U.S. at 486. … [W]e have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions . . . is to protect innocent men [and women] . . . 'who otherwise might be ensnared by ambiguous circumstances.'" Grunewald v. United States, 353 U.S. 391, 421, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U.S. 551, 557-558, 100 L. Ed. 692, 76 S. Ct. 637 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U.S. at 421-422.
Ohio v. Reiner, 532 U.S. 17, 20-21 (2001) See, also United States v. Greenfield, 831 F.3d 106 (2d Cir. 2016) (Emphasis added)
The Supreme Court has recognized that the [5th Amendment] privilege "has consistently been accorded a liberal construction," Miranda v. Arizona, 384 U.S. 436, 461, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and, in accordance with this principle, the Fifth Amendment privilege has been found to extend not only to answers that are directly incriminatory but also to those that, while not themselves inculpatory, "would furnish a link in the chain of evidence needed to prosecute the claimant," Ohio v. Reiner, 532 U.S. 17, 20, 121 S. Ct. 1252, 149 L. Ed. 2d 158 (2001) (per curiam) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)).
Id. at 114.
In addition the addendum is misrepresentative at number “3” where it states:
If you have a lawyer, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with your attorney if you so desire.
Given the state of the law the grand jury or the persons we are really talking about – government attorneys – have no ability to deem what is “reasonable” as to the witness’ “opportunity to step outside the grand jury room.” To wit no one can tell, intimate or even signal to a witness that she cannot step outside the grand jury room to consult with [her] attorney if [she] so desires.”
As it stands the addendum chills a citizen layperson’s rights under the 5th and 6th Amendments. I will take these issues up with the DOJ directly but the second issue – “consult with your attorney” – could be an obvious problem should you desire to still proceed. Perhaps we need to get a preliminary ruling on this.
The addendum is an outright misrepresentation meant to ensnare the average citizen into believing their rights are severely limited. Unbelievably the Government has violated Miranda on paper no less
I was not done yet:
II. The Prosecution Picks a Citizen’s Lawyer
I know the following has occurred at least three times in this case.
Annexed at Exhibit 2 is the following screen shot of a text received by and sent by a witness. Two separate pages – I did my best printing it from my email. [I am providing this to the readers]
The Government’s lead investigator on this case – Agent Jones [fictitious name] – sent the following text to a witness whose name has been redacted out of decorum. In the text Jones stated:
Hi [Ms. Smith -- (fictitious name)] – this is Jones. I stopped by your house yesterday. Can you meet me this Friday or Monday (10/2) so we can get you private attorney assigned free of charge to you. You would need to meet me near 26 Federal Plaza, NY (my office). Thanks.
“Ms. Smith” responded:
I am finding my own lawyer. Please do not contact me or attempt to contact me again. Please do not have anyone from the Government contact me. I am upset. I told you that was getting my own lawyer and you continue to question me loudly and threaten me loudly so that my neighbors could hear. It’s improper for you to offer me your lawyer when I told you I am getting my own.
The above is unctuous which comports with much of my knowledge of the investigation in this matter. This is economic blackmail at best. Further I assume that the Government is referring to some form of CJA – but perhaps given the Government’s underhandedness it is wrong to assume. In any event CJA cannot just represent someone without financial qualification unless directed to by a Judge.
As such the Government’s request for standby CJA counsel in this matter must be met with suspicion which is beyond skepticism. I have no idea how deep these waters run but none of the above sounds even slightly above board.
Through insiders I know that in District Courts in this Circuit the Government is very close to CJA counsel. Government lawyers and agents attend holiday parties that are attended by both CJA counsel and Judges. It is very easy for the Government to arrange to have CJA counsel of their choice available to talk a citizen into cooperation. The quid pro quo for CJA is the assignment which pays them money. Citizen tax payer money. Although I will add that I have worked alongside CJA counsel in the past and they were quite good.
But back to the story. I further informed the Court of the following:
THE CROSS MOTION
We have previous argued that our investigation has found that Special Agents Moe, Larry, and Curly [names changed to fit their best characteristics] have all been investigated and disciplined to varying degrees for various misconduct involving witnesses. This misconduct created an improper influence upon the witnesses that impaired the witnesses’ credibility. Obviously this misconduct would also impair the credibility of the agents. This has nothing to do with the above mentioned lies to, and rough handling of, witnesses.
The Government should turn over the personnel/disciplinary files for each of the above agents to the Court for in camera inspection
The Government has responded through boiler plate assertion that there is no Brady material.
In the past the assertion of misconduct was based upon knowledge that the agents in this matter helped facilitate the provision and misuse of medications by witnesses. Now we have yet more abusive misconduct on the part of at least one agent and her associate: one FBI Special Agent Stan Laurel – who continually accompanies Agent Moe through her abusive sojourns into the rights of witnesses.
Based upon this new evidence and totality of the evidence the Government should turn over the personnel/disciplinary files for each of the following agents to the Court for in camera inspection: Moe, Larry, and Curly.
With Much Respect,
Raymond J. Zuppa
It is tough to follow the strictures and edicts imposed upon us by the legal ethics that govern us all.
You might find yourself hated. You might even find yourself in deep trouble. You might love every moment of it.
Good Night and Good Luck.
 The correspondence also notified the Government of what I obviously knew would be considered a conflict by them just in case they were not attentive.
 Powell sits in a library somewhere like a cure for cancer sits in a lab never once having its promise fulfilled. It is no wonder an article by Adam Liptak published in the New York Times on April 23, 2008 entitled “U.S. prison population dwarfs that of other nations” cited to the findings of a number of studies. This included the finding that:
the United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners. Indeed, the United States leads the world in producing prisoners, a reflection of a now entirely distinctive American approach to crime and punishment … The United States comes in first, too, on a more meaningful list from the prison studies center, the one ranked in order of the incarceration rates. It has 751 people in prison or jail for every 100,000 in population. (If you count only adults, one in 100 Americans is locked up.