Tobacco Witnesses Were Told To Ease Up

By Carol D. Leonnig
Washington Post Staff Writer
Thursday, June 9, 2005

Government lawyers asked two of their own witnesses to soften recommendations about sanctions that should be imposed on the tobacco industry if it lost a landmark civil racketeering case, one of the witnesses and sources familiar with the case said yesterday.

Matt Myers, president of the Campaign for Tobacco-Free Kids, said the Justice Department's lead trial lawyer called him May 9 to say her superiors wanted him to scale back the recommendations he had made in written testimony. They sought to remove his suggestions for a ban on tobacco company methods of marketing to young people before Myers took the stand. Myers said he refused to do so.

A second witness, scientific expert Michael Eriksen, also departed from recommendations in his earlier written testimony, court documents show. Eriksen declined to comment, but four separate sources familiar with the case said Justice Department lawyers had asked him to do so.

The two men were called by the government as part of its lawsuit, which contends that the nation's largest tobacco companies engaged in a 50-year conspiracy to defraud the public about the dangers and addictiveness of smoking.

They were considered crucial in helping the government establish financial penalties and other sanctions to be imposed on cigarette manufacturers to help prevent young people from becoming smokers and to protect against what the government calls additional fraud on the public.

On Tuesday, after eight months of courtroom argument, Justice Department lawyers announced that they would ask the industry to pay $10 billion -- rather than the $130 billion previously recommended by a government expert witness -- for smoking cessation programs. The reduction stunned anti-smoking activists who have followed the six-year-old case, and prompted tobacco lawyers to say in court Wednesday that the government's case had fallen apart.

According to sources involved in the case, high-level officials at Justiceordered the cut despite objections from career lawyers who have worked on the trial, in some cases years.

Justice Department spokesman John Nowacki said the department thought some of Myers's suggestions would violate the tobacco companies' free-speech rights. He said he had no information about Eriksen's testimony.

Of the penalties recommended by the government, Nowacki said: "All steps were taken for legally appropriate reasons."

Yesterday, Democrats on Capitol Hill and public health officials contended that the sharp penalty reduction was an attempt by the Bush administration to bail out the tobacco industry and soften the blow of what had been the largest civil racketeering case in history.

Seven Democratic Senate and House members called on the Justice Department's inspector general to investigate possible political interference by Bush appointees in the government's tobacco case, citing news reports that Associate Attorney General Robert D. McCallum Jr., a former lawyer for tobacco giant R.J. Reynolds, ordered the downsizing of the penalties. Lawmakers also questioned why McCallum was allowed to participate in the government's case.

"The Justice Department's approach to tobacco litigation should be based on the facts of the case and not political favors to the tobacco industry," wrote Rep. Henry A. Waxman, (D-Calif.) and Rep. Martin T. Meehan (D-Mass.). "It is highly unusual for government prosecutors to abandon evidence-based testimony by their key witnesses at the last moment in a major trial." Democratic Sens. Edward M. Kennedy (Mass.), Frank Lautenberg (N.J.), Richard J. Durbin (Ill.), Ron Wyden (Ore.) and Tom Harkin (Iowa) made a similar request.

When the trial opened in September, the government asked that the industry be forced to turn over $280 billion in past profits, plus billions more for smoking cessation programs. But an appellate court ruled in February that the companies could not be forced to return past profits, leaving the cessation program as the most significant penalty the industry faced.

Philip Morris lawyer Ted Wells told the court yesterday that the government's reduction in its demand for a cessation program was an indication the government's case was in "disarray." But Judge Gladys Kessler, who will decide whether the industry engaged in a racketeering conspiracy and whether sanctions should be imposed, told Wells there could be "other influences" that led to the decision.

Myers said that when he received the call from lead trial attorney Sharon Eubanks, he told her he was very uncomfortable with the idea of changing his testimony.

"I was told my testimony went beyond what the department was comfortable with," he said.

Eriksen, former director of the Centers for Disease Control and Prevention's Office on Smoking and Health, had initially proposed in his written report that the industry be prohibited from using any imagery in its advertising, a plan that would put an end to colorful cigarette ads and the legendary Marlboro Man. In his altered testimony in recent weeks, records show, he instead recommended a ban on image-based advertising that was misleading or directly targeted to youth.

Legal experts said attempts to change Myers's testimony are more troubling, because he was called to establish facts on behalf of the government. Lawyers said that recommending changes to Eriksen's testimony would not be improper because, as an expert, he was chosen by the government to provide his opinions.

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