Lawyers, being the notorious competitors they are, don't like to lose -- especially in highly visible courtroom trials.
So it is not unusual for a lot of second-guessing to take place when a public figure is acquitted of criminal charges after a lengthy investigation that has drawn intense media interest. Prosecutors who lose such cases have a genuine and legitimate interest in trying to ascertain what went wrong, for such purposes as analyzing the case in retrospect and evaluating whether to bring future, similar cases.
The unsuccesful prosecution of Smith Bagley, an heir to the Reynolds tobacco fortune who became intimately associated with the Carter administration as a friend and supporter, was clearly a case that called for such questions to be asked by the Justice Department.
He had been indicted on what was a novel, and many say unprecedented, theory of stock manipulation. A jury acquitted him at his trial last year without his having to call any witnesses on his behalf. Clearly, something went wrong.
The whining, sour grapes answer supplied by the prosecutors who handled the case shocked even some of their Justice Department superiors. It passed off in one phrase that some "minor factors" many have contributed to the acquittal. i
Then, however, it went on for eight more pages blaming the loss specifically on the conduct of U.S. District Judge Robert R. Merhige Jr., who had presided over the trial. It blatantly accused Merhige of an "anti-government bias," claimed his courtroom took on a "circus-like" atmosphere and said his conduct "ensured" an acquittal.
The tone of the letter was intemperate and colorful. That probably ensured what happened next: It was leaked to the press in its entirety.
As might be expected, the defense team and bar groups rushed to the defense of the judge and issued resounding statements in his support. Many thought the whole situation had quietly ended there.
However, the Justice Department's internal conduct-monitoring unit, the Office of Professional Responsibility, could not overlook the allegations that easily. Too many outsiders and respected members of the bar had now raised questions about the conduct of the two persons who signed the letter -- U.S. Attorney H.M. Michaux Jr., of North Carolina's middle district, and assistant U.S. attorney Patricia W. Lemley, who had tried the case -- and the FBI agent on the case, Zachary Lowe.
The department reportedly has finished its internal probe and has written a still-secret report raising a series of troubling questions about the government conduct in the case, sources said.
Persons who are familiar with the report say that it is probably one of the most serious reviews in recent years of allegedly questionable conduct by Justice Department attorneys and that it recommends disciplinary steps against the North Carolina prosecutors and the FBI agent.
The Justice Department, meanwhile, has decline to comment on the matter.
Attorneys who get involved in civil cases that were once the subject of criminal grand jury probes got a helping hand from U.S. District Chief Judge William B. Bryant last week. Bryant said grand jury secrecy rules don't automatically apply in such cases and that materials originally subpoenaed for criminal investigation can be later turned over to attorney in civil cases under certain circumstances.
The ruling itself wasn't all that earth-shattering; it was an application of a U.S. Srpreme Court ruling on a similar issue in another case last year.
But the circumstances of this ruling had one interesting element: It involved a request for access to material subpoenaed by a Watergate grand jury for a probe of Nixon re-election campaign funding practices. The request was made by plaintiffs in a Missouri lawsuit who are seeking more than $200 million in damages from manufacturers of allegedly defective truck tire rims, who also allege the tire companies contributed money to the Nixon campaign to stop a federal safety probe of the rims in 1972.
In granting access to the material, Bryant commented on what he called a "misplaced" concern by the Justice Department that release of the material would deter future witnesses from trusting grand jury secrecy rules.
Bryant noted that many Watergate grand jury witnesses had already publicly let their Watergate activity "out of the bag" through books and other statements, and also reminded the department that former Watergate Special Prosecutor Leon Jaworski's own "literary endeavors" had discussed the exact material at issue in the lawsuit.
All in all, Bryant added, his ruling is "only an acknowledgement of the rather unique circumstances accompanying the Watergate affair."
The D.C. Bar passed a budget last week based on a dues rate of $75 per member. The current dues are frozen at $50 a member, and the higher figure cannot be charged without permission from the D.C. Court of Appeals, which is considering a request that the dues ceiling be lifted even higher -- to $150 a member -- for future increases.
The international trade and customs law committee of the Federal Bar Association is presenting a U.S-Canada Trade and Investment Conference on today and tomorrow at the Four Seasons Hotel here. The conference will focus on major trade and investment problems from the point of view of practitioners and government officials on both sides of the border.