Criminal defense lawyers do it every day on behalf of their clients who are being investigated.
They make presentations to the government, trying to convince them not to file charges. We always debate whether we should make the pitch and if so, how many cards do we show. Up until now, it was a tactical decision.
Not anymore.
SDNY prosecutors decided they wanted to use the presentation made by the defense (Abbe Lowell, who is a terrific lawyer) in the Senator Menendez case against him. They contend that Menendez obstructed justice by having his lawyer make a false presentation. Not only did they indict him for it, they asked the judge if they could use slides from Lowell's presentation. Shockingly, the judge said yes.
Really disappointing...
So from now on, defense lawyers are going to need to ask for written confirmation from prosecutors that they will not use the presentation in future proceedings.
The NY Times covers what happened here:
At the meeting, Mr. Lowell made his presentation “based on what he was told by Menendez,” the document says.
Before the September 2023 meeting, Mr. Lowell again discussed with Mr. Menendez what the lawyer would say, incorporating feedback from Mr. Menendez, the proposed summary says.
Mr. Lowell also made the PowerPoint presentation, titled “Senator Robert Menendez, Presentation to U.S. Attorney’s Office, Southern District of New York, Sept. 11, 2023.”
***
Mr. Lowell said “something along lines if you can tell us more about what you are thinking/where your heads are at, we can do a better job explaining where we (defense) are at,” the memo shows.
The beginning of the meeting, which ran 90 minutes, was cordial and friendly, according to the memo, but toward the end, especially after Mr. Lowell appeared to understand the office “was not going to be asking many questions or show its hand,” the tone shifted. Mr. Lowell seemed unhappy and was “trying to convince” the prosecutors “to talk to him more.”
“In sum, Abbe seemed to want to learn more about whether there were things that he had not given an explanation for, that might bear on charges,” the memo says.
In the dispute over whether the slides from the PowerPoint presentation should be admitted at trial, prosecutors argued that they contained false statements, supporting the obstruction count.
“The jury’s entitled to conclude that falsity was intentional,” a prosecutor, Daniel C. Richenthal, said.
Will you ever make a presentation to prosecutors again?
7 comments:
Can’t think of one time it has worked. They don’t have open minds. It’s a trap.
Disturbing.
It's not a trap. More like a waste of time. Especially in a high profile case like this one where there is no way the government is, of a sudden, going to change its mind. When i practiced, I marveled at the line of defense attorneys who would march to Washington for a RICO conference and try to dissuade the govermnet from indicting their clients when the indictment (and obligatory press release) had already been drafted. Maybe it impresses the client. I could never figure it out.
If the client is going to lie and bullshit his own lawyer, and he knows he is sending his lawyer in with a bunch of BS, then it is on the client.
Of course, if the lawyer knows that he is telling a bunch of lies on behalf of his client because they don't think the government has the full picture, then fuck them both.
Either way, dumb move in this case.
But really, the use of it seems a bit over the top in this case - they have shoes stuffed with cash and gold fucking bars in the house. They really think a facakta presentation is going to be what convinces the jury. Feels more like a shot at the lawyer than anything else...and if the jury likes the lawyer...could blow up in their faces.
David is too classy to dump on a fellow criminal defense attorney, but between this and the Hunter Biden criminal case I'm starting to think that Abbe Lowell might be a tad overrated. Most of the DC defense bar legends these days are deal-makers and Capitol Hill navigators, not top-notch trial lawyers.
Presentations are sometimes useful, if they foment a dialogue with the prosecution and they will show and tell. Howeve, they very often don't; they listen and then send you on your way with no idea whether it was helpful or harmful. And there are prosecutors that think that defense lawyers are mere tools for lying defendants, hence prosecutors wanting to use presentations to support obstruction charges, and sometimes implicate the defense lawyers as willful obstructionists. Much caution must be exercised. This is an adversarial system, and you are the adversary.
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