Stranger in a strange land

Judge Ruiz just issued his formal order in United States v. Agresti, after last month certifying his intention to grant a new trial in the case of a doctor who was convicted of Medicare charges arising from his drug testing of sober home residents to prevent and detect relapse.  The Order offers a scathing rebuke of the government's star witness, sober home owner Kenneth Bailynson, who lied on the stand.  Judge Ruiz found that "[g]iven the crucial role Bailynson's testimony played during Agresti's trial, a new trial is warranted."  

Richard Klugh, with Jenny Wilson and Greg Rosenfeld, handled the case.  

The Order is a really entertaining read.  It starts off:

"The famed science-fiction writer Robert A. Heinlein once wrote that the 'slickest way in the world to lie is to tell the right amount of truth at the right time--and then shut up.'  The star witness in this case, Kenneth Bailynson, might have been wise to follow Heinlein's advice---instead, he forgot to shut up."  

The order details how Bailynson "weaved lies with truths" in "crafting a narrative that pitted his word against Agresti's," and went further to "ensure[ ] that the only person who could pull a thread out of the intricately woven tapestry was dead."  Even the government at one point admitted that without Bailynson, there was no chance of a conviction. 

As Judge Ruiz writes, "Agresti was put on the defensive--having to rebut a story for which there was no proof beyond Bailynson's testimony."  Bailynson's perjury led to Agresti's conviction. After the conviction, Bailynson admitted he lied--but then he shifted gears again and said he lied about lying.  At one point he admitted that he preferred to be seen "in the public eye as a liar and a perjurer" rather than a "rat, snitch and government informant."  

In granting the new trial motion, Judge Ruiz rejected the government's arguments that Bailynson's post-trial statements were "merely impeaching because the Defendant would have been convicted even had the jury heard them at trial and discounted Bailynson's testimony," and that the lies did not amount to perjury because Bailynson "retract[ed] his recantation" of his testimony.  "[T]he Government's attempt to create separation between a motion for new trial when based on a retracted recantation as compared to perjury is misleading--at best," Judge Ruiz wrote, finding that the lies were perjury and that the evidence of perjury was material and more than merely impeaching or cumulative.   As Judge Ruiz pointed out: "it is one thing to call someone a liar and quite another to know someone is a liar."  

Kudos to Judge Ruiz for doing the right thing and doing so in such a thorough and fun order.