The government  had charged Lawson and Nighbert with various counts of conspiracy, bribery, and obstruction of justice. Judge Karl Forester knocked out some of the bribery charges after the government rested, but sent the rest of the counts to the jury on Thursday.

Kudos are also in order for the stellar defense team. I admit to being a little biased here. Lawson was represented by my law partners, Larry Mackey and Jason Barclay, and by Guthrie True. Nighbert was represented by Howard Mann and Kent Wicker.

The government’s case rested largely on testimony from James Rummage, who was decimated on cross-examination. The trial and pre-trial proceedings were marked by extensive litigation over alleged Brady violations. Only days before trial, prosecutors produced case agent notes indicating that Rummage had been told by a Lawson emissary to “tell the truth” to government investigators. Judge Forester ruled that this was obvious Brady material which should have been previously turned over.

I will have more to say about the Brady aspects of this case in days to come. Suffice it to say that the investigation was marked by many irregularities. For now it is enough to congratulate Lawson and Nighbert and to wish them a speedy return to normalcy. Their long nightmare is over.

Weingarten’s experience as a Superior Court juror was similar to mine. Amazingly, the prosecutor did not move to strike me, despite my status as a criminal defense attorney. The other jurors and I listened to a day and a half of testimony and argument in a gun possession case, and almost immediately voted to acquit, because the lone police officer’s story was simply not credible. I didn’t have to do any arguing. Nobody did. We all walked backed to deliberate, took a vote, and found that it was 12-0 for acquittal.

The Guidance is codified at Section 165 of the DOJ’s Criminal Resource Manual. The Criminal Resource Manual is part of the U.S. Attorney’s Manual. Although provisions in the U.S. Attorney’s Manual do not have the force of law and do not create rights, they must be followed by federal prosecutors, and failure to do so may result in disciplinary proceedings. Moreover, many of the policies in the new Guidance relate to constitutional and statutory mandates that clearly do have the force of law.

Failure of federal prosecutors to turn over exculpatory and impeaching information to defendants is a growing crisis in the criminal justice system. The Guidance and related organizational and training measures should help to stem that crisis, but do not go far enough.

According to the DOJ, “the guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of Justice.” By explicitly ordering federal prosecutors to consult the Guidance “in every case,” the DOJ is forcing even the most obtuse Assistant U.S. Attorneys to carefully and routinely consider their discovery obligations. In the future, a rogue prosecutor who suppresses clearly exculpatory information will have to explain why he or she ignored both the substance of the law and the DOJ procedures established to insure compliance.

In addition, since prosecutors now know that a very detailed review and disclosure of potentially exculpatory information is the established DOJ norm, they will arguably be less likely to rush to indict high-profile white collar cases, before carefully considering the pros and cons of such action.

The DOJ has also directed each U.S. Attorney’s Office (and each DOJ litigating component handling criminal matters) to develop and implement, by Mach 31, 2010, a Discovery Policy “with which prosecutors in that office must comply.” The Discovery Policy should be consistent with the Guidance, but must take into account “controlling precedent, existing local practices, and judicial expectations.” The individual office Discovery Policy is intended to recognize local variations in discovery practices while eliminating “inconsistent discovery practices among prosecutors within the same office.” Each office’s Discovery Policy “must set forth procedures prosecutors are required to follow to obtain supervisory approval to depart from the [office’s] uniform practices in an appropriate case.”

Each U.S. Attorney’s Office (and each DOJ litigating component handling criminal matters) must also name a Discovery Coordinator. These Discovery Coordinators have already been named and trained and must, in turn, train “their respective offices no less than annually” and must “serve as on-location advisors with respect to discovery obligations.”

The detailed steps laid out in the Guidance for gathering, reviewing, and disclosing discoverable information put much-needed meat on DOJ’s pre-existing discovery guidelines.

The Guidance contains several welcome improvements that will clearly be pertinent to white collar investigations: (1) in cases involving parallel proceedings with regulatory agencies, the prosecutor must consider whether the agency in question is part of the “prosecution team” and therefore subject to having its files reviewed for exculpatory information; (2) the prosecutor must be granted access to and review all of a law enforcement investigatory agency’s files, including the entire confidential informant file; (3) “generally speaking, witness interviews should be memorialized by the agent” and “material variances” in a witness’s statements must be disclosed, even if the variances occur within the same interview session or in a pre-trial prep session; (4) all substantive case-related internal communications, including emails, must be preserved and reviewed; and (5) if exculpatory information is discovered, the information itself must be produced, regardless of the format in which it was maintained.

The Guidance also continues certain troubling DOJ policies. Prosecutors are still charged with determining whether exculpatory and impeaching information is material in nature and therefore subject to production. Such self-certifying procedures are inherently inappropriate, because the prosecutor becomes judge and jury of what will be provided to the defense. All potentially exculpatory and impeaching information (including variances in witness statements) should be provided to the defense as a matter of course irrespective of materiality.

The Guidance also declares that case agent notes, which are not typically part of the official file, should only be reviewed “if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview.” In truth, case agent notes are virtually always Jencks Act material if the agent testifies at trial, and should be provided in such situations whether or not a memorandum has been prepared. More importantly, it is the rare official memorandum of interview that is fully consistent with the case agent’s interview notes. Since such inconsistencies are the norm, prosecutorial review is in order.

In summary, the new DOJ Guidance and related measures establish important substantive and procedural mechanisms that should reduce prosecutorial suppression of favorable evidence in white collar cases. But much remains to be done. Efforts are currently underway within the Judicial Conference of the United States to amend the Federal Rules of Criminal Procedure to insure that prosecutors turn over all exculpatory and impeaching information to the defense, regardless of materiality. Such efforts should continue unabated until binding reform is achieved.

My Uncle Adolph Westheimer (far left, with his siblings, circa 1930) died two weeks ago at the age of 94. I will miss him very much. He was a really great uncle, and was practically a second father to me when I was young.

Like his younger brothers Sam and Junior, who died before him, and like his little brother Siggy, who lives on, Uncle Adolph was a modest man. Along with so many others of the greatest generation, who lived through the depression and served in World War II, he did his duty proudly and came home to raise a family and become a solid citizen. Uncle Adolph was a veteran of Iowa Jima and a volunteer in Korea, but you would never know that from hanging around him. He did not boast, brag, or even speak about such things.

According to family legend, the doctor attending the birth told my grandmother that Adolph was too sickly to live. My grandmother ignored the doctor and nursed her first-born back to health. When Adolph was a toddler, he thought that his name was Adog, so he called himself Abow-wow for awhile. The name Adolph wasn’t very popular in America during World War II.  Adolph became Joe during that struggle and the name stuck all through his professional career at Southern Pacific. Two of his favorites songs were “The World Is Mine Tonight” and “I’m A Ding-Dong Daddy From Dumas.”

It is impossible to distill all of the great memories I have of Uncle Adolph in the space of a few minutes or even a few hours. Two things stand out that I want to talk about.

First–the driving. I spent literally hundreds of hours in the back seat of his car when I was young. Uncle Adolph’s running commentary on the shortcomings of other drivers became part of the very essence of my automotive being. Even to this day, I channel his denunciations effortlessly. When I tell my passengers that the driver ahead of me is “making a career out of a left turn” it is my Uncle Adolph speaking through me.

Second–a conversation. It is sometime around 1998. Both of my parents are dead. After a career as a federal prosecutor, I have gone to Washington to work for Ken Starr on the Whitewater Investigation. I become one of Judge Starr’s deputies and participate in the grand jury questioning of the President of the United States. In the quiet of an evening phone call Uncle Adolph softly reminds me of how proud my parents would be. A simple gesture on his part. Coming straight from the heart. Moving me deeply.

And now he is gone. We are saddened, but feel fortunate to have had him around for so long. Our hearts go out to Aunt Cookie and to my cousins, Paulette, Linda, and Vaughn.

Here also is Judge Land’s written order in U.S. v. Bunkley, which is well worth reading. This is a relatively rare example of a federal judge stepping in and challenging the plea bargaining power of the government through rejection of a stipulated drug quantity. The Order is interesting for the light it sheds on the Shelnutt case and for the methodology resorted to by Judge Land to impose a Booker-based upward variance in the face of Guidelines Section 1B1.8.