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Wednesday, September 8, 2010

Scapegoats, Show Investigations and Preserving Evidence

Following New Jersey's Race to the Top $400 million fiasco: Tuesday brought the news that the outside consultant reportedly paid $500,000 to help prepare the application (an outfit called Wireless Generation), is already having its role reviewed by New Jersey Attorney General Paula Dow's office.

There are questions, of course, about what happened in the application preparation and submission process. There are also questions about the real purpose of this "review," which in other instances might be a more threatening "investigation.". (What's the difference? Follow the synonyms. A "review" may be equated with "cover-up" while "investigation" may be equated with a predetermined conclusion and selected scapegoat...in other words, a "show investigation" in either case and "the facts be damned".)

Any review that is less than a legitimate fact-finding effort will validate individuals' decisions not to testify (as Schundler did). Moreover, I would be concerned -- as the State Assembly already is -- about the danger and opportunity for document destruction, alteration, secretion and metadata destruction.   Any of these activities may qualify as "obstruction of justice" and anyone thinking about doing any of these things should seriously consult -- and follow the advice of -- a seasoned criminal defense lawyer.

The computer metadata indicating who made revisions, when and perhaps hinting as to why they were made will be crucial in forming a chronology, if the metadata and other computer files have not been tampered with already.

Former education commissioner Bret Schundler strongly implied in his seven page chronology released last week that he suspected he was being "set up" during the email exchanges preceding Christie's disastrous press conference blaming the Obama Administration for the lost funds. But the consultant here may also be a potential scapegoat.

The consultant - Wireless Generation - was not supposed to guarantee success (no reputable company can), or even necessarily have "final say" over content. Its job was to assist. If state education department staffers made a judgment call, it is not the consultant's role -- nor it is the consultant's obligation -- to ignore it and substitute its judgment for that of the client. 

One hopes that this "show investigation" will not result in pre-ordained civil charges against what may be an entirely blameless, innocent consultant.  Watch out for "failure to achieve the desired result" or "failure to protect the government from embarrassment" become dressed up as "negligence" or some "dereliction of duty" or "breach of the duty of care."  These are code words and code phrases, often deployed to denigate an innocent party and divert attention away from the true party at fault.  Even worse, there could be an attempt -- naturally, in the name of deterrence -- to find a way to charge a criminal offense, even if no criminal intent is present. 

The implications of going down this slippery slope are scary.  The failure to give the customer the desired outcome can result in unwarranted criminal investigation, prosecution, conviction and incarceration (and a soiled reputation) of someone whose "offense" may have been simply to take the wrong customer.  (See this report on the erosion of the role of "intent" in the criminal law, and I've previously recommended you buy and read Harvey Silverglate's Three Felonies a Day.)  In such a scenario, engaging in any type of business or commerce could become a "strict liability" trap where any failure to satisfy the customer could start someone on a hellish journey in which jail time becomes a real possibility!  If Congress and state legislatures continue on this trend, America will have an inhospitable climate for any private enterprise. 

The consultant may be a convenient scapegoat so other heads don't roll. But this entire incident may be a cautionary tale for private sector companies doing business with any government: beware the unwritten rule that if something goes wrong, those outside government get blamed first, so the ones inside government can survive.

Eric Dixon is a New York lawyer who consults on investigative matters and helps people with litigation stress management in cases such as government investigations and political scandals.  He is available for comment at 917-696-2442 and edixon@NYBusinessCounsel.com

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