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Friday, October 8, 2010
Please Don't Coach The Witness
An interesting development this morning in the Anthony Suarez corruption trial in Newark federal court. (This is one of a series of corruption cases, part of the "Bid Rig" corruption investigations, starring felon-turned-government-witness Solomon Dwek. After Dwek's testimony earlier this week that he committed "more than" 500 crimes and may have committed more than 1,000 crimes, perhaps his new code name will be the "Man of A Thousand Crimes.")
There are text messages for which the contents of said messages were apparently erased from an FBI server. This leads to the possibility, one among many possibilities, to be fair, that a conscious decision was made to erase the texts because they contained exculpatory statements (so-called Brady evidence) that would help the defense establish the "reasonable doubt" which if found by jurors is supposed to lead to an acquittal.
It now appears that various FBI agents were going to give contradictory testimony. One agent, now stationed in Afghanistan, testified via phone that the texts were erased because witness Dwek recorded the meetings. (This raises a different question: who made the bright decision to entrust the credibility and sanctity of important evidence to a repeat felon?) Suarez's lead defense counsel followed a federal prosecutor outside and witnessed the prosecutor informing another FBI witness and agent about one fact to which the first FBI agent-witness had testified on the phone. The defense counsel, Michael Critchley, appropriately objected to what amounts to witness coaching, which is impermissible and, in this corner's opinion, not far from the crime of suborning perjury.
Whether this amounts to government misconduct, or just sloppiness, incompetence or arrogance, remains to be seen. However, it is disappointing to see that when someone's freedom -- never mind his reputation -- are at stake, our government seems awfully cavalier about the collateral damage caused by its mistakes or misconduct.
Eric Dixon is the president of Eric Dixon LLC, headquartered in
. Mr. Dixon has been a New York City lawyer since graduating in 1994 from New York . Mr. Dixon handles litigation counseling and litigation stress management for those who are the subject of lawsuits, have been threatened or expect to be sued or investigated. Mr. Dixon has extensive knowledge of corporate governance, the federal securities laws (including the many anti-fraud provisions and related issues) and election law, and significant experience in representing businesses and their owners and managers in litigation, government investigations, settlement negotiations, complex due diligence investigations and business formations. Mr. Dixon has also represented over two dozen political campaign committees and candidates for public office, including presidential and gubernatorial campaigns, on ballot access issues. Mr. Dixon may be reached for a confidential consultation and case assessment at 917-696-2442 or via e-mail at edixon@NYBusinessCounsel.com. Yale Law School