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Friday, January 7, 2011

Federal Prosecutors Move to Save Evidence of Snowstorm Conspiracy

Federal prosecutors may be helping innocent and wrongfully accused city workers establish their innocence and avoid criminal prosecution or other sanctions such as getting fired or suspended.

Federal prosecutors' request that sanitation and other city workers save all their communications (voice mails, e-mails, texts, etc.) about the snowstorm cleanup may help innocent workers exonerate themselves.  This evidence can help innocent people establish alibis, timelines and otherwise indicate that they could not have done certain things as alleged.  Of course, evidence can also be mistakenly analyzed and investigators can jump to conclusions without getting the full picture (or even a fair part of it).  One risk that prosecutors and investigators face -- and which can cause great frustration for innocent parties caught up in an investigation -- is the possibility of the "unknown unknown," the evidence which is missing and which is not even known to be missing. 

The request to save these voice mails and other messages is actually standard and good litigation practice; the government merely wants to make sure people are "on notice" not to destroy or alter evidence.  (The destruction of evidence that might be used in an investigation, if known to be relevant to an investigation, can lead to criminal charges of "obstruction of justice."  This is why subpoenas for evidence are crucial; they give recipients the notice of the investigation.

In other words, fellas, the message is this:  Stop shredding.  

In the universe of facts, you have "known" facts which you have, "unknown" facts which you don't have but know are out there, and "unknown unknown" facts whose existence is unknown to you. In a complex case --and a snowstorm conspiracy case could be potentially huge, involving hundreds of employees (thousands?) -- it is likely there will be unknown unknowns.

Whether the investigation itself is justified or merely an overreaction to political pressure (or driven by career ambitions of prosecutors looking for a "name" or "high-profile" case to use to get a promotion), there are certain common characteristics to many cases (whether civil or criminal).  One is that people who think they will be blamed for something start thinking about who else was involved...or who they can falsely accuse of having been involved. 

(Warning:  False accusations or false reports made to police officers, investigators or prosecutors or other government employees can result in criminal prosecution. Such statements, if made to federal employees, can result in one being prosecuted under Section 1001 of Title 18 of the United States Code.  That is the same section under which Martha Stewart was charged, convicted and sentenced to jail time in a Club Fed somewhere in West Virginia.)

False accusations, circumstantial evidence or even being in the vicinity of an allegedly illegal act (and thus having your name come up in an answer to any question) can result in you entering the sphere of the investigation.  This exposes you to the potential of being called as a witness, or being investigated to see if you have potential civil liability (in which case you get sued) or criminal liability (in which case you can be prosecuted and risk prison time according to the crime for which you are charged). 

City employees who have been contacted by investigators or who reasonably suspect they may be contacted by investigators -- or other employees who had a role in the snowstorm cleanup -- may want to consider consulting with a lawyer.

Eric Dixon is a New York lawyer who helps people handle the stress of being sued or otherwise involved in litigation.  Mr. Dixon comments often on current events and is available for comment at edixon@NYBusinessCounsel.com and 917-696-2442. 

None of the foregoing is legal advice and should not be used as such.   This article is for informational purposes only.    

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