“It’s a front-burner issue on any day of the week but not on this day… And that’s a real problem,” says firm Partner Reuben Guttman of the Biden administration’s current handle on the nations uncontrolled drug overdose rates. Read the full article, from NPR and WAMU 88.5, here: https://wamu.org/story/21/01/29/with-biden-team-focused-on-other-crises-experts-say-drug-epidemic-is-exploding/
A new downloadable resource available from NITA, Remote Advocacy: A Guide to Survive and Thrive is a modern attorney’s crash course in adapting to the challenges of practicing law in the era of COVID-19. Written by leading scholars and acclaimed lawyers with over a century of combined experience, this thirteen essay series provides comprehensive instruction on topics including video-conferencing etiquette, ethics and discovery, exhibits in remote trials, conducting interviews and relationship-building with clients, and hearings from a judges’ perspective. Every chapter is packed with practical advice so you’ll find this guide invaluable even if sections are read independently. To learn more, click here.
By Alan Ellis |law360.com | February 2, 2020
In 1983, I asked the incoming president of the National Association of Criminal Defense Lawyers, the late Robert W. Richie of Knoxville, Tennessee, if I might chair a new committee that I was discussing with past president Gerald Goldstein, then of San Antonio, Texas, and now of Aspen, Colorado. Its task would be to represent and counsel criminal defense lawyers who were imperiled with risk of contempt, disqualification, subpoena or bar grievance arising out of their vigorous and ethical defense of their clients. It was to be called the NACDL Lawyers Assistance Strike Force.
The first client of the Strike Force was Nancy Gertner, then a prominent lawyer in Boston. Gertner and her co-counsel had been subpoenaed on the eve of trial in the U.S. District Court for the District of New Hampshire to turn over fee records from certain clients in order to show that if clients could afford top-notch lawyers, they couldn’t possibly be menial workers. (Gertner’s client was a parking attendant but had the funds to retain her.)
I flew to New Hampshire and testified on behalf of the NACDL Strike Force, which resulted in the judge’s quashing the subpoenas:
The use of the phrase chilling affect upon the role of an attorney engaged in criminal defense work by being served a subpoena in circumstances such as this is mild. To permit it would have an arctic effect with the non-salutary purpose of freezing criminal defense attorneys into inanimate ice floes, bereft of the succor of constitutional safeguards.
The monetary problems such as attorneys hiring attorneys (as we have in this case) can be better spent on pertinent matters (a lawyer’s time is his stock-in-trade). Also to be considered is the ever increasing specter of malpractice suits, the possible vindictiveness of prosecution counsel towards a successful, recalcitrant, obnoxious or obfuscating adversary, the jeopardizing of the attorney-client relationship, real or imaginary, the reluctance of capable attorneys to continue or to consider a full or partial career in the practice of criminal law and the further depletion in the paucity of capable trial lawyers because of a concatenation of events leading to abuse of process.
The district court quashed the subpoenas, emphasizing the negative effect that it believed the subpoenas would have on the attorneys’ ability to defend their clients in the pending state criminal action. The court expressed concern that forced disclosure would jeopardize the attorney-client relationship at a crucial point in the defense preparation. The could also found that “[t]he actions of the U.S. Attorney are without doubt harassing” and noted that enforcement of the subpoenas in this context would deter attorneys from following a career in criminal law because of the personal and professional traumas resulting from the United States attorney’s investigatory tactics.
The government appealed, but the U.S. Court of Appeals for the First Circuit affirmed the decision.
Gertner subsequently was nominated by President Bill Clinton to the U.S. District Court for the District of Massachusetts. Her nomination was strongly supported by the late Sen. Edward Kennedy, D-Mass. She served until 2011, during which time she issued numerous opinions on sentencing issues and was widely published in the area. She currently is a senior lecturer on law at Harvard Law School, where she teaches forensic science and sentencing. She is also writing a book titled “Incomplete Sentences: Gangs, Guidelines and Judges,” which is expected to be published by Beacon Press this year.
In the first of a few interviews with Judge Gertner, which took place between August and November of last year, I began by asking her why she resigned from the bench. She gave me several reasons, most of which boiled down to her frustration with the U.S. Sentencing Commission’s refusal to take any of her opinions into consideration when reworking the federal sentencing guidelines. She thought she could better contribute to ending mass incarceration by teaching law students, lawyers and federal judges at the Federal Judicial Center on sentencing. She has spoken at several NACDL continuing legal education programs, including the recent white collar program in Washington, D.C., in October 2019.
Following one of her presentations at an NACDL CLE program soon after she took the bench, I asked her what a lawyer can do when he has a serious drug client with a lengthy criminal record who was dealing significant amounts to inner city youths. “Tell me a story,” was her response. “Every client has a story.”
Many of the 30 judges whom I’ve interviewed for my Law360 series “Views From the Bench on Sentencing Representation” thought there isn’t much a lawyer can do at the sentencing hearing.  The judges came out on the bench with a tentative sentence already in mind. If they “moved the needle,” it was usually based on the defendant’s allocution. Judge Gertner told me she thought differently:
Whenever you have an opportunity to speak, take advantage of it. Make the sentencing hearing a public ceremony. Bring in family, friends, and supportive victims and law enforcement to the hearing. Sympathetic media also. Allocution can be very important if not written by the lawyer. On the other hand, defense counsel has to be very careful about prepping his or her client for allocution and, at a minimum, hearing what he’s going to say. Allocution can be dangerous unless the defendant is prepped.
She agreed with me that an offender’s stepping up to the plate and owning their mistake and demonstrating sincere remorse was very important. Any effort made toward restitution was one example of demonstrative remorse and carried a lot of weight with her.
Asked how she viewed mental health and substance abuse issues, Judge Gertner said that an individual who sought treatment — particularly before he or she knew he or she was under investigation — often made a positive impression on her. Mental health evaluations could be especially important when they showed what the defendant had done to make up for his or her offense. If an offender ceased criminal conduct before realizing he or she was under investigation, this also could have a huge impact on Judge Gertner’s thinking in regard to sentencing.
She entertained and welcomed reasonable sentencing recommendations by defense counsel, particularly from a lawyer who had credibility with her. Since the prosecutors generally recommended guidelines sentences, their recommendations counted for less.
When I asked her to address the government’s argument that a significant sentence should be imposed as general deterrence to others, she answered that many defendants, particularly drug offenders and gang members, know they are going to go to prison if caught. Having a felony record for others, especially white collar offenders, can be as worrisome to them as a long prison sentence.
Having taught and written on neuroscience and the law, Judge Gertner values the opinions of mental health professionals, particularly the clinicians who have treated the defendant. She agreed with me that it is a good idea to summarize the experts’ report in your sentencing memorandum and then make the experts available to the judge for questions during the sentencing hearing.
Judge Gertner also considered community service performed prior to sentencing, giving special weight to such activity if it was tailored to the crime — for example, older gang members working to dissuade younger ones from criminal activities.
Judge Gertner said she typically began focusing on the sentence she might impose as soon as she received the presentence report and sentencing memoranda of the parties, generally a week in advance of the sentencing. “Presentence memoranda were very important to me if they presented the full picture of the client, warts and all,” she explained. But 18 U.S.C. §3553 is an empty vessel to her. “It’s a nothing burger. It needs to be filled in in the sentencing memorandum.”
Character letters can be important unless they appear to have been written by the lawyer. “You should quote from the better ones in your sentencing memorandum and attach them as an exhibit. Attach others that are good that you are not quoting as a separate exhibit.”
If there were significant guidelines issues to be decided, she appreciated counsel who gave her as much time as possible to research these and other issues raised by the parties. She considered a latefiled sentencing memorandum if something came up at the last minute, although often these are submitted by bad lawyers. Sentencing videos were “ok” if not too slick.
Early and frequent contact with the probation officer can lead to a positive presentence report, Judge Gertner noted:
The PSR needs to be a megaphone for the offender. The lawyer should find out as much as possible from the probation officer assigned to the case including whether the probation officer talks to the judge prior to sentencing. … Find out if the judge meets with the probation officer and/or follows their recommendations. Learn how the judge feels about the U.S. Probation Officer or the office in general.
In the end, as with most of the judges whom I’ve interviewed, the “why” question was critically important for Judge Gertner: “Why did your client do what he or she did? I wanted to know what is going on here.”
Indeed, this was one of the reasons Judge Gertner was so vocal an outspoken critic of the guidelines:
They didn’t take into account why an offender did what he did. For example, why was a drug dealer selling his drugs? Was he doing it to support his addiction? Was he doing it to buy school supplies? Was he doing it because he was living on the street and supporting his younger siblings? The guy who is essentially living high on the hog from drug trafficking is a different offender than the guy who is selling cocaine for school supplies. Also, if this guy had an opportunity to make a living wage, perhaps he wouldn’t have had to sell drugs if this guy had neurological damage. If this is your argument, you needed to give me evidence of these mitigating factors. You couldn’t just argue it.
I asked her another “why” question: How can defense counsel can endeavor to show a judge why the defendant is unlikely to reoffender. “I found it very helpful when lawyers gave me a plan for their client’s rehabilitation. It can be even better if the defendant has embarked on rehabilitation prior to sentencing.”
The ultraconservative Charles Koch Institute, on the criminal justice reform section of its website, states that, “Jail should be reserved for people who pose a threat to public safety.” In other words, we should be sending people to prison who we are afraid of, not that we are just pissed at.
Judge Gertner agreed and suggested that’s a good point to make to a sentencing judge.
For most judges, the key questions they want answered are:
- Why did your client do what he did?
- What has he done to own his mistake and demonstrate sincere remorse?
- Why was the behavior out of character with an otherwise law-abiding life if it was?
- Why is he unlikely to do it again?
- Why should I cut him a break?
For Judge Gertner, it appeared that the key questions she wanted answered were: Why did your client do what he did, and why is he unlikely to do it again?
© 2020, Portfolio Media, Inc.
Original article available at law360.com .
Reprinted with permission.
 In re Grand Jury Matters , 593 F.Supp. 105 (D.NH. 1984).
 In Re Grand Jury , 751 F.2d 13 (1st Cir. 1984).
 See also, “What Federal Judges Want to Know at Sentencing,” The Federal Lawyer (September 2017) https://alanellis.com/views-bench-mistake-demonstrate-sincere-remorse/ and “Own the Mistake and Demonstrate Sincere Remorse,” The Federal Lawyer (September/October 2019) https://alanellis.com/news/blog/sentencing-tips/.
Alan Ellis, a past president of the National Association of Criminal Defense Lawyers and Fulbright Award winner, is a criminal defense lawyer with offices in San Francisco and New York. He is the co-author of “Federal Prison Guidebook: Sentencing and Post Conviction Remedies.”
I practice law. My clients have been called sneaks and snitches. I just call them “whistleblowers.” If they sue a culprit who has defrauded the government under the False Claims Act against, I might also call them “relators.”
I try to explain to people that the term whistleblower is quintessentially American. It is about challenging accepted but fundamentally wrong practices; indeed, ones carried out by established or respected people or institutions, including corporations and government. And though the term “whistleblower” was coined around the activities of Ralph Nader in the 1960s and 1970s, whistleblowers have been around since the birth of our nation. One need only consider challenges to British Rule and claims of taxation without representation to understand the importance of whistleblowing in our founding.
We talk about the “progressive tradition,” but isn’t that tradition about second-guessing rules that are just not right – rules like slavery, “separate but equal,” and a way of life that denied, and continues to deny, equal rights for women and minorities? And aren’t the folks who stick their necks out to make these challenges just good old American whistleblowers? No doubt though, until their complaint is vetted and their cause pressed to completion, they will be called snitches, even if, at the end of the day, their epitaphs herald them as heroes.
This week we learned that we have whistleblowers in the White House, some of whom cooperated with reporter Bob Woodward, and one of whom penned an Op Ed for the New York Times. True to form, feathers have been ruffled in some circles and our President has called the work of the Op Ed author “TREASON?” Some of these outcries were predicable; yet the cries for help from these particular “whistleblowers” were a bit surprising.
While we have laws that protect whistleblowers and legal channels for them to air their grievances, every now and then these channels are simply not viable; or perhaps, those who might be in a position to hear a complaint won’t listen or are not inclined to take action. Specifically, Congress has seemingly failed to conduct aggressive oversight on issues ranging from the competence of the President to the administration’s foreign policy initiatives.
Maybe this is what the whistleblowers in the White House understand; it is probably why they took their concerns to the only viable outlet: the American Press. After all, was the Republican legislature going to take up their cause?
And like the wide receiver always in the clear to take a pass, the Free Press – another quintessentially American phenomenon – exists as the outlet for whistleblower when all else fails. No doubt, choosing that route comes with fewer statutory protections, but to be clear, whistleblowers working with the press have driven change for the better.
I am a bit curious about these White House whistleblowers —particularly, the individual whose words appeared in the New York Times. I wonder about the phrase in the Op Ed hinting at the virtues of an agenda that specifically favors deregulation and perhaps even the appointment of judges deferential to the well-heeled and less receptive to those without a voice; maybe even judges who are less open to receiving a complaint challenging the status quo from say, for example, a whistleblower?
I wonder whether these whistleblowers in the White House have truly learned about what it feels to be the little guy taking on the system, always in search of a more powerful partner who will make the grievance heard. And also, I wonder when they leave the White House and go back to Corporate America whether they will be the ones calling my clients snitches.
 Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, and is a Senior Fellow and Adjunct Professor at Emory Law School. He is a Board Member of the American Constitution Society.
 See 31 U.S.C. §§ 3729-3731 (2018). Specifically, 31 U.S.C. § 3730(b) provides for “actions by private citizens” in the name of the government. Private citizens who bring these actions are known as “relators” and the caption on the complaint is styled, for example, United States ex rel Smith v. Jones Corp. The provisions of the False Claims Act that allow for private rights of action are known as the “Qui Tam” provisions. See, e.g.,31 U.S.C. § 3730(c).
 See William Safire, On Language; Blowing my Whistle, N.Y. Times Magazine (1983), https://www.nytimes.com/1983/02/06/magazine/on-language-blowing-my-whistle.html.
 See, e.g., I am Part of the Resistance Inside the Trump Administration, N.Y. Times (Sept. 5, 2018), https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html; Renae Reints, Bob Woodward’s Latest Book Reveals New Levels of Chaos in Donald Trump’s White House, Fortune(Sept. 4, 2018), http://fortune.com/2018/09/04/woodward-book-donald-trump/.
 See Donald J. Trump (@realDonaldJTrump), Twitter (Sept. 5, 2018, 3:15 P.M.), https://twitter.com/realdonaldtrump/status/1037464177269514240?lang=en (responding to the anonymous op ed in the New York Times).
 See infra, note 8. Historic examples of when government insiders have used the press because no viable internal recourse existed include Mark Felt’s (“Deep Throat”) cooperation with Bob Woodward and Carl Bernstein of the Washington Postand Daniel Ellsberg’s leaking of the Pentagon Papers. See The Most Dangerous Man in America, PBS, http://www.pbs.org/pov/mostdangerousman/timeline/ (last visited Sept. 13, 2018); The Watergate Story, Wash. Post, http://www.washingtonpost.com/wp-srv/politics/special/watergate/part1.html (last visited Sept. 13, 2018).
 See Kris Kolesnik, GOP Destroyed Oversight – Dems Obligated to Clean up Mess if Elected, The Hill (Sept. 11, 2018, 11:30 A.M.), http://thehill.com/opinion/campaign/405931-gop-destroyed-oversight-dems-obligated-to-clean-up-mess-if-elected.
 For example, any one of a number of Congressional oversight committees – if inclined – has the ability to subpoena documents and call witnesses. See generally Todd Garvey, Cong. Research Serv., Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017), https://fas.org/sgp/crs/misc/RL34097.pdf. In combination with the press, these committees have immense power of persuasion. One can only harken back to the Watergate Committees to appreciate this point. See Tevi Troy, Congressional Hearings Aren’t What They Used to Be. Here’s How to Make Them Better, Wash. Post (Oct. 21, 2015), https://www.washingtonpost.com/posteverything/wp/2015/10/21/congressional-hearings-arent-what-they-used-to-be-heres-how-to-make-them-better/?noredirect=on&utm_term=.73a4fff44fae.
 The Occupational Safety and Health Administration allows for redress regarding retaliation provisions written into at least twenty separate federal statutes. See Occupational Safety and Health Admin., U.S. Dep’t of Labor, OSHA Fact Sheet (2013), https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf. But the protection is for individuals who engage in protected conduct. Reporting wrongdoing to a federal agency is clearly protected conduct. What is less clear is when an individual neglects to report an issue directly to an agency and goes to the press. For example, one need only study the matter of the Pentagon Papers where Daniel Ellsberg was charged under the Espionage Act for his leaking of documents to the Washington Postand the New York Times; the charges were later dismissed because of prosecutorial misconduct. See Judge William Byrne; Ended Trial over Pentagon Papers, Wash. Post (Jan. 15, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/01/14/AR2006011401165.html. Despite the legal perils of Mr. Ellsberg, we look back over four decades on his efforts and view his conduct as having a positive impact on the process of evaluating US involvement in the Vietnam War.
Yesterday, the 3rd Circuit issued an opinion regarding direct and independent knowledge requirement of the original source exception to the public disclosure bar. It found that, among other things, “knowledge of a scheme is not direct when it is gained by reviewing files and discussing the documents therein with individuals who actually participated in the memorialized events.”
The relator, Karl Schumann, was the VP of contracting for Medco. He alleged that Bristol-Myers Squibb (BMS) paid Medco sham data fees and rebates relating to the drug Coumadin, and that the BMS failed to include those amounts when calculating the price thereby inaccurately reporting an incorrect best price to the government. He made the same allegations regarding AstraZeneca and its Prilosec and Nexium drugs. The trial court dismissed the case on public disclosure grounds as he was not an original source. In the lower court, he argued that “he had learned of BMS’s conduct by reviewing existing agreements and internal documents in Medco files, discussing them with Medco colleagues, negotiating rebate and data fee agreements with BMS, and comparing the terms of those agreements with others he had seen in his years in the pharmacy-benefits industry.”
Upon appeal, the third circuit addressed the standard for having direct and independent knowledge under the FCA. Citing and quoting from prior cases it said that:
- Direct and independent are separate requirements that have to be met;
- “Direct knowledge” is “knowledge obtained without any intervening agency, instrumentality, or influence: immediate” and is “first-hand, seen with the relator’s own eyes, unmediated by anything but [the relator’s] own labor, and by the relator’s own efforts, and not by the labors of others, and . . . not derivative of the information of others.” (Slip opinion at 16, citations omitted); and
- Independent knowledge means that “knowledge of the fraud cannot be merely dependent on a public disclosure”, it means the relator “must possess substantive information about the particular fraud, rather than merely background information which enables a putative relator to understand the significance of a publicly disclosed transaction or allegation.” (Slip opinion at 16-17, citations omitted).
In applying the law to the case before it, the Court agreed with the lower court that Relator’s knowledge was not direct and independent. The key section states:
First, knowledge of a scheme is not direct when it is gained by reviewing files and discussing the documents therein with individuals who actually participated in the memorialized events. See Paranich, 396 F.3d at 335-36; Stinson, 944 F.2d at 1160-61. Second, Schumann’s description of his involvement in Medco’s business with BMS, including negotiating rebate and data fee agreements and recognizing that BMS was aware of its best-price reporting obligations, does not evince direct and independent knowledge of any improper kickback or inaccurate best-price report. See Paranich, 396 F.3d at 336 & n.11 (noting such knowledge gained when relator’s involvement constituted filing false claims on defendant’s behalf); Houck on behalf of the United States v. Folding Admin. Comm., 881 F.2d 494, 505 (7th Cir. 1989) (finding relator’s knowledge direct when he was involved by helping others file false claims); see also In re Pharmacy Benefit Mgrs. Antitrust Litig., 582 F.3d at 434 (explaining PBMs negotiate discounts and rebates from drug makers). Finally, Schumann’s conclusions that BMS intended to pay kickbacks to Medco and to submit false claims to the government, based on his experience in and understanding of the PBM industry, do not qualify as independent knowledge under the FCA.
Here is a copy of the opinion: Schumann v BMS.