Addendum 2 – Deceiving the Court of Appeals Regarding the Discussion of John Mitchell (July 15, 2009; rev. Mar. 6, 2011) [a2]
I am not sure when I shall address what, in Section D of this document, I describe as a good many misleading or false things Swartz said in the court of appeals in the eleven pages of colloquy on misconduct issues. But a few words are in order on a statement Swartz made elsewhere during the argument. At page 53 of the court of appeals transcript, one finds this colloquy with an unidentified member of the appeals court panel:
QUESTION: Let me ask you about John Mitchell. Did you put evidence before the jury that he was a convicted felon?
MR. SWARTZ: No, Your Honor.
QUESTION: Did you identify him as a former attorney general.
MR. SWARTZ: Your Honor, my recollection is that the court took steps to insure that did not come before the jury throughout. I believe Ms. Dean testified that she saw Mr. Mitchell on television during Watergate and that he first reaction was that, he was guilt [sic].
It is true that there had been a court order or instruction regarding mention of who John Mitchell was. I believe that, as suggested by Swartz, the order or instruction included that Independent Counsel attorneys should not describe Mitchell as a former Attorney General. My recollection, though an uncertain one (and one I do not have the transcripts to verify), is that it was a ruling of Judge Gerhard A. Gesell, issued sometime between the July 7, 1992 issuance of the Superseding Indictment adding the John Mitchell count and the February 11, 1993 transfer of the case to Judge Thomas F. Hogan.
In any case, assuming my recollection is generally correct, as with Judge Gesell’s order on the production of exculpatory materials, Independent Counsel attorneys freely flouted it, and did so within the first half hour of the trial.
Fifteen pages into his opening argument, Robert E. O’Neill stated (Tr. 43):
Another person will be John Mitchell, and your question is, you saw already a question, he’s a former attorney general of the United States.
Thus, contrary to Swartz’s representation to the court of appeals, minutes into the trial O’Neill had told the jury that Mitchell was a former Attorney General. Further, in doing so, O’Neill implied that the jury had likely heard of John Mitchell, thereby at least intimating the connection to Watergate.
Ten pages later O’Neill repeated the point, stating (Tr. 53):
The evidence will show that Louie Nunn at this time went to an individual by the name of John Mitchell. Again, we've spoken about John Mitchell, an ex-attorney general of the United States, a person who the defendant considers to be her father.[[i]]
A moment later, at page 54, O’Neill made the point a third time:
Again, you'll hear the terms "General Mitchell," "Colonel Brennan." "General Mitchell" refers to him having been an ex-attorney general in the United States.
Then, during the Independent Counsel’s case-in-chief, O’Neill would three times introduce the discussion of Mitchell with reference to Mitchell’s having been the attorney general.
At page 657, O’Neill asked government witness Martin Fine: “During his lifetime, Mr. Fine, did you know John Mitchell, the ex-Attorney General of the United States?”
At page 1347, O’Neill asked government witness Louie B. Nunn: “Mr. Nunn, at that time, were you familiar with an individual by the name of John Mitchell, the ex-attorney general of the United States?”
At page 1704, O’Neill asked government witness Philip Winn: “Now, Mr. Winn, during his lifetime, were you familiar with John Mitchell, the ex-Attorney General to the United States?
Further, at page 817, O’Neill conducted this questioning of immunized witness Silvio DeBartolomeis, who may well have been coached as to his response:
Q Now, you mentioned the name John Mitchell on two occasions. Who was John Mitchell?
A John Mitchell was the former U.S. Attorney General under President Nixon.[ii]
In closing argument, in discussing Arama developer Aristides Martinez’s retaining of Nunn and Mitchell to secure funding for the Arama project, O’Neill would remind the jury once more that Mitchell was a former attorney general (Tr. 3384):
Obviously, he's paid $425,000 to hire somebody with influence, somebody with connections in Washington, somebody who knows the right people, an ex-governor and an ex-attorney general of the United States, and they know the defendant, Deborah Gore Dean.[[iii]]
One must consider the possibility that Swartz, though almost certainly in court during the opening and closing arguments, and frequently in court during the trial, simply was unaware that O’Neill had mentioned, or made a special point of the fact, that Mitchell was a former Attorney General. Regardless of whether it is impossible that Swartz was unaware of what O’Neill had done, it is substantially more likely that Swartz (and Independent Counsel Arlin M. Adams, who sat with him at counsel table for the court of appeals argument and whose presence there Swartz mentioned (Tr. 20) to enhance his credibility with the appeals court[iv]) were involved, along with O’Neill, in a deliberate decision to emphasize, notwithstanding any court instruction to the contrary, the fact that Mitchell was a former attorney general with the expectation that doing so would remind the jury of Mitchell’s involvement in the Watergate scandal.
In any case, in light of Swartz’s conduct throughout the case, including the remainder of the court of appeals argument, such reason as exists to believe that Swartz was not being deliberately deceptive in the above-quoted response lies not in any unlikelihood that Swartz would deliberately misrepresent the facts to the court of appeals if he thought it useful to do so. Rather, it would lie in a concern by Swartz that a deception so manifestly contrary to the record would be discovered. But in the many efforts of Swartz and other Independent Counsel attorneys to lead the jury and the courts to believe things those attorneys knew to be false, they were nothing if not bold.
[i] For purposes of accuracy, I note that this quote is based on previously copied material from page 53 (which page I misplaced at some point between 1993 and 2005). Thus I have to consider whether O’Neill might have said “stepfather” rather than “father.” On all other occasions where O’Neill made the point in the opening argument (at 49 and 57) he used the word “father.” So I assume that “father” is correct.
While not germane to the instant point, I add here that material immediately following the quotation above reads:
Nunn asks Mitchell to help him out to try to get the units, and what does Mitchell do? Mitchell goes to the defendant. Now John Mitchell died in 1988, so you might say, "Well, how are you going to prove that he went to the defendant?" We're going to prove it through documents, the documents in black and white are going to show that Mr. Mitchell spoke with the defendant about Arama and that she agreed to send 300 units to units to Arama.
When O’Neill made this statement, precisely because he had it in black and white, O’Neill knew with 100% certainty that what Mitchell did was not go to the defendant, but go to Executive Assistant Lance Wilson. O’Neill also knew with close to 100% certainty that when Mitchell did this, Wilson agreed to cause Maurice Barksdale to send 300 units to Dade County for the Arama project and that at no timewas Dean involved in causing Barksdale to send those units. Section B.3 of PMP.
[ii] The statement of Dean to which Swartz alluded occurred (Tr. 2591) after there had already been numerous references to the fact that Mitchell had been an Attorney General making at least some if not all jurors aware of the John Mitchell being discussed was the person involved in the Watergate scandal.
[iii] Again, while it is not precisely germane to the instant point, it nevertheless warrants note that when making this argument, O’Neill knew with absolute certainty that it was not because Nunn and Mitchell knew Dean that Martinez sought their assistance, but because Nunn and Mitchell knew Lance Wilson. See Section B.3 of PMP.
[iv] See the February 22, 2011Truth in Justice item styled Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams” regarding the way Adams’ prestige may have influenced key decisions on misconduct issues by District Judge Thomas F. Hogan. Though not discussed there, I note that an ironic aspect of the matter is that the more heinous the conduct in which a person of Adams’ prestige is involved, the less inclined a deferential court will be to cause the matter to come fully to light.