11a. Complaint to the District of Columbia Office of Bar Counsel [b11a]
Note: This material below has not been materially changed since some time in 2009. Thus, it refers to my complaint to the District of Columbia Office of Bar Counsel, while, out of deference to Bar confidentiality rules, not mentioning that when I filed my complaint Bar Counsel itself had already initiated an investigation of Independent Counsel conduct in the Dean case. Following Robert O’Neill’s falsely stating in his Florida Federal Judicial Nominating Commission application for the US Attorney position that the DC Bar Counsel investigation had been initiated by Dean, and the subsequent nomination of O’Neill for the US Attorney position, I eventually revealed that Bar Counsel had initiated the investigation itself (as discussed in Appendix 7 to the Robert E. O’ Neill profile and the July 11, 2010 editorial on truthinjustice.org). The O’Neill nomination also led to my encouraging the Senate Judiciary Committee to secure the Bar Counsel record to determine whether in the investigation O’Neill sought to deceive Bar Counsel in the same way that Bruce C. Swartz and others had sought to deceive the court. See July 16, 2010 Letter to members of the Senate Judiciary Committee (at 5-7).
In late 1995, I filed a formal complaint with the Office of Bar Counsel of the District of Columbia Court of Appeals against certain Independent Counsel attorneys involved in the Dean prosecution, including Robert E. O’Neill, Bruce C. Swartz, and Paula A. Sweeney. The complaint included the various allegations I made in materials provided to the Department of Justice on December 1, 1994.
Whether or not the subjects of such a complaint are representatives of the government, they are obligated to tell the truth in representations they make in a Bar Counsel proceeding. Materials made available on this page will show that Independent Counsel attorneys’ responses in the courts to Dean’s allegations of misconduct were almost always misleading, and that in cases where the responses included express or implied representations, such representations were almost always false. A Bar Counsel proceeding would put Independent Counsel attorneys in a position where they could either again make misleading arguments and false representations or make straightforward arguments and true representations, but it would do so in circumstances where the issues should be somewhat different. That is, an ethical proceeding is, or should be, more concerned with the true intent of the attorneys whose conduct is called into question than in whether the actions of those attorneys affected the outcome of the trial.
It also warrants note that the allegations I brought to the attention of Bar Counsel raised many issue that had not been raised in Dean’s Rule 33 Motion or in the courts and pointed out many things not noted in the court proceedings. Some of these matters included efforts of Independent Counsel attorneys to deceive the court in responding to Dean’s Rule 33 Motion. For example, as discussed in the Park Towers appendix and the profile on Bruce C. Swartz, in oral argument on February 14, 1994, Deputy Independent Counsel Bruce C. Swartz defended the effort to lead the jury to believe that a reference in a document to “the contact at HUD” concerning the Park Towers project was a reference to Dean, even though an immunized witness had stated otherwise, on the grounds that there were no documents showing the contacts with the other person and that Dean had been responsible for a post-allocation waiver on the project. In fact, documents of which Swartz could not possibly have been unaware – and which should have been part of a Brady disclosure to the defense – did show contacts with the other person and also showed that the other person, not Dean, had been responsible for the waiver.
Unfortunately, at the time I filed the Bar Counsel complaint I had not yet come fully to realize that Agent Cain had testified that he did not remember the April 1989 call from the defendant Deborah Gore Dean, even though he did remember the call, based on a rationale that his testimony was nevertheless literally true (see Section B.1). So, while I raised the issue of the use of Agent Cain’s testimony, I was not in a position to force a response to the issues concerning whether Agent Cain had been coached to give an answer that may have been deemed literally true or the implications of the subsequent efforts to mislead the courts on the matter. Nevertheless, the matter of Agent Cain’s testimony provides one useful means of adding context to the situation in which my complaint placed Independent Counsel attorneys O’Neill, Swartz, and Sweeney. For they could tell Bar Counsel the truth about the circumstances in which they secured Cain’s testimony. Or, as Independent Counsel attorneys including Swartz (though not including O’Neill and Sweeney) had done in responding to Dean’s motion in court, and as Arlin M. Adams had done in the letter to the probation officer, they could attempt to deceive Bar Counsel in the matter. If they were to do the latter, and I am correct that the earlier actions to conceal the circumstances of Agent Cain’s testimony constituted a conspiracy to obstruct justice, the effort to deceive Bar Counsel would be an additional act in furtherance of that conspiracy. And if O’Neill and Sweeney were to be involved in such effort to deceive Bar Counsel, they, too, would now be parties to the conspiracy regardless of whether they previously had been.
The rules of the District of Columbia Court of Appeals require that Bar Counsel proceedings be kept confidential (though, I am confident, such rules neither intend to nor could deny me the right to state publicly that I filed a complaint or describe the nature of the complaint). None of the named attorneys responded to my requests (made subsequent to the initial posting of these materials) for their permission to make the proceedings public.
I will eventually seek to secure the permission of the Office of Bar Counsel to publicly disclose all materials filed in connection with my complaint or any other complaints of prosecutorial misconduct in the Dean case on the grounds that important public interests will be served by such disclosure. In doing so, I will also assert that in the event that Independent Counsel attorneys sought to mislead Bar Counsel as to the nature of their actions in responding to my complaint, they remain subject to sanction regardless of how long in the past those efforts to mislead Bar Counsel occurred.
For the present, however, I have posted Part I of my complaint (mainly for its bearing on issues discussed in the profile on Jo Ann Harris). The document is redacted to exclude any information other than that indicating that I made various arguments to the Bar Counsel in support of my allegations that Independent Counsel attorneys engaged in unethical conduct.
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