Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"
Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"
I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.
"Draft" Transcripts? Or the Better Originals?
For my first post on this blog, I thought I’d share an idea that comes out of an experience from a trial I did about 10 years ago. A Central District of California AUSA very reasonably provided me with an interpreter’s "draft" transcripts of undercover recordings of meetings between my client and an undercover agent. Those of you who practice in the Central District may recall that the United States Attorney’s office has a policy that it will provide these "draft" transcripts only if defense counsel – as the proposed stipulation in one of my recent cases was worded – "agree not to use such draft transcripts for any purpose in any official proceeding in this case, including but not limited to cross-examining any witness at trial, presenting the drafts as transcripts whose accuracy was offered [sic] by the government, and/or using the draft transcripts at sentencing." The AUSA who provided the transcripts in my case was apparently unaware of this policy and didn’t seek such a stipulation. I was then able to use the "draft" transcripts to cross-examine the interpreter at trial, which became rather interesting when the "final" transcripts got worse (as they often seem to) and it was revealed that many of the adverse changes were made by the interpreter in response to suggestions by government agents – agents from the very same government agency that provided her translation agency with significant business. A transcript of the cross examination showing how the "draft" transcripts were used to challenge the "final" transcripts is linked here.
This turned out to be a one-time opportunity, however, because AUSA’s in my subsequent cases weren’t unaware of the office policy like the AUSA in this earlier case had been. These later AUSA’s sought to – ahh, what verb to use, maybe "extort"? – the standard stipulation from me and told me I’d have to choose. Either I wouldn’t get the "draft" transcripts at all or I’d get them but have to restrain myself when the translator made them worse in response to the suggestions by the agents from the same government agency that paid her.
This didn’t sit well with me. First, I thought the jury ought to know things like why changes were made. Second, what changes were made and why they were made actually did seem to be relevant. Third, doing the cross examination had been fun.
So I did what all good public defenders and defense lawyers do when the government says, "You can’t have that!" I said, "Says who?" Then – because this is the next thing good public defenders and defense attorneys do after saying, "Says who?" – I went out to look for who, if anyone, said anything one way or the other about this.
And what I found was very interesting. First, it was interesting that there wasn’t very much to find; in particular, there were no court of appeals cases on the question at all. Second, in the cases I did find, there was some support for my position that the defense is entitled to so-called "draft" transcripts. I found there were district court cases written by two different district judges in Illinois, one of whom agreed with my position that the defense is entitled to "draft" transcripts without any stipulation and the other of whom disagreed. The judge who supported us reasoned that the transcripts were written statements discoverable under former Rule 16(a)(1)(A) (now Rule 16(a)(1)(B)) of the Federal Rules of Criminal Procedure. The judge who went against us didn’t say, at least expressly, that she disagreed with this, but reasoned that the transcripts weren’t relevant because of the general rule that it’s the tapes that are the actual evidence and the transcripts are just to help the jury in listening to the tapes.
So what does a good public defender or defense lawyer do next? File a motion, of course. The most recent version of the motion I’ve filed on this question is linked here. It’s far too long to reproduce in a blog post, but you’ll see the key cases are
United States v. Finley, No. 87 CR 364-3, 4 & 6, 1987 WL 17165 (N.D. Ill. Sept. 3, 1987) and
United States v. Shields, 767 F. Supp. 163 (N.D. Ill. 1991) – which are both written by the judge who agrees with the defense position – and
United States v. Bailey, 689 F. Supp. 1463, 1469-70 (N.D. Ill. 1987) – which goes against the defense position. Even
Bailey isn’t that bad, though, because its rationale was that it’s not the transcripts of the tapes, but the tapes themselves – which in that case were in English – which are the evidence and the transcripts are only aids to the jury’s understanding. This rationale doesn’t extend to foreign language recordings because the general rule that the tapes are the evidence and the transcripts are only aids to the jury's understanding doesn’t apply to foreign language recordings; rather, it’s the transcripts that are the admissible evidence where the tapes are in a foreign language.
See, e.g., United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir. 1993).
So where does this leave us? It seems like there’s a good, solid argument – supported by at least some authority – that we’re entitled to the "draft" transcripts without a stipulation. And maybe a better word than "draft" is "original." Let’s tell the judges that we want the "original" transcripts, whatever the government may want to call them, not the government’s "new and improved" version. Especially if that "new and improved" version got improved by the government agents as much as the translator.
Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.