Attorney Misconduct, Crime, Department of Justice, Federal Government, Federal Judges, Jack Abramoff, Legal Ethics, Sentencing Law, Tim Wu, White-Collar Crime

The Kevin Ring Case Is a Scandal and a Disgrace: Five Things I Think You Should Know

A highly subjective look at the case against Jack Abramoff associate Kevin Ring. The writer, a friend of Ring's, argues it was a miscarriage of justice.

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4. The main witness recanted! The government had no witnesses! Aaaaaaaargghh.

For Kevin’s first trial, the government planned on producing three witnesses who would testify that Kevin had sought to corrupt them:

  • John Albaugh (former chief of staff to Ernest Istook (R-OK))
  • Bob Coughlin (an attorney in the DOJ’s Criminal Division)
  • Ann Copland (former aide to Senator Cochran (R- MS))

Coughlin backed out before the trial, asserting Kevin had not corrupted him after all. Albaugh testfied. Copland testified as well, wept copiously on the stand, and said nearly directly that she pleaded guilty because she didn’t have the money to contest the charges at trial. The jury hung evenly and the judge declared a mistrial.

Before the second trial, Albaugh recanted, saying he never understood what “things of value” meant and that he would have taken the same actions regardless of whether Kevin gave him any meals or concert tickets.  Because her testimony had been so damaging to the government’s case, Copland was not called back as a witness in the second trial.  In fact, the government called no public officials as witnesses at all.  As already noted, at the first trial, where the jury got to hear from actual people and make a determination about whether Kevin had corrupted them, they hung evenly. At the second trial, the government called no (zero) witnesses, had former colleagues who pleaded guilty read his sausage-making emails into the record, and basically said, this guy is a lobbyist. Of course he was giving things of value to influence people. Jury convicted on five of eight counts.

Think about it: Ring was charged with being a big bad lobbyist who corrupted Capitol Hill. Yet the government could not find a single government official to testify that they had been corrupted by him. The three public officials who received sweetheart plea deals in exchange for favorable testimony against Kevin — talk about bribes! — all bucked the government against their own interest.

5. The judge knew this was a bad case.

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One thread running throughout the preceding four points is that the trial judge, Ellen Segal Huvelle, was obviously skeptical of the merits of the government’s case (e.g.,“It’s a sad day…”). This gave Kevin’s friends and supporters cause for hope that the trial was going well. And when the jury convicted on five of the eight counts, we hoped that the judge would be as lenient as the power of her position would permit. Alas, no. Our final shred of (delusional?) optimism was this idea that the judge, by her comments, was “signaling” to the appeals court as to the grounds for overturning her own decision. In her sentencing decision, she wrote that she did not agree with the “notion that this was a blatant violation of the public trust by this defendant.” Check out these remarks by the judge at the sentencing hearing (all addressing Edmonds):

“That’s the problem with your position, it’s so nebulous.” and “[W]hen you start pushing people in cases like this to say what you want them to say, especially your agents, and when push comes to shove, and they start evaluating motivation and who knows what they come up with.”

Signals, imaginary or not, were ignored: the appeal was rejected by the D.C. Circuit, in a troubling, perhaps incoherent, decision. Ellen Pognor of White Collar Crime Prof Blog articulates the glaring flaw:

The court states “[t]he distinction between legal lobbying and criminal conduct may be subtle, but, as this case demonstrates, it spells the difference between honest politics and criminal corruption.” This sentence in the opinion concerns me. Should a distinction that results in imprisonment be “subtle”? “Googling” the word “subtle” a definition provided is “[s]o delicate or precise as to be difficult to analyze or describe.” And if this distinction is “subtle,” should the rule of lenity be considered? And should a “subtle” difference be considered to “spell[ ] the difference between honest politics and criminal corruption” or as this case finds – spell the difference between freedom and prison?

Apparently, the answer to that final question is “yes.” And that should frighten all of us.

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For anyone still reading, I’ll give the last word to Tim Wu, commenting on the Aaron Swartz case, but relevant here:

Defenders of the prosecution seem to think that anyone charged with a felony must somehow deserve punishment. That idea can only be sustained without actual exposure to the legal system. Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.

In Round 2 of Ring Trial, Judge Has Harsh Words For DOJ [Main Justice]
Prosecutor Chided in Trail of Abramoff Associate Ring [Main Justice]
Ring Case — Commentary [White Collar Crime Prof Blog]

Earlier: Prosecutors Gone Wild: The Case of Kevin Ring

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