Cardiac Arrest, Part II: An Interview with the Authors

In my last column, I glowingly reviewed Cardiac Arrest: Five Heart-Stopping Years on the Feds’ Hit-List (affiliate link). I truly cannot recommend the book highly enough for anyone who’s interested in learning — in both a detailed and dishy way — how federal prosecutors sometimes abuse the tremendous power they’re given. It would make a great summer read — it’s funny, fast-paced, and suspenseful. The Audible version is also terrific; that’s how I “read” the book.

As I mentioned last time, I think the book is so important that I’m devoting three columns to it. This week, it’s an interview with Howard Root, the man on the aforementioned Hit-List, and his co-author Stephen Saltarelli, a member of his legal team who left right after the trial ended to become a screenwriter. Next time, we’ll hear from his legal team.

So now, without further ado, here is my interview with Mr. Root.

What do you think should happen to the prosecutors in your case?  Did you consider filing complaints with the bar or with Justice Department’s Office of Professional Responsibility?

In my opinion, supported by all of the detail included in the book, all four of the prosecutors and the FDA investigator should be fired for the tactics they employed in prosecuting this case. Then, a complete written summary of their misconduct should be made public and communicated to every prosecutor in every U.S. Attorney’s Office in the country.

This may seem like an overreaction, but keep in mind what I describe in my book: this prosecution team read grand jury transcripts of witnesses to other witnesses, threatened the careers and even the children of my employees in order to try to change the employees’ truthful testimony, and advanced legal theories they knew were false based on the testimony of their own witnesses and the prosecutors’ own notes.

For Department of Justice attorneys to use these tactics is obscene, and the only way to stop it from occurring again is to punish the perpetrators and make their punishment known throughout DOJ. Right after the verdict, we filed a request with DOJ to investigate the prosecutors’ misconduct, but that request was dismissed in a one-page response relying only on the judge’s refusal to dismiss the indictment before the trial. It completely ignored the additional evidence of misconduct that came out during the trial. That made absolutely no sense to me.

What changes do you think the Justice Department should make to keep something like this from happening again?

It all starts with training and supervision, which I found to be wholly inadequate at DOJ. The result is unsupervised prosecutors engaging in misconduct without fear of retribution. Not only doesn’t DOJ stop these actions, the department encourages the overzealous prosecution of corporations and officers under the Yates Memo.

It wasn’t always this way. In 1940, Attorney General Robert H. Jackson gave a speech to the assembled group of U.S. Attorneys, saying, “Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.”

Compare that to today, when DOJ publicly boasts of its success in obtaining indictments and even calculates its ROI in prosecuting corporations. What used to be ridiculed as a moral defect is now the directed culture of the DOJ. That culture and hubris needs to be eliminated and replaced with humility and justice. It really shouldn’t be that hard to say that justice is the singular guiding principle of the Department of Justice.

It seems clear that you thought it was important to name names in the book — to talk in detail about the prosecutors, your own lawyers, and even the judges. Can you talk about why you did that? 

I thought the only way to establish credibility with readers was to give specifics. Most readers haven’t been exposed to the criminal justice system and therefore have to suspend their disbelief to accept that federal prosecutors engage in the conduct described in the book. The only way I know to get that suspension of disbelief to happen is to name the prosecutors by name. Plus, the story would be boring if it was filled with generalities, and on top of that, in order to help future defendants navigate this criminal defense process, I needed to explain the pitfalls with the process and the players, including even me, the defendant.

What lessons do you think white collar lawyers could learn from the book? 

I’ve seen more companies destroyed by their own lawyers than by the other side’s lawyers.  While I usually say that in regard to civil litigation, I think it’s also true in corporate white collar defense cases. Prosecutors create a process that virtually every corporate defendant finds nearly impossible to navigate. So the white collar lawyer’s first job is to get their client to continue to exist between the first subpoena and the trial date. Lawyers generally are horrible at budgeting and managing a legal process consistent with business objectives, which created big problems in our case and is something in the book that other lawyers can learn from.

How did this process change how you view white collar practice or the practice of law as a whole?

Before this case I thought white collar criminal defense was something only the dirty companies needed and I’d never use. Now I think every corporation needs to have a white collar defense team pre-selected and on speed dial for an immediate response to a criminal subpoena they could receive at any time. In these cases, it is essential to hire the right lawyer with talent and experience that fits the investigation and your business — simply plugging in a recommended lawyer from the long-time outside counsel is a mistake. So now I view the practice of law even more as a specialty a la carte business, which business clients need to review, qualify and select.

In December, you sold your company for $1 billion and decided to step away from the medical-device world. Have you given any thought to how you might help other innocent people who are targeted by the government but don’t have the money to defend themselves?

Yes I have, and I’m trying to help in three ways. First, I’ve started supporting the Legal Rights Center here in Minnesota in order to help indigent defendants get the representation they need. Second, defendants have reached out to me and asked for advice on their cases and I’ve tried to give them some perspective and support to make it through a punishing legal process. And third and most important, I’m starting to work with organizations and firms in D.C. to get the new administration to rebalance the Yates Memo and independently investigate prosecutorial misconduct.

What’s next for you?

I enjoying speaking about my case and my cause (and book) to groups ranging from the local Rotary to the Federalist Society. I particularly like getting to tell my story with other exonerated defendants like FedEx. Beyond that, I’m starting to advocate for changes in our criminal justice system and I’m starting to get involved politically here in Minnesota. I’m not ruling out working in a business sometime in the future, but that’s likely not going to happen soon, and it won’t be as a CEO of a public company.

Question for Stephen Saltarelli:

Why did you decide to leave the law and become a screenwriter right after the trial? What else have you been working on?

While I was an associate, I was coming home every night and writing. A little here, a little there. A couple months before trial, I re-wrote a script that got the attention of one of my all-time favorite actors. So that gave me the idea that I could maybe “make it,” and my bragging about that gave Howard the idea that I could help him write a book. So it was good timing, and definitely an honor to help Howard share his story, which is frightening and riveting and in parts so odd.

---

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is [email protected].