Everybody Get Up! Why Prosecutors Hate Blurred Lines And Why That Matters

If he were less handsome and less talented, Robin Thicke might have enjoyed being a prosecutor.

As anyone with a passing knowledge of pop music is aware, Thicke’s famously creepy song “Blurred Lines” was the song of the summer back in 2013. (As much as I love “Get Lucky,” it just didn’t have the same cultural cachet. Sorry, Daft Punk.) Some people felt the song was rapey, while other people disagreed and just thought it was a great, fun song. (I fell into the latter camp.)

But whatever you think of the song, one thing is clear: Robin Thicke hates blurred lines.

I’ve been thinking about the song lately and the context of how many prosecutors and federal agents approach investigations — how they tend to see only well-defined, straight lines because that’s what they want to see. (Sometimes, the only time a prosecutor sees a blurred line is when someone accuses him of a Brady violation.)

Let me give an example. Most white-collar investigations involve tons of documents, including emails that can often go back several years. As any busy person with an email account knows, it is usually ridiculous to ask someone if they remember receiving a specific email say, six years ago on a particular day. Most regular people don’t specifically remember sending or receiving an email until you show them the email — and even then, they may not remember it.

But as I have seen time and time again in my practice, the government often refuses to believe that when it comes to criminal investigations. I can’t tell you how many times I have sat at a conference-room table, mouth agape, as I listen to a prosecutor or an agent accuse a witness of lying when he genuinely claims that he has absolutely no memory of receiving an email from John Smith on some random date seven years ago.

These emails usually don’t say things like, “Yes, please send the $100,000 assassination fee to the following bank account in Switzerland,” “How many times did you want me to shred those documents again?” or “You know, I think what we’re doing is probably illegal.” They’re usually about someone’s day-to-day work — the kind of unremarkable email that you forget you sent an hour after sending it.

But prosecutors often seem to believe that a witness should know the record as well as they do — that the witness should have been marinating in all of these emails, meticulously reconstructing them and patching them together to fit a certain view of the case, just as obsessively as they have for the past several months, or even years.

To a prosecutor, this is evidence. To a witness, it’s just… a bunch of old emails.

The government often finds it impossible to believe that busy people can forget things, or that sometimes people don’t even open email attachments. “But you received it! Are you denying that you received it? Do you really expect us to believe that you don’t read your emails and that you didn’t open this attachment?”

I think this comes from the role that the prosecutors play. The role of a prosecutor is to impose order where there often is none — to draw a straight line from A to B to C to conviction. The defense attorney, by contrast, traffics in the messy. Sometimes, people send emails without thinking about them, or they don’t remember emails that they received, or they pretend to know things they don’t actually know just to get something off their desk. But the government doesn’t believe that. In the typical prosecutor’s view of human behavior, we are all rational actors, we all read our emails, and we all remember every single email that we have ever sent or received.

Is this ridiculous? Of course it is. But prosecutors do it time and time again. I have literally seen prosecutors accuse a witness of lying about the subject matter of an email that was sent or received eight years before the questioning occurs — and without even showing the witness the email first.

Why does this matter? I think for two reasons.

First, if the government thinks you’re lying, no matter how ridiculous the basis for that belief may be, they can charge you with making false statements or obstructing justice. And even if they don’t charge you, they can pound the table and threaten to do that. I have seen it happen. And for most normal people, it is terrifying — even if the government never follows through with the threat.

Second, trying too hard to smooth out blurred lines can look an awful lot like witness tampering. If someone really doesn’t remember sending an email, or says that they remember a certain conversation differently from another witness, pressuring them to “fix” that answer starts to, well, blur ethical lines fairly quickly. Sometimes people really do forget things. Sometimes people really do remember conversations differently.

The inclination to smooth out is a particular risk when the government works with cooperators. Usually, the first person through the door is going to minimize his own culpability and maximize the other guy’s. Given that people usually believe the first narrative that they hear — especially when believing it will benefit them, here by making their case easier — it can be tempting to want other witnesses to conform their stories to the cooperator’s.

A prosecutor who does that might not even realize that he’s doing something wrong. Rather, he’s just bought into the first narrative and wants everything to be line up — to be neat.

But a good prosecutor, rather than striving too much for neatness, will figure out how to deal with these kinds of discrepancies honestly. If that makes the case a little messier, then it makes the case a little messier. Life is messy; why shouldn’t cases be, too?

---

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].