Tagged: Shut Up
It's my best piece of advice — and the advice most consistently ignored. If you're dealing with the government, and you are in any doubt, why won't you just shut up?
Yesterday at Ars Technica, Nate Anderson had a great piece about the FBI's capture of a couple of meatheads who were extorting a professional poker player with nude pictures hacked from his email account. Some people may walk away with the lesson, "you're a fool to keep your naked pictures online." Some may walk away with a Coen Brothers type of lesson that some criminals are stupid and doomed to failure. I walk away with the same lesson as always: shut your damnfool mouth and stop trying to convince law enforcement of anything.
Nate's article tells about two defendants — Keith Hudson and Tyler Schrier. The FBI confronted them both in a manner well-calculated to scare the living shit out of them, rousting Hudson at gunpoint at his home and yanking Schrier out of his dorm room in his underwear. Most people have a hard time thinking straight under those circumstances. They forget things, they misread signals, they judge poorly, and they let their desperation to control the situation overcome whatever minimal good sense they have. The only good approach is to shut up. Hudson and Schrier didn't. They both talked, and both started with a series of stupid and easily countered lies, before blundering around towards the truth.
"The FBI does not fly us out here and we don't break into your door to talk to you if we don't have a substantial amount of evidence against you," said one of the FBI agents to Hudson. Actually, the FBI goes off on a wild tear based on lousy evidence all the time. But this much is true: when the FBI shows up to interrogate you, there is an excellent chance they already know the answers to their questions (or think they do) and already have evidence lined up to back their beliefs. When you run your fool mouth, you are probably doing one of three things: (1) incriminating yourself by admitting to parts of their case, (2) telling stupid and easily disproved lies, which make you look guilty, thus making you easier to convict, and (3) telling stupid and easily disproved lies that the government will use to pile additional charges onto you.
Indeed, in this case, when the feds indicted Hudson and Schrier, they added a charge under 18 U.S.C. section 1001 against Schrier for lying to the FBI during his interrogation. They did that even though the FBI agents knew it was a lie at the time and had the evidence they needed to disprove it and it didn't slow or deter the investigation by a hair. Now, that extra charge probably didn't have much impact on Schrier's sentence — it's really chickenshit rubble-bouncing — but it's an additional federal felony that makes his case more complicated, needlessly.
Some people are sociopaths and would try to fast-talk God Almighty. Some people talk compulsively under any pressure. And some people have somehow picked up a foolish notion that if they don't talk, if they don't cooperate, if they don't show the cops that they're good citizens, they'll be hustled off to a cell even if they've done nothing, or that they will lose a chance to divert the cops from the something they have done. Here's the truth: maybe, possibly, there could be a scenario where your long-term interests will be hurt if you refuse to talk to law enforcement. Maybe, possibly, in some extremely unlikely scenario, you could do actual harm to your fortunes by asking to talk to a lawyer before you talk to the cops. But those remote and hypothetical scenarios are vastly outweighed by the strong likelihood that you will make your situation much worse by talking. The "I better talk to the cops right now or things might get worse" approach is like deciding to jump off a bridge because you might get struck by lightening if you keep standing on it.
Shut up. For the love of all that is holy just shut up.
There's a reason for this. The reason lies at the heart of law enforcement methodology in general and federal law enforcement abuse of Title 18, United States Code, Section 1001 in particular.
Imagine this scenario, based on an actual situation:
A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."
"Oh coitus," says you, or words to that effect, and terminate the conversation.
Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"
"No," you say.
At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"
The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."
See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.
Here's how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government's position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.
Hence, the government's chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they've got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.
You think this is an improbable scenario? You think I'm talking about rare and extreme cases to color the entirety of federal law enforcement? To the contrary, as a federal defense attorney, I'm encountering this more and more often. Not to sound like an old fart, but we never indulged in such bullshit when I was a federal prosecutor (cue the scoffing from many defense attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard about it from colleagues across the country. It's now routine for federal agents to close out an investigation with a false-statement-trap interview of a target in an effort to add a Section 1001 cherry to the top of the cake.
The lesson — other than that criminal justice often has little to do with actual justice — is this: for God's sake shut up. Law enforcement agents seeking to interview you are not your friends. You cannot count on "just clearing this one thing up." Demand to talk to a lawyer before talking to the cops. Every time.
Just before leaving the office last night I got a call from Greg, of Greg's Quality Plumbing. Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners. Unfortunately one of Greg's employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company. The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days. BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back. From Greg's Quality Plumbing.
And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight. As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water. He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg's business assets. All while trying to set me straight.
In the end, Greg did not set me straight. What he accomplished was to give me information I will use against him at his deposition and at trial. He kneecapped the defense attorney his insurance company will retain, an attorney who won't even hear about the dispute between BigState and Greg's Quality Plumbing for several months. I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him. All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get "the letter".
- When you get a letter from a lawyer, read it. Read it immediately. Read it more than once. Then take a short break, and read it again. When Greg called me, he told me he "wanted to find out what all of this was about." If Greg had bothered to read my letter, which detailed exactly what we think the problem was, what we want from Greg, and how to give us what we want, he wouldn't have needed to call me. And he wouldn't have answered a bunch of my questions as I pretended to search my files and databases to get to the bottom of the problem in BigState v. Greg's Quality Plumbing.
- Don't be an ostrich. Don't ignore the problem: It won't go away. I've spent most of my career defending clients for insurance companies, so I've ceased being amazed at how people hide their heads in the sand when they get bad news. But they do. They even get a "letter", by certified mail, that says CIVIL SUMMONS with another "letter" titled COMPLAINT attached, and file it away, meaning to get around to responding to it. They violate rule #1, failing to read the Summons which clearly states that they have 30 days to respond, in writing filed with the clerk of court, or something bad will happen to them. After you've read the letter, you need to frame a response. And that response should not come from you.
- Don't be an internet hero. You read a lot of things on the internet: you read about the day-to-day life of lesbians in Syria. You read about cute women who are just dying to meet lonely men in New York. And you read stories about laypeople who've beaten lawyers at their own game, with nothing but their wits and the righteousness of their cause. Those sure are nice stories, but are they true? All I can judge from is my own experience: I've never "lost" a case, for the plaintiff or the defendant, in which I faced a layperson on the other side. ("Losing" is a relative term: every time I litigate against laypeople, I feel like a loser because it's like beating up a twelve year old.) I've beaten a neurosurgeon who could have afforded counsel but didn't feel the need because it was a small case, he was right, and doggone it he was smart. I've beaten a hyperlitigious crank who's filed so many pro se lawsuits she's been featured in the Wall Street Journal and Forbes. And I've beaten everyone in between. Because while I'm not all that smart, I'm old. And I've been doing this for a long time. You haven't. Which leads to:
- Shut up. Wise advice, that applies to civil matters as much as criminal cases. Don't call the lawyer who sent you "the letter" to "set him straight". You won't solve the problem on the phone. But you might hang yourself.
- Get help. Obviously the person or company on the other side thought the dispute between you was important enough to retain counsel. That's a hint. If you have a business, you probably know a lawyer. Even if you don't, your customers and friends do. Ask around, discreetly (i.e. not blabbing all over town that you're getting sued), for the name of a good lawyer or two. And call the lawyer. Today. If the lawyer doesn't call you back with reasonable promptness (meaning if you call me at 11pm on a Saturday, don't expect a return call before midnight), call another.
- Get professional help. Bob who pleads out speeding tickets for $250 a pop at the courthouse may be a good negotiator, but he's probably not the best choice to address your bank's demand for you to cover that Nigerian "certified check" that turned out to be fraudulent. The best source of legal referrals is other lawyers. By all means ask the lawyer whether the problem facing you is in one that's in his field. You'd be happy to have an ophthalmogist stop to help you as you lie bleeding on the side of the road, but once you get to the emergency room you'd want a trauma surgeon. If as Robert Heinlein said, specialization is for insects, that explains why lawyers give many people the creeps.
- Don't be penny-wise but pound-foolish. If you're getting a letter from an attorney because you owe sixty dollars at the video store, just pay the bill. If you're getting a million dollar demand because old Ms. Shuffler broke her neck when she slipped in the banana aisle of your store, get out your checkbook. You're going to need a quality defense. Which leads to:
- Are you in good hands? Any claim that could conceivably be covered by your business's insurance policy (you are insured, right?) should be reported to your insurance company. In writing. Immediately. If you don't report a problem to your insurance company because you don't want your rates to increase or you're afraid they'll cancel your policy (as clients have told me when I was asked to get their default judgments set aside), YOU'RE DOING IT WRONG! What do you think you're writing the premium check every month for? If a loss is even arguably covered, your insurer will take over negotiation of the claim, speak for you through an adjuster who's not terrified of lawyers, and hire a lawyer to defend you at its own expense. Don't be Greg of Greg's Quality Plumbing, who should have turned this over to his insurer (in fact that's what I told him to do) and then could have rested easy.
- Keep your files. It should go without saying, but when you get a notice from an attorney, or for that matter the government, the first thing you should do is not to throw away all records relating to whatever the problem is. Covering up may turn a humdrum civil case into a criminal case. Instead, turn the file over to your lawyer. Let him worry about what to do with it. And lastly,
- Don't get depressed. And don't panic. The sonofabitch who sent you that obnoxious letter may not love you, but plenty of other people do.
Lawyers should feel free to criticize or supplement this list in comments. Our lay readers are encouraged to tell us stories of how they fought City Hall and The Man on their own, and won.
It's a dark and gloomy six in the morning. You've just gotten out of bed. You are fuzzy-headed, bleary-eyed, badly in need of coffee. You haven't showered or dressed. You're in your underwear, or pajamas.
Suddenly there's a thunderous pounding on the door, and loud men are shouting something at you. Your heart lurches and the adrenaline jolts you. You open the door, and there is a team of FBI agents, guns prominently displayed in holsters, raid jackets open. They are large and aggressive and unfriendly. They tell you they have a search warrant for your home and push past you. Two of them grab you, bodily turn you around, and handcuff you. They'll say later they had to do that to secure the scene and assure agent safety, and that you totally weren't in custody or anything.
Two agents take you outside to your driveway in your pajamas or underwear. At this point your neighbors are beginning to peek curiously out of their windows. The agents push you into the back seat of a G-ride — a late-model American made sedan that smells of air freshener and despair. The two agents sit on either side of you in the back seat; a third agent climbs into the front seat. You shift uncomfortably, trying to avoid sitting on your handcuffed hands. But there's no way to get comfortable sitting in your underwear in the back of a G-ride with your hands cuffed behind you.
The agents begin to question you about your business dealings. They don't read you your rights first — they'll say later they didn't have to, because you totally weren't in custody, despite being handcuffed in the back of a G-ride in your underwear surrounded by FBI agents in raid jackets. The agents tag-team you, switch topics rapidly, play good-cop-bad-cop, and use every law enforcement rhetorical trick to intimidate you. We have some really serious questions here, they say. But if you just cooperate, maybe we can clear all of this up.
They start to ask questions about a meeting that took place two years ago. Were you at that meeting with Mr. Smith and Mr. Jones? You say no, no I wasn't. Maybe you say it without thinking, agitated and confused and muddle-headed from the circumstances. Maybe you don't have a clear memory of what happened two years ago. Maybe you panic and lie. The agents move on in their questioning.
After a few uncomfortable hours, the agents uncuff you, pull you out of the car, and hand you an incomplete, inaccurate, and illegible receipt purporting to state what they've taken. They haul off boxes of documents, disks, disk drives, and whatever else catches their fancy. They'll see you soon, they say.
And, relatively speaking, they do. Six months later you are indicted. You're indicted not only for whatever matter the FBI was investigating. As a kicker, you're also indicted under 18 U.S.C. section 1001 for lying to the FBI. That's a felony. Your lawyer reviews the discovery, and tells you that when the FBI agents asked you whether you were at that meeting two years ago with Mr. Smith and Mr. Jones, they already knew the answer to the question. Mr. Jones recorded the meeting and is cooperating with the FBI, and they had two other witnesses who placed you there. There was no chance whatsoever that your denial — whether it was a panic-induced brain fart, or a failure of memory, or a lie — could have misled or deterred the FBI in its investigation for even a moment. But that doesn't matter. Though materiality is an element of Section 1001, it's a weak, diluted type of materiality. Statements to the government are deemed material if they are the sort of statements that have the capacity to influence it. Courts have come very close to creating a presumption of materiality by reasoning that if the information were not material the government would not have asked for it and you wouldn't have offered it. There was a time when most prosecutors thought it was chickenshit to charge someone with a felony for an exculpatory denial of wrongdoing that never fooled anyone; that time is in the past.
So. By failing to shut the fuck up, you have just handed the feds a gimme felony charge that will make your case much more difficult to defend.
When the authorities ask you questions, they are not out to "clear this thing up so we can let you go." They are not your friends. They do not want to help. They are very likely not trying to learn anything or discover anything. They are trying to make, or improve, a case against you. They are hoping that you will fall into their trap. They may be trying to make a weak case strong or turn a lesser charge into a greater one.
Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Don't be a fool. If there's a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after you've consulted a lawyer who understands the situation. When you answer law enforcements' questions — especially when you do it in a stressful situation like a search — you take grave risks of substantially worsening your situation. You may say, "oh, but I won't lie." Sure. But can you be sure, sitting cuffed in your underwear at six in the morning in that G-ride, that you will remember events from years ago accurately? Are you sure you won't be confused and muddled under the circumstances? Are you sure that the government won't — fueled by claims by cooperators — believe that you've lied? Do you really think that if you misremember or mix up events in your head or if your memory is different than the story of a cooperator, that the government is going to give you the benefit of the doubt?
Don't be a fool. Invoke. For God's sake, just shut up.
I frequently advise clients who are the subjects of criminal investigations. They expect to be the subjects of search warrants or arrest warrants at any time.
I give them all four key pieces of advice:
1. Shut up.
2. No, really. SHUT UP.
3. Because police may come to your house any day to arrest you or search your house, this would be a good time to send any dogs to a kennel or a friend or neighbor's house.
4. Gather all communications with me and with any other lawyer and put them in one big physical or electronic folder. Now label that folder "ATTORNEY CLIENT COMMUNICATIONS PRIVATE AND CONFIDENTIAL PRIVILEGED COMMUNICATIONS." And put that inside ANOTHER container labeled the same way.
The first three are fairly self-explanatory.
You might think that the fourth is calculated to prevent police and prosecutors from invading the attorney-client privilege by reading my communications with my client. You'd be wrong. Nothing will prevent them from doing that if they feel like it. The labels are calculated to (1) deter those principled cops and prosecutors who see them, and (2) make it marginally more likely that I can get some sort of remedy when dishonest cops and prosecutors look at the labels, shrug, and read the communications anyway.
The ugly truth is that, in my experience, cops and prosecutors routinely, deliberately, and without any apparent regret invade the attorney-client privilege and read communications that are obviously between attorney and client. My clients describe sitting in handcuffs during a search while cops pick up my letters on my letterhead and casually page through them, smirking at the client. And I will not soon forget the Deputy District Attorney who soberly informed me that the attorney-client privilege had been "burst, as a matter of law" when the police seized his papers. (Later, after losing a motion regarding the privilege against self-incrimination, this DA said that "he would have to read up on this Fifth Amendment thing." Yes, of course he's a judge now.)
Why do they do it? Because they can. Because judges are indifferent or hostile to defendant rights or mere chickenshits who rarely recognize prosecutorial or police misconduct and even more rarely impose any sort of sanction when they do recognize it. Prosecutorial misconduct happens all the time with little consequence for the government.
So, naturally, it's thrilling when judges actually impose consequences.
Today A Public Defender is over the moon over a great state Supreme Court ruling. Patrick Lenarz was a karate instructor acquitted of eight counts of molestation and convicted of one. In addition to appealing on the basis that the trial court refused to let him call an expert on how bad interrogation taints the testimony of child witnesses, Lenarz complained that the trial court acknowledged that prosecutor Christopher Parakilas wrongfully read his attorney-client communications, but refused to do anything about it. In a stunner, one day after oral argument, the justices ordered Lenarz released immediately. That bodes well for Lenarz and poorly for Parakilas.
A Public Defender is right to be jazzed over this. But it's the exception that proves the rule, I'm afraid.
Patrick already noted that the Blagojevich prosecution suffered an embarrassing reversal today. His take is entirely sensible. I write further only to point out what the verdict — a mistrial on 23 counts, and a guilty verdict on one count of lying to the FBI — says about criminal defense and dealing with the government.
The jury found Blagojevich guilty on Count 24 of the indictment. That count charged him with violating 18 U.S.C. section 1001 by falsely stating to the FBI, during his interviews in the course of the investigation, that he kept a "firewall" between his political activities and his official government activities, and that he did not keep track of who donated to him.
Those assertions were, of course, bullshit. More to the point, they were utterly obvious bullshit. There is no chance whatsoever that Blagojevich's patently ludicrous and self-serving boasts about his rectitude could have delayed or deterred the FBI for a nanosecond. Regrettably, when it comes to Section 1001, that's not the point. The question, in determining whether a lie to a government investigator violated section 1001 is not whether it actually obstructed or influenced the investigation, but whether it was possible that a statement of that kind would influence the investigation. That's such a loose and easy standard that almost any statement related to the subject matter of an investigation will satisfy the element.
Hence federal investigators frequently use 1001 to strengthen otherwise weak cases. They carefully build their proof about all the issues in the case, convince some credulous target and his foolhardy lawyer to talk, and then hope that the target will lie about some detail — or at least make some claim that a jury will believe is untrue. As I've mentioned before, the feds can even use this trick to convert a misdemeanor investigation into a felony investigation, and can certainly transform a losing case into a conviction. Just ask Martha Stewart (who was never indicted on the issues for which she was investigated). Or Rod Blagojevich, who now stands convicted for stupid lies that the FBI didn't believe for a hot second.
People talk to the FBI because they hope that they will be able to convince the FBI that they've done nothing wrong. Lawyers let their clients talk to the FBI because their clients (who are terrified of being charged) want to do so, and the lawyer does not want the client to freak out and blame the lawyer if he takes the Fifth and get charged. But the FBI is not interviewing you to help you. The FBI is not interviewing you with anything approaching an open mind about whether you have committed a crime. The FBI is hoping that you will say something that will help them prove up their case, and that if you don't, you will at least tell some marginal lie that they can charge you for. Just ask the Zasi family. The FBI interview is merely a out-of-court version of a perjury trap.
Some lawyers will argue that they have to walk their client in despite all this, because being charged would be a career death penalty, and they have nothing to lose. But clients will grasp the concept of "nothing to lose" quite differently when they're looking at an actual criminal conviction. Suddenly, the prospect of being disgraced and fired or impeached, but not convicted, will not sound nearly as bad as it did compared to a felony conviction and a stretch in federal prison. Besides, to be indelicate, anyone who occupies so high a position that they have "nothing to lose" in this sense is very likely to be a narcissistic freak. Narcissistic freaks are notoriously unreliable clients and make awful, awful interview subjects. Anyone who listens to Martha Stewart or Rod Blagojevich for thirty seconds will realize that they are highly likely to shit the bed in some spectacular way or other during an interview with the government. Like the scorpion of the fable, it is their nature. Walking them anyway suggests high idiocy or low client control.
Remember Rule One: just shut up.
This week I watched, with some amusement, as an associate navigated an encounter with the media. No clients were harmed, but she emerged indignant.
Some criminal defense attorneys believe that media relations is essential to an effective defense. I'm a skeptic. I think that very, very few clients are helped by engagement with the media. I think that in most cases, the putative benefits or media engagement (getting your message out, or driving the narrative) are substantially outweighed by the risks. Those risks include (1) increasing negative attention to your client, (2) accidentally saying something stupid or harmful to your client, and (3) being misquoted, or quoted out of context, by journalists with a tenuous grasp of law who don't care about due process and favor drama over precision.
Eric Lipman at Legal Blog Watch offers a prime example of why I feel this way. When his client Marc Payen was accused of immigration fraud in connection with allegedly taking money based on false promises to file requests for asylum, attorney D. Andrew Marshall tried, and failed miserably, to engage the press to make things better:
"This is a nonviolent felony offense. If certain services were supposedly rendered that were not rendered, then the individuals who paid for the services may very well be entitled to their money back. Whether a crime was committed is another story," said Payen's attorney D. Andrew Marshall.
Perhaps D. Andrew Marshall was disastrously misquoted, which is why he emerges sounding incoherent. That's completely foreseeable in dealing with the press. Or maybe he really just did say something that sounds, depending on how you read it, like he's suggesting his client committed a felony.
Rule One applies to lawyers as well as clients: the best course is to shut up.
Over at Not a Potted Plant, the Transplanted Lawyer (in the course of explaining a decision by Justice Scalia the principled basis of which requires resort to a proctologist with a flashlight) is kind enough to give us a shoutout for what he aptly calls our Rule #1: Just Shut Up.
Well, technically, that was my Rule #1, inspired by my criminal practice. But I suspect that Patrick would agree it's usually applicable to civil practice as well. The bottom line: when folks on the other side of the v. want you to run your mouth, it's almost never in your best interests. Rather, it's almost always in their best interest.
I'm in Miami this week for the American Bar Association's annual White Collar Crime Conference. At one of the many alcohol-drenched social events at which the defense lawyers mingle, I had occasion to discuss recent trends in the consequences of clients failing to shut the fuck up. I've talked before about a chickenshit tactic the feds have increasingly been using in the last decade — interrogating suspects, and then charging them with false statements to the government in violation of 18 U.S.C. section 1001 if they deny their guilt. This week some colleagues pointed out a fun variation on this practice. This colleagues practice maritime law, which often involves getting rolled out of bed at three in the morning because your client's vessel has been detained by the Coast Guard for discharging oil or dumping garbage or some other environmental regulatory violation. Very often, federal investigators pursuing maritime incidents don't have a wide variety of charges available to them — in fact, often the only possible charges are misdemeanors.
But 18 U.S.C. section 1001 is a felony. You see where this is going, right?
So increasingly the feds approach maritime incidents by aggressive questioning of everyone involved — often including crew members who may speak little English, may be unsophisticated, and may come from countries where you lie to the police to avoid being shot in the head. The feds go into those interviews with a specific belief about what happened in the incident, and if they get a statement in variance with that belief, they use it to bootstrap a misdemeanor violation of maritime regulations into a felony false statement to the government. In some circumstances they can even bootstrap it into felony charges against the company, or against supervisory personnel, on the theory that the false statements are part of a deliberate cover-up of the incident.
How to respond to this? Well, do I need to read Rule One to you again? Shut up, for God's sake. Now, I'm aware this fights with every instinct as a suspect — and often instincts as a lawyer. As a suspect you're conditioned by popular culture to believe that you need to cooperate and talk your way out of the situation or you'll be arrested. As a lawyer, we're conditioned to believe that the worst possible thing to happen is for your client to be arrested because you didn't somehow finesse the situation. Fight those instincts. Shut up. The people wanting to question you — or your client — do not care about your best interests. They care about charging someone. It might as well be you.
Folks who have read this blog for a while know that my favorite default advice to clients is to just shut up. See, for instance, here and here and here for non-criminal examples, and here and here and here and here and most especially here for criminal examples.
Wow. When I link them all, I come off looking kind of crazy. But I'm like Cassandra, except I'm not a Greek chick, and I'm doomed to walk the earth telling people to shut up without them listening to me instead of telling the truth and having them not listen to me.
Today's case in point: Najibullah Zazi and his dad, Mohammed Wali Zazi. The Zazis (Zazii?) are at the center of a frightened shitstorm over threatened terrorist attacks on U.S. soil. You've probably seen someone on the news trying to make you wet yourself about it.
There are so many directions I could go with the story of the Valley Swim Club, a Philadelphia private club that admitted, then expelled, a group of local black kids from its pool. I could use it to talk about lingering racism in America. I could use it to talk about proof versus belief, and explore whether the evidence supports the proposition that the expulsion was based on race. I could use it to discuss the legal question of whether the club is sufficiently private to escape the reach of nondiscrimination laws, or the philosophical libertarian question of whether society should regulate club membership at all.
Instead, I'm going to use it to talk about crisis management.
I split my practice between criminal defense and civil litigation. Both practices — which are frequently intertwined — involve institutions suddenly finding themselves in crisis. The government has issued a grand jury subpoena for our records! Our CFO was just indicted! Someone just filed a lawsuit accusing us of fraud! We've gotten two calls from reporters asking for comment! Oh, God, they say they have a 4:00 p.m. deadline and need a response right now, or they'll write that we refused to comment!
I've found that the dangers presented by these crises — which arise from the human frailty of the participants — are remarkably similar to the dangers presented when a client gets arrested. Most people, when arrested, find themselves in the grip of an extraordinary compulsion to try to talk their way out of it, to deny or excuse or justify or minimize their conduct, to establish a human connection with the cops arresting them. In this process they blurt out all sorts of harmful nonsense — easily disproved lies that will be used to show their consciousness of guilt, equivocations and half-truths that will bite them later, dangerous admissions. Hence my consistent advice to clients (and anyone who will listen) approached by the cops — for the love of God, will you just shut up, already. You're not helping yourself by talking, and the cops are not there to help you.
My advice to clients and companies in crisis is the same — especially in the opening hours or days of the crisis. The pressure to say something, to try to staunch the public relations wound, to get their side of the story out during the same news cycle, is almost irresistible. They fear that if they don't return the call from that reporter, they'll get the dreaded "Company X refused to comment" in the paper the next day. They fear that if they don't return the call from the investigator instantly, they'll be locked in as a suspect in the government's mind. Every fiber of their being screams for immediate action.
But that's precisely the time — under enormous pressure, with nerves all jingle-jangle, and before time for reflection and investigation — where the very worst decisions are made. Hence, at the Valley Swim Club, you get a statement like this:
"There was concern that a lot of kids would change the complexion … and the atmosphere of the club," John Duesler, President of The Valley Swim Club said in a statement.
See, there's an archetypal rush-to-put-out-a-statement statement. Duesler didn't think it through, or he would have recognized what it sounded like. He didn't vet it with anyone — or if he did, they were also in the grasp of panic. He didn't take time to conduct a thorough investigation of the situation. He didn't consult with professional and detached advisers. Rather, he let the news cycle control him, and rushed out a statement. The result, predictably, was catastrophic — his use of the "complexion" and "atmosphere" code-words became the story and drove the story, and cast crippling doubt on the club's later explanations for its conduct. Those explanations were themselves questionable — how can a club not realize in advance that adding 60 kids at once to the pool with overcrowd it? — but were rendered futile by what sounded remarkably like an admission of racism.
It didn't have to happen that way. The statement "We have not had time to review and investigate the allegations, and will respond promptly when we have done so" works perfectly well. If you can't manage that, just don't return the calls. You might think that the line "Company X did not return calls for comment" looks bad in a news story the next day. But as Duesler illustrates, many of the things that will fall out of your mouth in crisis mode will sound vastly worse, and will poison everything you might want to say later after investigating, reflecting, and getting good advice. "Company X refused to comment," to the extent it is harmful, will be forgotten almost immediately. A panicked statement — or panicked action — will hang around your neck forever. And bear this in mind — if the story is going to stay in the news for multiple news cycles, you'll have other chances to comment. If, on the other hand, it's going to disappear after one news cycle, then you'll be in the clear unless you make it worse.
Slow down. Hold all calls. Call your lawyer, or your public relations company, or your priest. If necessary, go home and sleep on it. But don't say a damn thing just because the reporters or investigators are at your door screaming for you to say something. Don't say anything until you can get together in a room, write all the pros and cons of a statement on a whiteboard, and talk them out. Don't say anything until somebody who is not hyperventilating has read through your proposed statement line by line and asked, skeptically, how it helps or hurts. The reporters and investigators are not your friends. They are not demanding an immediate statement to help you. They want you to panic and blurt something newsworthy or incriminating.
Just. Shut. Up.
South Carolina Gov. Mark Sanford, still clinging to office after admitting to an extramarital affair, wrote in an opinion piece released Sunday that God will change him so he can emerge from the scandal a more humble and effective leader.
"(W)hile none of us has the chance to attend our own funeral, in many ways I feel like I was at my own in the past weeks, and surprisingly I am thankful for the perspective it has afforded," Sanford wrote in the opinion piece widely published online Sunday by South Carolina newspapers.
I'm fine with Sanford thinking he needs to get right with God. I just wonder why, at this stage, with his family's wounds so raw, he feels the pressing need to share about it at every turn through mass media. (It's an ongoing habit discussed this top-notch Jon Stewart clip, which includes the deathless line "That's Episcopalian for shut the fuck up.")
Sanford's behavior reminds me of a line from a play, Shaw's Man and Superman (which I saw in England in the early 80s with Peter O'Toole, drunk off of his ass, effortlessly nailing the lead role):
My dear Tavy, your pious English habit of regarding the world as a moral gymnasium built expressly to strengthen your character in, occasionally leads you to think about your own confounded principles when you should be thinking about other people's necessities.
Mark Sanford, think of your family, and shut up.
You know, I thought that my simple advice about just shutting up for a while when accused of misconduct was easy to follow. And it's free! But it's too rarely followed.
Part of the problem is that people think — incorrectly — that if they don't admit to misconduct, they can just kind of hem and haw and mumble about the subject without getting in trouble. Generally, this is not so. Anything more complicated than "I'm innocent, fuck you, talk to my lawyer" is full of peril. That's because when we are facing the stress of an accusation and of scrutiny, and gasping for "safe" things to say, we often wind up just blurting out something that sounds awful. There's a great scene in the movie version of Presumed Innocent that illustrates this — Rusty Sabitch has just been accused by of killing his colleague and secret lover at her home on a particular date, and Rusty blurts out something like, "What was that, a Tuesday?"
This week's case in point — California Democratic Congresswoman Jane Harman.
Occasionally events demonstrate that my favorite piece of advice to clients — just shut up — is good advice to attorneys as well. Case in point: Ed Genson, until recently one of the lawyers for potty-mouthed soon-to-be-ex-governor Rod Blagojevich. Genson has a record of taking on unpopular clients, which is a good thing — we need competent attorneys to take on hard and widely reviled cases. Genson's problem is that he's looking for the door now but can't keep his mouth shut about why.
Gov. Rod Blagojevich's chief defense attorney announced Friday that he is bailing out of the fraud and bribery case against the governor, strongly hinting that his embattled client refused to listen to his advice.
"I never require a client to do what I say, but I do require them to at least listen," Edward Genson said. "I intend to withdraw as counsel in this case."
Genson told the AP that afternoon that he did not know whether Blagojevich would file a lawsuit to block the trial.
"His action, what he's doing, isn't controlled by me," Genson said. "I'm not privy to it. I should be, but I'm not."
Look, if you make it a habit of taking on high-profile, rich, sophisticated, or politically connected clients, sometimes they're going to ignore your advice and act like dumbasses. I had a client who abruptly decided that the best way to deal with a civil suit by government agency X was to confess to wrongdoing to government agency Y, hoping that agency X would then lose interest and go away. So he did so — without telling me he was going to do it. Clients — particularly clients who see themselves as smarter than everyone else — will do things like that. Should you withdraw from defending them? Sure, if you like. But on your way out the door — just shut up. There's no principled basis to take a shot at the client as you leave. Each state's ethical rules have guidelines for what you can and can't say — and what you must say, if at all, privately to a judge — to be relieved as counsel. Follow those rules, then don't run your mouth.
Genson's error is one of pride and self-indulgence. He's miffed at his client failing to come to heel and heed his awesomeness, and he's embarrassed at the prospect that someone will associate the stupid things his client is doing with him. So he's breaching a few duties as he leaves. When he tells the media that his client is not listening to his advice, and that his client isn't keeping him in the loop, he's effectively revealing the course of attorney-client communications and violating the duty of confidentiality. Plus, he's sending a strong signal to the government that his client is out of control and not heeding legal advice, which will embolden and inform prosecutors. There's frankly no excuse for it.
Ed Genson, shut up.
So, how did we get to the point where a two-term senator who ran for the 2008 Democratic nomination (as an extreme long shot, but credibly enough to get a spot in the primary debates in 2007) can stand up at a public meeting and urge people to search out and harass the children of a federal prosecutor?
Well, it helps that we're talking about Mike Gravel, who is a little crazy. He's not take-orders-from-your-dog crazy like Son of Sam or anything. Gravel would never act on orders from his dog because he's convinced that his dog is a goddamn liar.
Also, it helps that the issue that inspired the rhetoric is the long, strange case of Sami Al-Arian.
Say you're an office manager married to an Amtrak foreman and drive a 1993 car and live in an apartment in Queens, and somebody notices that (1) you've recently given $61,600 to McCain's campaign and the RNC, most of it days after McCain endorsed offshore drilling, and (2) the business you are an office manager for is Hess Corp., one of the country's top five oil companies, and your contributions during that period plus those of Hess execs and their wives and mothers and such exceed $315,000.
Would you like to guess what I, as a high-priced white collar criminal defense lawyer, would like to tell you to do when the press calls to ask whether or not you donated your own money?
I'll give you a hint. It starts with "shhhhh" and ends with "ut the fuck up, dipshit." You don't. give. a. statement.
I'm in the market for a eye-catching design that can rival the Nike swoosh to go with my revolutionary branding catchphrase, Just shut up.