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Law professor accuses Bourke prosecutors of malpractice

Daniel Patrick Moynihan U.S. Courthouse, 500 Pearl Street, New York, NY (photo courtesy of the U.S. Marshals) Frederic Bourke asked a federal appeals court to consider a law review article that slams the DOJ’s handling of key testimony in his trial as unethical and amounting to legal malpractice.

Bourke is using the article in his second appeal against his 2009 conviction for conspiracy to violate the FCPA. He wants the conviction tossed because federal prosecutors allowed cooperating witness Hans Bodmer to testify about important dates that prosecutors knew were wrong.

A jury convicted Bourke of investing in an oil privatization scheme in Azerbaijan despite knowing officials there would be bribed. He was sentenced to a year and a day in prison and fined $1 million.

Bourke lost his first appeal. He argued that the trial judge issued faulty jury instructions on the knowledge element of the FCPA antibribery offense.

During that appeal, prosecutors first disclosed they had prior knowledge about inaccuracies in Bodmer’s testimony. But they didn’t confront Bodmer or tell Bourke’s defense lawyers. The appeals court then agreed to hear arguments whether the handling of Bodmer’s testimony tainted the trial and the jury’s verdict.

In a letter to the appeals court last month, Bourke’s lawyer, Michael E. Tigar, submitted a pre-publication article by Professor Monroe Freedman. It said the prosecutors’ behavior in Bourke’s trial ‘constitutes malpractice.’

Freedman, a law professor at Hofstra University Law School, co-authored the book Understanding Lawyers’ Ethics.

Freedman said prosecutors had documents proving the testimony Bodmer planned to give would be wrong. But the prosecutors chose not to confront Bodmer. ‘If the government had done so,’ Freedman said, ‘[an] important aspect of the case against Bourke would have collapsed.’

Bourke is free on bail pending the outcome of all his appeals.

Arguments in his second appeal are set for November 6 in the Daniel Patrick Moynihan U.S. Courthouse in New York City.

*     *     *

Here’s what Professor Freedman said about the Bourke case:

Another striking illustration of unethical prosecutorial policy is the statement of Assistant United States Attorney Harry A. Chernoff in his argument to the U.S. Court of Appeals for the Second Circuit, and the adoption of that policy in the government’s brief to the court. The case is U.S. v. Bourke.

Bourke was convicted, among other things, of conspiring to violate the Foreign Corrupt Practices Act by investing in a scheme to bribe the government of Azerbaijan to win control of its national oil industry.

The government’s main witness of Bourke’s involvement in the scheme was the testimony of Hans Bodmer. According to Bodmer, he had told Bourke about the scheme during what the parties refer to as a fifteen-minute “walk talk” that Bodmer and Bourke took in Baku on February 6, 1998. If Bourke had learned about the consipiracy on February 6, it would establish that Bourke was aware of the conspiracy when he invested in the venture later in February, strengthening the case against him.

As flight records in the government’s possession showed, however, Bourke was not in Baku during the time that Bodmer said the walk talk had taken place. Accordingly, at the very least, the prosecution should have confronted Bodmer with the flight document when it prepared him to testify so that he could correct his false evidence against Bourke. If the government had done so, however, that important aspect of the case against Bourke would have collapsed.

In its brief to the Second Circuit, the government defended its failure to confront Bodmer with the flight document, quoting and approving the statement made by AUSA Chernoff to the court in oral argument. The brief says: “[A]ssuming for purposes of argument that the Government knew of the flight records when it prepared Bodmer to testify … [Chernoff] stated that ‘[i]t would have been utterly improper for us to show him the flight records to point out to him that his recollection of these meetings was apparently flawed.’”

The government then adopted Chernoff’s argument, saying, “the prosecutor’s statement was an accurate and appropriate recitation of the law….”

As any litigating lawyer knows, this assertion by the U.S. Attorney’s Office, justifying the prosecution’s failure to confront Bodmer with the flight document, constitutes malpractice. For example, the Restatement of the Law Governing Lawyers discusses “litigation practice uniformly followed in the United States” in preparing witnesses to testify.

In a list of proper methods of preparation, the Restatement includes “revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the recollection or recounting of events in that light; … reviewing the factual context into which the witness’s observation or opinions will fit; [and] reviewing documents or other physical evidence that may be introduced….”

Since Bodmer remained ignorant of the flight record that contradicted his testimony, the government was able to stress Bodmer’s false testimony about the walk talk in its opening statement and to draw out Bodmer’s false testimony about the walk talk on direct examination.

Monroe Freedman’s article, ‘The Persistence of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices,’ is scheduled to appear in the Washburn Law Journal next year. It’s available from SSRN here.

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