Note:This and other items under the Misconduct Profiles page of jpscanlan.com are supplements to the site’s main Prosecutorial Misconduct page (PMP), which addresses prosecutorial abuses in United States of America v. Deborah Gore Dean, Criminal. No. 92-181-TFH (D.D.C.).The treatment below assumes that the reader will have a general familiarity with the subject of that material and frequently references parts of the material, with links provided to such parts. It is recommended that the reader review Sections B.1, B.3, B.4, and B.9of PMP in conjunction with the review of this profile.But a detailed understanding of the material on PMP ought not to be essential to an appraisal of the conduct described here.
Arlin M. Adams assumed the position of Independent Counsel in March 1990. Shortly after he was appointed, Adams, who had retired as a judge on the United States Court of Appeals for the Third Circuit in 1987, told USA Today that he might have been appointed to the Supreme Court (in 1971) had he not offended then Attorney General John N. Mitchell by his ruling in the Berrigan case.[i] Adams was not exaggerating.According to The Brethren (1979), by Bob Woodward and Scott Armstrong (at 400):
Judge Arlin M. Adams … had nearly been nominated for the seat Rehnquist got in 1971.Nixon, in fact, had promised him a Court appointment, but Attorney General Mitchell had vetoed it because of Adams’s handling of the case of Catholic antiwar activist Daniel Berrigan.
Apart from any resentment Adams may have had toward Mitchell based on Mitchell’s keeping Adams from the Supreme Court, there is some evidence that Adams had other reasons to harbor ill feelings toward John Mitchell.According to a James Rosen’s 2008 book on Mitchell, The Strong Man (at 484),Adams had also clashed with Mitchell at the 1968 convention, which had “earned him a tongue-lashing from Mitchell that he never forgot.”
Irrespective of any actual animosity Adams may have had toward Mitchell, the very fact of his having made the remark to USA Today should have caused a responsible lawyer in Adams’ position to recuse himself from a role in the prosecution of a matter involving a person Mitchell regarded as a stepdaughter, and that would hold regardless of whether Mitchell was also involved.In fact, in light of the attention given Deborah Gore Dean in the Congressional hearings that led to Adams’ appointment, and the attention given in the press to the fact that Dean regarded Mitchell as a stepfather and that Mitchell had benefited from programs the Independent Counsel was supposed to investigate, a lawyer who felt that Mitchell had kept him from the Supreme Court should have declined even to accept the position of Independent Counsel.But one must accept the possibility that actual animosity toward Mitchell may have motivated Adams to accept the position, or, indeed, to have actively sought the position.
In any case, when it appeared the Office of Independent Counsel was about to issue an indictment alleging that Dean and Mitchell were involved in an unlawful conspiracy, Dean requested that Adams recuse himself and transfer the case to the Department of Justice.Adams refused.In doing so, by letter of June 23, 1992 to Dean’s counsel, Adams stated that he “never had, and do not have, any animosity toward John Mitchell.”He also pointed out that “it is the grand jury, not this office, that determines whether or not Ms. Dean will be indicted on particular charges.”And he noted that from prior dealings Dean’s counsel should know that he (Adams) placed a “high value on fairness and impartiality.”
At the time Adams wrote this letter, as detailed in materials made available on PMP, as well as the profile pages on Jo Ann Harris, Bruce C. Swartz, and Paula A. Sweeney, Independent Counsel attorneys were finalizing an indictment (to be issued 13 days later) concerning a conspiracy involving Dean and Mitchell that included many allegations that Independent Counsel attorneys knew or believed to be false.Further, Adams wrote the letter presumably after Independent Counsel attorneys decided not to confront Maurice Barksdale with the information on the John Mitchell telephone message slips because they feared or expected that the information would lead Barksdale to state that he caused the funding based on conversations with Lance Wilson and that Dean was not involved.SeeSection B.3 of PMP and Addendum 7 of the Swartz profile.Of course, the telephone slips (which presumably Independent Counsel attorneys had already decided not to produce in a Brady disclosure at the time the Superseding Indictment was issued, as Judge Gesell’s order required, or at any other time) by themselves, and more so in conjunction with the many documents in Independent Counsel files indicating that the Arama project was in the pipeline well before Dean became Executive Assistant, were sufficient to persuade any intelligent Independent Counsel attorney that the Arama charge was groundless.Adams must have known this at the time he wrote the letter to Dean’s counsel, just as he must also have known that every single inference underlying the charge regarding Park Towers was probably or certainly false.See Section B.4 of PMP; see also discussion in Section 3 of the profile of Robert E. O’Neill regarding O’Neill’s efforts to lead the jury to believe things about the Park Towers charge that he knew or believed to be false and Section B of the Swartz profile regarding Swartz’s efforts to deceive the court in defending O’Neill’s actions.
Adams’ point that it was the grand jury that decided what charges should be brought is pertinent in the following regard.As of the time of the issuance of the Superseding Indictment, the process of deceiving the defense, the jury, and the courts was only beginning.But Adams and the attorneys working under him had already been deceiving the grand jury.That is, presumably the grand jury was not told that numerous statements or inferences in the Superseding Indictment were false.It can be taken for granted, for example, that the grand jury was not told that the conspiratorial reference to “the contact at HUD” with regard to the ParkTowers project was not a reference to Dean.It can also be taken for granted that the grand jury was not informed that there existed certain telephone message slips suggesting or indicating that Mitchell had secured the Arama funding through Dean’s predecessor.Certainly the grand jury was not informed that, as a result of the message slips and varied other evidence, Independent Counsel attorneys were virtually certain that Dean was innocent of that charge, but that the attorneys nevertheless believed or hoped that, by leading the petit jury to believe a number of things the attorneys knew or believed to be false, and by introducing at least one false document into evidence, they could secure a conviction on the charge.SeeSection B.9a regarding the fabrication of Government Exhibit 25 to support a false entry in the Superseding Indictment.).
With regard to Adams’ involvement with the details of the prosecution, it warrants note that the former document manager discussed in Section B.9 of PMP pointed out that Adams came to the office only for weekly meetings.But it also warrants note that the former document manager stated that Adams himself, along with Deputy Independent Counsel Bruce C. Swartz, had altered or destroyed interview reports.SeeSection B.9a regarding the probable alteration of the interview report for Arama developer Aristides Martinez (discussed in relation to the fabrication of Government Exhibit 25).
With regard to the pressuring of Agent Cain to provide testimony that would seem to contradict Dean’s testimony about calling Cain in April 1989 to complain about the treatment of Mitchell in the HUD Inspector General’s report (the subject of Section B.1 of PMP, which also receives considerable attention in the profiles of Bruce C. Swartz and Robert E. O’Neill), the May 31, 2008 document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” indicates that Adams conferred with the prosecutors just prior to the calling of Cain and that it was Adams’ idea to raise with Judge Thomas F. Hogan Dean’s remark about Barrett and Hogan. These facts suggest that Adams was directly involved in the decision to present testimony that, even if literally true, was intended to lead the jury and the court to believe things Adams and his subordinate Independent Counsel attorneys knew to be false.
In any case, with regard both to the Cain matter and to many other abuses, Dean’s Rule 33 motion of November 30, 1993, fully informed Adams of the nature of Independent Counsel conduct. And thereafter Adams fully supported the effort to deceive the court regarding the Cain matter and the varied other issues. To the extent that actions of Independent Counsel attorneys in covering up the nature of the conduct regarding Agent Cain or any other matter constituted a conspiracy to obstruct justice or any other crime, Adams was almost certainly party to such crime.
As discussed in Section B.1 of PMP and the Swartz profile, while knowing with 100 percent certainty that Dean had not lied about the call to Cain, by letter of January 18, 1994, Adams himself wrote the probation officer to persuade the probation officer to recommend a six-month increase in Dean’s sentence for lying about the call to Cain.As discussed in note 5 of the Swartz profile, the decision to seek the sentence increase on the basis of Dean’s supposedly having lied about the call may have been part of an aggressive strategy in covering up the nature of Independent Counsel conduct regarding Cain (conduct, as I have noted in some places, many would regard as the suborning of perjury whether or not the testimony was literally true).Whether or not Adams did so mainly as part of the strategy to conceal the nature of the conduct of Independent Counsel attorneys concerning Agent Cain, Adams’ seeking to increase Dean’s sentence on the grounds that she lied about the call to Cain would seem a heinous act.But that could be said of the use of Agent Cain’s testimony in the first place and many other acts in the Dean prosecution – and not solely those involving the John Mitchell charges.
One other thing in Adams’ letter to the probation officer warrants note.Aspects of Independent Counsel’s efforts to exploit the fact that a white person was being tried before an entirely African-American jury – something specifically noted by the trial judge – are addressed in the latter part of Dean’s November 30, 1993 Rule 33 Motion and Part V of the materials provided to District of Columbia Office of Bar Counsel. Other such issues aside, however, it seems unlikely that Adams and his attorneys would have behaved as recklessly as they did with regard to the use of Agent Cain’s testimony but for Cain’s being African-American and Independent Counsel attorneys’ therefore believing that Cain’s seeming contradiction of Dean’s testimony would have a substantial impact on the jury.
It is with that background in mind that one must consider the points made in Adams’ letter that Dean should not receive a sentence that would lead to the perception that she was receiving more lenient treatment than other persons prosecuted by Adams (who were African-American) because she was white.He would pursue the same theme orally at the sentencing hearing of February 25, 1994 (Tr. 11-12), contrasting Dean’s situation with that of “a young minority representative who goes into a liquor store and steals a couple of bottles of liquor.”In following civil rights issues for many years, I have not seen another case where the government argued (whether said argument was couched in terms of avoidance of appearances or otherwise) that the race of a particular defendant should be taken into account as a basis for a severer sentence than the court might otherwise impose.That is hardly to say that such things never happen.But it is a surprising argument to hear from a former judge of a United States Court of Appeals, whether or not he had at any time been considered for the Supreme Court.
Arlin M. Adams resigned as Independent Counsel by letter dated May 15, 1995, having the same day met with the three judges comprising the Division for the Purpose of Appointing Independent Counsels (usually referred to as the “Special Division”).Apparently during the meeting there occurred no discussion of the suitability of the appointment of David M. Barrett to investigate HUD Secretary Henry Cisneros (which appointment would then take place on May 24, 1995), or, at least, in 1999, Adams could not recall being asked about such matter.See note 4 of the May 31, 2008 document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge.” Having not been asked about the matter, Adams, on learning of the Barrett appointment, apparently chose not to bring to the attention of the Special Division any matters arising in his investigation indicating that Barrett’s involvements with abuses of HUD’s moderate rehabilitation program rendered him unsuitable to serve as an independent counsel investigating a HUD secretary.See the July 27, 2008 document styled “The Responsibility of Independent Counsel Arlin M. Adams for the Appointment of Independent Counsel David M. Barrett.”
By letter of May 17, 1995, the judges of the Special Division wrote Adams to convey their “unmeasured appreciation for a job well done,” stating also:“No one has better carried out the role of independent counsel than you.” Putting aside everything recorded on these pages save for Judge Hogan’s sharp criticism of attorney misconduct in the most prominent prosecution of Adams tenure, this would be a curious encomium.Possibly, the panel was unfamiliar with that criticism just as it was likely unfamiliar with the circumstances that rendered the Barrett appointment so inappropriate.But entities like the Special Division ought to be familiar with such things.
Arlin M. Adams remains a highly respected former jurist.In 2007, the Earle Mack College of Law of DrexelUniversity created an Arlin M. Adams Professorship of Legal Writing, naming Judge Adams an honorary member of its inaugural class.In 2005 the Annenberg Foundation established the Arlin M. Adams Professorship in Constitutional Law at the University of Pennsylvania Law School.In an address on the professorship, Michael A. Fitts, the dean of the law school observed:
Arlin Adams' unquestionable integrity and prudent leadership exemplify the highest ideals of the legal profession. A professorship in his name does honor to Penn Law. Therefore, the entire Penn Law community is grateful to the Annenberg Foundation, which has been such a good friend to the University, for its generous support of the LawSchool and of an alumnus whom we hold in the highest regard.
There exists an ArlinM.AdamsCenter for Law and Society at SusquehannaUniversity in Selinsgrove, Pennsylvania. The Center is precisely the kind of institution that would study things like prosecutorial abuse and its director writes on that and related issues.A recent example, styled “Prosecutors Rarely Penalized for Misdeeds,” may be found at http://www.susquehanna.edu/lawandsociety/prosecutors%20misdeeds.doc.
By letter of July 9, 2008, I advised Judge Adams of the creation of the main Prosecutorial Misconduct page, requesting to be advised as to any matter where my treatment was inaccurate of unfair.Judge Adams did not respond.
Emails of July 16, 2008 to the University of Pennsylvania Law School, of July 17, 2008, and July 24, 2008, to the Arlin M. Adams Center, and of July 23, 2008 to the Annenberg Foundation raise with those institutions questions as to the appropriateness of continuing to name the various institutions after Judge Adams given the nature of his conduct documented on the Prosecutorial Misconduct page.