James P. Scanlan, Attorney at Law

9a. Developments Regarding the Fabrication of Government Exhibit 25 and Alteration of the Martinez Interview Report [b9a]

The Nunn Appendix shows that Government Exhibit 25, in the form provided to the defense, was a fabricated document.  It seems clearly to have been created in order to support certain false statements in the Superseding Indictment and the Independent Counsel’s summary charts.  Specifically, as discussed in the Nunn Appendix, the Superseding Indictment and summary charts stated that the Arama consultant agreement was reached on or about January 25, 1984 and on or about that date Nunn made his annotation concerning Mitchell’s right to half the consultant fee.  The statements created the impression that the annotation was written in the presence of Arama developer Aristides Martinez, and the suggestion that he knew of Mitchell’s entitlement to half the consultant fee would play significantly into Independent Counsel efforts to elicit from Martinez testimony that he had been told Mitchell was related to Dean and that she held an important position at HUD.  Such testimony was intended to support statements in the Superseding Indictment that co-conspirators in Count One would tell their developer clients of Mitchell’s relationship to Dean. 

Were Government Exhibit 25 what the Independent Counsel represented it to be – an April 3, 1984 letter from Martinez to Nunn enclosing a copy of the consultant agreement bearing Nunn’s annotation – it would conclusively establish that Martinez knew Mitchell was to receive half the consultant fee.  But the document, which would be introduced though Martinez as if it were a document from his files, had been pulled together from materials in Nunn’s files.[i]  Nunn did not make his annotation until after he received the April 3, 1984 letter from Martinez, and the record is clear that Martinez did not know anything about Nunn’s and Mitchell’s fee arrangement. 

My February 26, 1997 letter to Independent Counsel Larry D. Thompson, in which I requested to review originals of Government Exhibit 25 and several related exhibits, also sets out strong reason to believe that the Martinez interview report was altered in order to remove the statements that would show that Martinez did not know about Nunn’s annotation thereby demonstrating that Government Exhibit 25 was a false document.   At the time I raised this issue, I was unaware of the allegations of the former document manager that Independent Counsel Arlin M. Adams and Deputy Independent Counsel Bruce C. Swartz had altered interview reports.  As it happened, however, at the time Thompson received my letter he would also have just received the February 25, 1997 transmittal from Counsel for the Office of Professional Responsibility Michael E. Shaheen, Jr., enclosing the former document manager’s complaint and advising Thompson of the allegations of alteration of interview reports. 

In any case, a month later, by letter dated March 25, 1997, while refusing to allow me to examine the originals of any exhibits, Thompson provided what he represented to be a copy of Government Exhibit 25.  But the most crucial part of the exhibit – the consultant agreement – was missing from the copy provided by Thompson.  The absence of the consultant agreement may have occurred because the document had been tampered with.[ii]   But, as discussed in the March 31, 1997 letter to Thompson advising him that the crucial item was missing from the copy of Government Exhibit he had provided me, the following is also possible. 

The Nunn Appendix shows how, after the court refused to allow Independent Counsel attorney Robert E. O’Neill to elicit from Martinez testimony about the remark concerning Mitchell and Dean, O’Neill decided not to attempt to lead the jury and the court falsely to believe that Martinez possessed a copy of the Arama consultant agreement bearing Nunn’s annotation.  O’Neill decided instead to attempt to lead the jury and the court falsely to believe that Mitchell’s involvement with the Arama funding was concealed from Martinez.  O’Neill may then have pulled the consultant agreement from Government Exhibit 25 before introducing it into evidence, since in its original form the exhibit would seem to conclusively establish (though falsely) that Martinez knew of the annotation concerning Mitchell.  The March 31 letter requested that Thompson inform me whether the copy of Government Exhibit 25 he had provided me was a copy of the document in the form in which it was introduced into evidence or whether a part was missing from Independent Counsel files. 

By letter of April 3, 1997, Thompson informed me that he was taking my March 31, 1997 letter under advisement.  I never heard from him again despite repeated follow-ups to resolve these and related issues.  See my letters of May 14, 1997, May 26, 1997, June 9, 1997, July 3, 1997, and August 13, 1997.  My July 23 letter sets out the pending questions regarding the fabrication of Government Exhibit 25 and the alteration of the Martinez interview report.

Meanwhile, through the Freedom of Information Act, I sought to examine originals of Government Exhibit 25 and related exhibits and copies of the original of the Martinez interview report.  Deputy Independent Counsel Diane J. Smith denied access to the originals of the exhibits, asserting that copies had been provided by Independent Counsel Thompson’s letter of March 25, 1997 (though without responding to my still pending request for clarification regarding the consultant agreement that had been part of the copy of Government Exhibit 25 provided to the defense but missing from the copy Thompson had provided to me).  For a time it seemed that Smith was going to grant the request to review the original of the Martinez interview report.  But in the same February 2, 1998 letter in which Smith for the first time acknowledged the existence of the former document manager’s complaint (see Section B. 9), Smith ultimately refused to make the original available. 

This subject is also discussed Section D of the profile on Robert E. O’Neill who was presumably involved in the fabrication of Government Exhibit 25 in the form it was provided to the defense and who ultimately introduced the exhibit into evidence with or without the consultant agreement included.  See my June 15, 2009 email to Robert E. O’Neill inquiring as to whether the consultant agreement was pulled from the exhibit before it was introduced into evidence.