Prosecutors in the Spotlight
You have to wonder about these prosecutors.
The prosecution team of Assistant US Attorneys Gillian Kassner, Jonathan Siegel, Devon Lash and Kayla Bensing of the US Attorney’s Office for the Eastern District of New York may have hit a snag in their case against Nicole Daedone and Rachel Cherwitz.
AUSA Gillian Kassner may have taken a step too far.
Attorneys for Daedone and Cherwitz filed a letter with Judge Diane Gujarati last week seeking to dismiss the case because prosecutors illegally used an attorney-client privileged document to tailor the unusual charge they brought against the defendants.
The case was already peculiar, since it marks the first time in US legal history that the federal government charged anyone with forced labor conspiracy without forced labor or similar substantive crime.
Defendants Rachel Cherwitz and Nicole Daedone stand charged with forced labor conspiracy.
The indictment alleges Daedone and Cherwitz conspired for 12 years to force people to labor. Prosecutors could not sustain forced labor charges because they could not produce a single instance where the women forced anyone to labor.
In bringing the unique standalone forced labor conspiracy charge, prosecutors may have had to cheat a little to get their indictment. Sadly, they got caught.
The Privileged Document
In a letter to the Brooklyn federal court, attorneys for Cherwitz and Daedone claim prosecutors had illegal access to a privileged document, which they ineptly or deliberately mishandled, and in the process may have embarrassingly botched the entire case.
Jennifer Bonjean represents Nicole Daedone
Defense attorneys, Jennifer Bonjean and Duncan Levin, told Judge Gujarati they will seek dismissal of the charge.
In an evident gesture that she takes the matter seriously, Judge Gujarati ordered the prosecution team to respond to the serious allegation of illegally using an attorney-client privileged document by Wednesday – giving them just three business days to respond.
But the judge is not alone in taking the matter seriously.
Attorney-Client Privilege
Attorney-client privilege is a fundamental legal right in the United States designed to protect the confidentiality of communications between a lawyer and their client. Rule 501 of the Federal Rules of Evidence acknowledges attorney-client privilege as a recognized legal right, worthy of protection in every US court in the land.
Attorney-client privilege plays a foundational role in maintaining the integrity and fairness of judicial proceedings, something that every first year law school student knows.
Cherwitz and Daedone said prosecutors had a document marked at the top of every page “attorney client privilege: confidential and privileged,” for 30 months.
Mishandling of Privileged Material
According to the lawyers for the defendants, the prosecutors extensively used the privileged document.
“Significantly, material in this document is directly reflected in the vast majority of the indictment,” the defense letter reads. “Some sections of the indictment track it word for word.”
Daedone and Cherwitz claim the document was “pilfered” from their company.
AUSA Devon Lash, part of the prosecution team that seeks a novel standalone conspiracy conviction through the dubious path of invading attorney-client privilege.
When they learned the prosecution had the privileged document, Cherwitz and Daedone’s attorneys emailed the prosecutors, stating their concern.
An email chain shows Assistant US Attorney Gillian Kassner’s astounding response: “We are looking into this and will be in touch. In the meantime, I can confirm members of the prosecution team will not have access to this document.”
The Grammar of Access
Let me make a point of grammar here.
AUSA Kassner writes that prosecutors “will not” have access to this document.
The operative words are “will not.”
WILL NOT HAVE ACCESS
Tense: Future tense.
Meaning: This phrase indicates they will be denied access in the future.
Structure: “will” (auxiliary verb) + “not” (negative particle) + “have” (base form of the verb) + “access” (noun).
AUSA Kassner did not write, “They did not have access.”
DID NOT HAVE ACCESS
Tense: Past tense.
Meaning: This phrase indicates that they were denied access at some time in the past.
Structure: “did” (auxiliary verb in the past tense) + “not” (negative particle) + “have” (base form of the verb) + “access” (noun).
Future vs. Past:
“Will not have access” refers to a future event, while “did not have access” refers to something that happened in the past.
Auxiliary Verb: The future tense uses “will,” whereas the past tense uses “did.”
These little grammatical differences allow you to observe how clever the prosecutors are about when the access is or will be unavailable to the prosecutors – but they do not deny they had the document.
The Mishap
AUSA Kayla Bensing, part of the prosecution team. The most recent arrival to the team, it may be no coincidence that she was previously with the conviction integrity team, and may be newly assigned to try to justify a pattern of breaches of due process in this case.
The truth is that the prosecutors do not need access anymore, because they already had access to the document for over a year and a half before filing their indictment. This may explain why, according to the defense, the language in the indictment mirrors the language in the stolen privileged document, however distorted into brand-new meanings.
The defense admits it is unclear whether the FBI directly sought the document and encouraged its theft or inadvertently obtained it.
It is clear, however, that the DOJ rules require the prosecution in possession of a suspected privileged document must hand it over immediately to a “Privilege Review Team,” also known as a “Taint Team,” before reading or analyzing it.
AUSA Prosecutor Jonathan Siegal is fighting for the right to dismantle attorney-client privilege.
Role of the Taint Team
A DOJ “taint team,” is a group of government attorneys and agents separate from the prosecution, whose purpose is to review seized materials to identify and separate any privileged information before the prosecution team can access it. Any identified privileged information is withheld from the prosecution team to ensure that the prosecution cannot use it in the investigation or trial.
The whole purpose of a taint team is to protect attorney-client privilege, while allowing the government to continue its investigation without improperly accessing privileged communications, which might result in the dismissal of the charges.
It is hard to imagine how the prosecution failed to identify that a document that says at the top of every page, “attorney-client privilege” should not have been delivered immediately to the taint team.
If the prosecutors were not afflicted with hyperopia, they would have certainly noticed that the document is clearly marked as attorney-client privilege, words that everyone knows means it is confidential and protected from even myopic prosecutors hell bent on winning over justice.
Instead, the prosecutors studied it for a year and a half. According to the defense, the prosecutors patterned their indictment based on the document, then offered to place it with a taint team – post-indictment.
Analogies of Failure
That’s like locking the safe after the robbers emptied it. Or sewing a torn parachute after jumping out of the plane, or putting sunscreen on after you’ve gotten burned to a crisp, or buckling your seatbelt around your waist after the car crash and with your head smashed right through the windshield, or buying life insurance after you’ve already died, or charging two women with conspiring for 12 years to commit forced labor and never succeeding once, and then making up charges of conspiring based on a stolen privileged document that you don’t understand and should have never looked at in the first place.
You have to wonder, really wonder, about these prosecutors.
