Nov-L: Threat to McDade Bill looms (fwd)

[Missouri FreeNet Administration]

Oh, this *inhumanity* of forcing a prosecutor to adhere to ethics laws
<grin>.  Heads up folks: the bad guys are wiggling....

Yours, 
J.A. Terranson
[EMAIL PROTECTED]

--
If Governments really want us to behave like civilized human beings, they
should give serious consideration towards setting a better example:
Ruling by force, rather than consensus; the unrestrained application of
unjust laws (which the victim-populations were never allowed input on in
the first place); the State policy of justice only for the rich and 
elected; the intentional abuse and occassionally destruction of entire
populations merely to distract an already apathetic and numb electorate...
This type of demogoguery must surely wipe out the fascist United States
as surely as it wiped out the fascist Union of Soviet Socialist Republics.

The views expressed here are mine, and NOT those of my employers,
associates, or others.  Besides, if it *were* the opinion of all of
those people, I doubt there would be a problem to bitch about in the
first place...
--------------------------------------------------------------------


---------- Forwarded message ----------
Date: Thu, 29 Jun 2000 10:46:40 -0700
From: Nora Callahan <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
Cc: Doug McVay <[EMAIL PROTECTED]>, [EMAIL PROTECTED]
Subject: Nov-L: Threat to McDade Bill looms 

to unsubscribe send an email to [EMAIL PROTECTED]
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The McDade Bill enacted last year that reigned in Federal Agents and
prosecutors comes under attack due to the Alaska Airlines fiasco. This
is something we will watch closely. If you want to write a letter to
your legislators, there are some good language to imitate below - in the
quotes of the president of the NACDL.

Nora


Ethics Law Hurts Probe, DOJ Says

Jim Oliphant
Legal Times

June 29, 2000

The Justice Department says its criminal probe of safety problems at
Alaska Airlines has been severely hampered by a controversial federal
ethics law enacted last year.

In documents provided to a Senate committee, the department says that a
measure that forces federal prosecutors to adhere to state ethics rules
has stymied the long-running investigation into the airline's safety and
maintenance practices.

Seattle-based Alaska Airlines has been the target of a federal grand
jury in San Francisco since early 1999, when a mechanic claimed that
workers at the airline had falsified repair records for Alaska passenger
jets.

Earlier this year, after Alaska Airlines Flight 261 plunged into the
Pacific Ocean, killing all aboard, the Justice Department, along with
the Federal Aviation Administration, widened its inquiry into the
company's safety operations.

Department officials, as well as lawyers in the U.S. attorney's office
in San Francisco, declined to discuss the grand jury's investigation,
which has yet to produce a single indictment.

But in a report prepared for the Senate Judiciary Committee, the DOJ
says the grand jury's work was "stalled for many months" because of the
so-called McDade Amendment, a law implemented last year that forces
federal prosecutors to follow state ethics codes.

California, like most states, has an ethics provision that prohibits
lawyers from directly contacting a party who is represented by counsel.
The Justice Department claims that lawyers for Alaska Airlines used the
rule to prevent the Federal Bureau of Investigation and other
investigators from speaking with mechanics and other airline employees.

In the early stages of the Alaska investigation, the department's report
says, attempts by the FBI to seize documents and interview workers at
Alaska Airlines' hanger facility in Oakland, Calif., were blocked by
lawyers for the company who "interceded, claimed to represent all
airline personnel, and halted the interviews."

Because of the California ethics law, the report says, the federal
prosecutor was forced to end the interviews and recall the agents.

The report explains that prosecutors then attempted to subpoena the
workers to the grand jury. Again, the request was met with a response by
company lawyers, who lined up attorneys separate from the company to
represent each worker before they testified before the grand jury.

"Because the attorney for each witness insisted on a grant of immunity,
and because of scheduling conflicts with the various attorneys, the
investigation was stalled for many months," the report says. "When the
witnesses finally appeared before the grand jury, they had trouble
remembering anything significant to the investigation."

The Justice Department report also mentions the Jan. 31 crash of Alaska
Airlines Flight 261, which crashed into the Pacific Ocean, killing 88
people aboard. The National Transportation Safety Board's investigation
has focused on defects in the plane's jackscrew assembly and horizontal
stabilizer, which controls the up-and-down movement of the aircraft.

In the wake of the crash, the report says, the FBI received information
that the plane had experienced mechanical problems on the first leg of
its flight from Puerto Vallarta, Mexico, to Seattle.

But agents could not interview the airline's employees after the crash
because of the ethics law, the report says.

"Those interviews that are most often successful -- simultaneous
interviews of numerous employees -- could not be conducted because of
fear that they might result in ethics proceedings against the
prosecutor," the report says.

Alaska Airlines maintains that it has fully cooperated with FBI and FAA
investigators during the government's investigation. It has denied any
wrongdoing at its Oakland facility. The company has retained Los
Angeles' O'Melveny & Myers to represent it in the criminal
investigation.

CHANGE OF POLICY

For years, as a matter of Justice Department policy, federal prosecutors
were told that they didn't have to follow state ethics rules ?
particularly ones related to bypassing lawyers and contacting potential
witnesses directly.

The policy was intended to aid prosecutions of organized crime in the
1980s and was first detailed in a memo by then-Attorney General Richard
Thornburgh in 1989. The department's rule was clarified under Janet Reno
in 1994.

In October 1998, Congress passed a law that made federal prosecutors
subject to state ethics codes. The law was named for former Rep. Joseph
McDade, R-Pa., who was the subject of an eight-year federal bribery
investigation. McDade was eventually acquitted.

The law went into effect last year, over strenuous Justice Department
objections. Since then, the department hasn't given up the fight to
overturn it. And its efforts have support in the Senate Judiciary
Committee, where bills offered by the committee's chairman, Sen. Orrin
Hatch, R-Utah, and
Sen. Patrick Leahy, D-Vt., would establish separate ethical
proscriptions for prosecutors.

The Hatch bill would repeal McDade. The Leahy bill would specifically
allow prosecutors to contact witnesses regardless of whether they were
represented by counsel. Neither bill has made it out of the judiciary
committee.

"This law has resulted in significant delays in important criminal
prosecutions, chilled the use of federally authorized investigative
techniques and posed multiple hurdles for federal prosecutors," Leahy
said on the floor of the Senate last month.

Both the American Bar Association and the National Association for
Criminal
Defense Lawyers lobbied Congress hard for the McDade law. Kevin
Driscoll, a senior legislative counsel for the ABA, said that his
organization is reviewing the Justice Department's complaints about the
law's implementation. But, he added, the ABA's support of McDade has not
changed.

William Moffitt, a D.C. criminal defense lawyer who is president of the
NACDL, says that the Justice Department is "looking for reasons to
complain" about McDade.

"They don't have the unfettered ability to intimidate and they don't
like that," Moffitt said. "People ought to be able to go to the general
counsel (of a corporation) if they are subpoenaed and they ought to be
able to be told to get a lawyer."

Few details of the grand jury's investigation of Alaska Airlines have
come to light. The airline says that it has received three subpoenas for
information related to 12 specific aircraft. In a filing with the
Securities and Exchange Commission last month, the airline's parent
company, Alaska Air
Group Inc., said one subpoena asked for the repair records for the MD-83
craft that crashed in January.

Matt Jacobs, a spokesman for the U.S. attorney's office in San
Francisco, declined comment on the status of the investigation, as did
the press office for Justice Department in Washington.

The FAA conducted a separate probe of the Alaska Airline's maintenance
procedures and proposed a $44,000 fine, which the airline is contesting.
The agency recently threatened to shut down the airline's repair
facilities in Oakland and Seattle if it did not provide a sound plan for
improving its safety protocols.