Down the hall from the Roger Clemens perjury trial in Washington, another case has unfolded much more quietly, carrying potentially wide implications for criminal defense lawyers.
Prosecutors in the U.S. Justice Department's narcotics section brought a conspiracy charge against longtime defense lawyer Charles Daum, accusing him and two private investigators in a rare prosecution rooted in the alleged fabrication of evidence.
Senior U.S. District Judge Gladys Kessler is expected Friday to announce a verdict after a month-long bench trial in which prosecutors presented dozens of secretly recorded jailhouse phone calls and hours of in-court testimony from cooperators, including Daum's former client.
Daum's lawyer, David Schertler of Washington's Schertler & Onorato, urged Kessler not to trust the former client, Delante White, and the other cooperators, who each pleaded guilty to their role in the evidence-fabrication scheme. The central question in the case: Did Daum know the evidence he was pitching to jurors was fake? He blames his client. White pins responsibility on Daum.
Government lawyers, including Donnell Turner, Darrin McCullough and Tritia Yuen, argue that Daum was the person behind the entire scheme, directing White and others to take staged photographs that could be used to dupe jurors into thinking that drugs belonged to another person. Daum was charged in April 2011.
The prosecution argued that the conspirators lacked the legal sophistication to pull off the scheme. McCullough said Daum held onto the photographs—which depicted his client's brother with drugs—"until the very last possible opportunity so that the government would not have an opportunity to either examine them or look into the circumstances of their creation."
In his recent closing argument, Schertler said the phone calls prosecutors presented at Daum's trial--White is on many of the calls, talking with friends and relatives--do not support the contention that Daum devised and executed the fabrication scheme. Most of the calls, Schertler said, have nothing to do with Daum.
"I view them as shocking because what those phone calls demonstrate, loudly and clearly, is that the government witnesses, the co-conspirators, the core cooperators, are completely devoid of any sense of morals or any sense of honesty or any sense of integrity," Schertler said in court. "There are very few people that I have seen in my career who could take the witness stand and be less credible and less reliable than the government's cooperating witnesses in this case."
Schertler also told Kessler that there was no incentive for Daum to risk his lengthy legal career—and potentially his freedom—for the $6,000 he received for the work representing White.
"The problem here is—and the worst thing, and I've been thinking about this—is the damage is really done," Schertler said. "Mr. Daum can't go stand in front of Judge (Paul) Friedman without Judge Friedman wondering," Schertler said.
Cozen O'Connor partner Bernie Grimm represented Daaiyah Pasha, one of the defense investigators charged in the conspiracy scheme.
In his closing, Grimm said in court that "in this day and age, we are all one client removed from being Mr. Daum. We're all one client removed from some client pointing the finger at us, because that’s today's client, not the old timers that would say, 'Listen, you did your best job.'"