Updated 4:58 p.m.
A federal judge today found a longtime criminal defense lawyer in Washington guilty for his lead role in a scheme to fabricate evidence, a win for prosecutors in a closely watched case that raised concern in the defense bar.
The attorney, Charles Daum, was charged in a conspiracy to dupe jurors in a drug case in 2008 in U.S. District Court for the District of Columbia. Prosecutors alleged that Daum, working with two private investigators, presented staged photos to jurors to trick them into thinking that drugs belonged to his client's brother.
The plan worked: a mistrial was declared. After post-trial digging, the government charged Daum's client and three other people for their role in the scheme. The cooperators then pinned the blame on Daum, who has practiced law in the Washington metropolitan area for more than 30 years. Daum's attorney, David Schertler, argued that the client, Delante White, orchestrated and carried out the scheme and that the cooperators could not be trusted.
Senior U.S. District Judge Gladys Kessler, who presided over a month-long bench trial, didn't buy the argument. The plot, she said, was far too complex for the cooperators to have dreamed up and executed on their own. Kessler called the scheme "nefarious," saying the allegations struck at the heart of the criminal justice system. For the Justice Department's trial team, including Donnell Turner, Darrin McCullough and Tritia Yuen, the ruling was a big win.
Kessler found Daum and the private investigators, Iman and Daaiyah Pasha, guilty of conspiracy to obstruct justice. The judge rendered additional obstruction of justice guilty verdicts against Daum alone. Prosecutors indicted Daum and the Pashas in April 2011. Closings were held earlier this month.
“In his zeal to defend his client, Mr. Daum betrayed his profession and obstructed justice,” Assistant Attorney General Lanny Breuer of the Criminal Division said in a statement Friday afternoon. "It’s astounding that a lawyer could commit these crimes, which undermine the integrity of our criminal justice system. The court found Mr. Daum guilty beyond a reasonable doubt, and he now faces prison time as a result.”
Delante White, the judge said, was jailed for the duration of the evidence fabrication conspiracy. Kessler noted that White did not know some of the details of the plot, which included photos of White's brother pretending to cut up crack cocaine. The photos included duplicates of evidence the authorities seized in a raid of White's apartment in early 2008.
The judge put significant weight in recorded jailhouse phone calls between White and others in the conspiracy, saying that Daum's leadership role was clear even if his name was rarely spoken over the phone.
White and the other cooperators each received beneficial plea deals in exchange for cooperating with prosecutors in the case against Daum. Schertler and the other defense lawyers, including Gladys Weatherspoon and Bernie Grimm, who represented the investigators, urged Kessler not to trust the cooperators.
Kessler acknowledged the concern the Daum case raised in the criminal defense bar over whether prosecutors had gone too far. The Daum case was a rare prosecution of an attorney over work performed for a client. Some defense lawyers thought the prosecution of Daum was unjustified and worried about a spotlight being put on defenders.
The judge insisted her decision does not carry any wider implications. Kessler called "unwarranted" any notion that her ruling today carries consequences for lawyers in Washington.
"As counsel mention in their closing arguments, this was a difficult and painful trial, charging a member of the same profession, to which we all belong, with crimes which go to the heart of every lawyer's obligation to uphold the law," Kessler said. "The decision in this case rested solely on the specific evidence presented."
Kessler said her ruling should not be interpreted as criticism of the defense bar in Washington. "Nor should it be interpreted in any way whatsoever as a judgment on how criminal defense lawyers should, as they are required to, zealously represent their clients," Kessler said. "I have the highest respect for the criminal defense bar."
The Daum prosecution, Kessler said, raised several questions that remain without answers. Chief among which: Why would Daum risk his career—and potentially his freedom—for the $6,000 he received for his work defending White? Prosecutors, of course, don’t have to prove motive.
Kessler said "we'll probably never know Mr. Daum's motive." It's often difficult to understand, the judge said, why ordinary people commit crimes.
Schertler and Grimm said in court they reserve the right to seek a new trial. Daum and the Pashas are scheduled to be sentenced in November. The conspiracy charge carries a maximum five-year prison term.
After the verdict, Schertler declined to comment. In remarks about the verdict, Grimm noted Kessler's praise for the defense bar.
"Unfortunately, although unintended, this verdict will have a chilling effect on solo practitioners or small firms that are easy targets for the Justice Department," Grimm, a partner at Cozen O'Connor, said. "It also will also require criminal defense lawyers to further distance themselves from their clients."
Staff photo / Diego M. Radzinschi